A new DVRO law allows limited civil discovery but with careful checks and balances

Among the new laws on Jan. 1, 2024 is Family Code section 6309 ("section 6309") which modifies the law and culture in domestic violence restraining order (DVRO) matters. Here are responses - representing my views only - to what soon will be frequently asked questions. (All code references are to the Family Code unless otherwise specified.)

Q: I'm in a big rush - can you just tell me the bottom line on what I need to know?

A: The legislature has now expressly permitted limited civil discovery in DVRO matters. The statute operates very differently from anything you've ever seen before under the Civil Discovery Act (Code of Civil Procedure (CCP) section 2016 et seq.) so you had better slow down to learn about this new law.

Q: OK. You say this statute changes the law concerning civil discovery in DVROs. What was the law before?

A: The law was unclear. There was no statutory or case authority directly on point. Whether DVRO discovery was or was not permitted varied among judicial officers. There were good arguments on both sides. On the one hand, the Discovery Act plainly applies to Family Code proceedings (section 210) and interrogatories and depositions in, say, marital dissolution or parentage cases are not uncommon. DVRO proceedings arise under the FC (section 6200 et seq.) Ergo, ran the syllogistic argument, the Discovery Act applies to DVRO proceedings.

On the other hand, the evidentiary hearing in a DVRO must occur (with limited exception) within 21 days from filing (section 242) but almost all the discovery tools in the Discovery Act have notice and response periods that exceed 21 days. For example, a petitioner cannot even serve a deposition noticed for 10 days later until 20 days after service of the "summons." (CCP 2025.210(b).) Therefore, ran the legislative intent argument, that the legislature could not have intended the Discovery Act to apply to DVROs where time to the evidentiary hearing is of the essence.

Many judicial officers (JOs) adhering to the no-DVRO-discovery point of view also believed that the potential for trauma-inducing litigation abuse arising from civil discovery in DVRO matters was unacceptably high. And JOs have also been sensitive to the delay in holding the evidentiary hearing likely to be caused by civil discovery proceedings under the Civil Discovery Act. Delay in DVRO matters can have serious pernicious effects including persons remaining restrained (ultimately determined without good reason) under a TRO or an alleged victim remaining unprotected (likewise ultimately determined without good reason) in the absence of a TRO. Delay, brought about by discovery proceedings or otherwise, thus involves both constitutional and serious safety concerns.

Yet a problem for the no-DVRO-discovery camp has been that sometimes it seems that justice required some form of discovery. For example, where the petitioner claims that respondent's campaign of texts and emails is a form of coercive control - a species of domestic abuse - and plans to rely on those communications to prove the case. The respondent's insistence before the hearing to see all the alleged communications to be offered by the petitioner in order to prepare a defense seems fair.

The varied approach by JOs to discovery in DVROs, some allowing it, some not, undermined predictability of outcome.

Q: So what do you want me to understand?

A: That the debate about whether discovery is permitted in DVROs is settled. The answer is: yes, it is.

Q: Litigants can undertake discovery in DVROs as a matter of right just as in a civil or a divorce case, right?

A: No, no, no, no!

Q: Um, can you explain?

A: The legislative findings in section 6309(a) express a deep concern for the risk of litigation abuse and undue delay occasioned by discovery proceedings in DVRO cases. In consequence, the legislature made two things crystal-clear: (1) civil discovery in DVRO matters is not permitted except as set forth in section 6309 and (2) "a court may grant a request for discovery only upon a showing of good cause." (Section 6309(c)(emphasis supplied).) So, no discovery as a matter of right. And litigants wanting discovery had better be prepared to make a strong showing of good cause. No abstract fishing expeditions.

Q: Well, what's "good cause" to permit the discovery?

A: This is one of those "hard to define but I know it when I see it" kind of judicial determinations. Good cause - or no good cause - is the judicial conclusion resulting from the balancing of at least the following: legal relevance, the importance of the requested information, the likelihood such information exists, the burden associated with its production, the existence (or not) of a TRO and its terms, the risk of the discovery inducing trauma, the proposed method of discovery and the risk of delay. It is a "common sense based on the totality of the circumstances" evaluation. (See M.S. v. A.S. (2022) 76 Cal.App.5th 1139, 1144 ["good cause" whether to include children as protected parties requires court to consider totality of circumstances])

Q: When can a party request discovery in a DVRO matter?

A: Section 6309(c) provides: "A party may make an oral or written request for discovery to the court at an evidentiary hearing pursuant to this part." (Emphasis supplied.) This is very different from the general operation of the Civil Discovery Act so please be aware. Thus, the respondent may not serve a deposition notice or a request for production of documents with a DV-120 Response to DVRO. Nor may a petitioner serve a request for production of documents with the DV-100 Request for DVRO. Nor may the parties propound discovery otherwise before the evidentiary hearing.

Q: How does a party request discovery in a DVRO matter?

A: Orally or in writing, remember? I suggest both. Here is how that might sound:

"Your honor, I am the respondent. The petitioner says that I have exercised coercive control by virtue of a series of emails and text messages I sent. I deny it. I would like to see any such emails or text messages reasonably in advance of the hearing so I can prepare a defense. And, your honor, I have prepared a very short, to the point request for production of documents that is narrowly tailored and designed not to be burdensome. I have copies for petitioner and the court and with your permission, I would like to hand them to your bailiff for distribution at this time."

Q: What options does the other party have when such a request is made?

A: Section 6309(c)(3) provides: "A person shall not be required to make a written objection or response to a request for discovery but may express any objection or response orally or in writing at the hearing." Here is what that might sound like:

"Your honor, I'm the petitioner. I don't mind providing copies of the emails and the texts. In fact I have them all with me today for the hearing. But I do object to any delay of this hearing today. When I filed my DVRO request, I asked for the respondent, who I used to live with, to pay my cell phone bill and to return my dog, but the judge denied those items when issuing the TRO in this case. I can't wait any longer."

Or the respondent might say:

"Your honor, the respondent's request for discovery is bogus and you should deny it. All the information he needs to know is already in my declaration filed with my DV-100. That's all I'm going to use and he's had several weeks to prepare for this hearing. He's asking for this discovery just to mess with my mind and to show that he thinks he's the boss."

Q: What options are available to the JO?

A: Many. The JO can just deny the request for discovery as lacking in good cause. This is so even if the discovery would be colorably relevant and potentially useful but the delay associated with the production of the information is not in the interest of justice. Or the JO can permit some or all of the requested discovery. In that case, the JO will be considering, among other things, whether the requested method of discovery (e.g., a deposition) is necessary or whether there is a less intrusive means (e.g., an interrogatory) of acquiring the information; whether protective measures are appropriate to protect against inducing trauma; whether fewer items of discovery than requested will meet the good cause need; and how much time may be reasonably necessary for the production of the requested information. The JO will also consider modifying the TRO - or issuing a TRO - in light of new information and the prospect of delay.

Q: If a party cannot make the discovery request until the evidentiary hearing, will such a request then postpone the hearing?

A: Not necessarily and you should not count on any postponement. If the respondent is making the request for discovery and it is permitted, section 6309 specifically calls out the option of the court commencing the hearing anyway to get the petitioner's evidence, in whole or in part, into the record but postponing the completion of the hearing. This will come up, for example, when a petitioner explains that all of petitioner's witnesses are in court today for the hearing, took a day off of work and cannot afford to come back some day in the future.

Q: How does Section 6309 impact a party's ability to obtain their own medical records, business records, police reports and the like?

A: Not at all. Section 6309(g) provides: "Nothing in this section is intended to take away rights afforded by the Domestic Violence Prevention Act. Nothing in this section is intended to infringe on the ability of abuse survivors to receive their police reports and evidence pursuant to Section 6228 or on parties' ability to discover their own business records without obtaining court permission, including medical records, phone records, or recordings of calls to 911, to provide corroborating proof."

Q: Does section 6309 apply to mutual restraining orders and requests for renewals?

A: Yes.

Q: My opposing counsel and I often agree in DVRO matters to engage voluntarily in civil discovery, stipulating to a continuance of the evidentiary hearing. Can we still do that?

A: I don't see why not. Section 6309 is about non-consensual discovery and the risk of delay. If the parties agree otherwise (and there is no hint of overborne will), the court likely will not otherwise have a problem. But good practice will be to reduce your agreement to a stipulation and proposed order to avoid problems later.

Q: Can a litigant do standard Civil Discovery Act discovery in, say, a dissolution case where a DVRO matter is also pending?

A: In my view, the answer is yes so long as the discovery is not designed to obtain evidence for use in the DVRO matter. Obviously, however, there will be "cross-over" issues of fact resulting in the potential for dispute. In that event, the JO will have to sort it out. If there is time before trial or the Section 217 hearing on the non-DVRO proceeding, it is likely wise to hold off on discovery until the DVRO matter is decided.

Q: What's the best way to get the discovery I think I need from the JO at the evidentiary hearing?

A: Be minimalist in terms of amount of information (e.g., two requests for production, not ten); method of discovery (e.g., an interrogatory, not a deposition); and potential for delay (e.g., agree to continue the hearing for a week, not a month.) Also, be realistic about agreeing to modify the TRO. If the respondent has not seen their children in three weeks and visitation can be safely accomplished, offer that up.

On the other hand, petitioners, you can reduce the chances of a finding of good cause for discovery by being fulsome and complete in your DV-100. And saying so: e.g., "Petitioner does not intend to offer any evidence not otherwise set forth in the DV-100."

Q: Any last words of advice?

A: Yes. When the parties in the DVRO matter are both represented by counsel, JOs will still be expecting civil and productive meet and confer sessions about discovery. There is no reason why counsel may not discuss in advance, and try to come to an agreement, about discovery that may be requested at the evidentiary hearing. In fact, waiting to drop it on the other side for the first time at the hearing may motivate the JO not to permit the discovery whereas, "Your honor, I advised counsel about this ten days ago" may be received with a different attitude. On the other hand, JOs will not expect, or desire, a meet and confer on discovery matters among self-represented litigants especially where there is a no-contact TRO in place.

Last, understand that family law JOs are already dealing with crushing caseloads and calendars, and the prospect of now having to sort out discovery problems "on the fly" at the evidentiary hearing is not going to be met with relish by the bench. Whether petitioner or respondent, make it as easy as possible for your JO.