Right to Discovery in California: No Leave of Court

In California legal proceedings, most discovery procedures are available as a matter of right without requiring leave of court, except for certain sensitive matters such as physical and mental examinations, a defendant’s financial condition in punitive damage cases, and a plaintiff’s sexual history in sexual harassment cases, which require a court order.

By Brad Nakase, Attorney

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General Principle: Discovery as a Matter of Right

  • In California legal proceedings, most discovery procedures can be initiated and completed without requiring leave of court.
  • This means parties have the inherent right to discovery, negating the need for a “good cause” showing or court order for standard discovery processes, such as depositions or serving discovery requests on the opposing party.
  • The right to discovery streamlines the pre-trial process, enabling parties to gather necessary information efficiently.

Exceptions: Discovery Requiring Leave of Court

  • Physical and Mental Exams – CCP § 2032(d) stipulates that a court order is mandatory to compel a party to undergo a mental or physical examination, highlighting the protective measures for personal rights in the discovery process.
  • Defendant’s Financial Condition in Punitive Damage Cases – Per the Civil Code § 3295(c), accessing a defendant’s financial condition in punitive damage cases is contingent on court approval, ensuring a balanced approach to the right to discovery and privacy concerns. In most business dispute involving a party’s financial condition, a business litigation attorney can assert their client’s right to discovery, ensuring access to vital information necessary for building a robust case in commercial disputes.
  • Plaintiff’s Sex Life in Sexual Harassment Cases – Discovery regarding a plaintiff’s sexual history in sexual harassment cases, as governed by CCP § 2017(d), requires a court order, reflecting the legal system’s sensitivity to personal privacy and the right to discovery.

Procedural Aspects and Privacy Considerations

  • In cases involving sensitive topics, such as a plaintiff’s sexual history, the court adopts a cautious approach, requiring a higher standard of relevancy and specific facts to demonstrate good cause, as outlined in CCP § 2017(d).
  • These procedural requirements serve as a balance between the right to discovery and the protection of individual privacy rights.
  • Emotional distress claims in sexual harassment cases do not automatically grant good cause for discovery of other sexual conduct, as per Vinson v. Sup.Ct. and Barrenda L. v. Sup.Ct. rulings.

Sanctions and Consequences for Refusing Discovery

  • CCP § 2017(d) mandates monetary sanctions against a party that unsuccessfully opposes a motion for discovery unless substantial justification exists, emphasizing the legal system’s commitment to upholding the right to discovery while deterring frivolous or unjustified resistance.
  • A plaintiff who resists discovery related to prior or subsequent sexual conduct risks being barred from introducing evidence of such conduct during trial, as highlighted in Barrenda L. v. Sup.Ct.

Special Case: Discovery in Actions Against Psychotherapists

  • The Civil Code § 43.93(d) governs discovery in cases against psychotherapists for sexual contact, illustrating the nuanced application of the right to discovery in sensitive personal matters, where the court carefully weighs the probative value against potential prejudice.

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