Informal discovery conferences in California courts

This article and accompanying self-study quiz will discuss judges' ability to conduct informal discovery conferences (IDCs) in California courts. Readers will learn about the sunsetting of legislation pertaining to IDCs, and the sources of authority for bench officers to continue to use the conferences.

Introduction

Motions to compel further responses, motions to compel depositions and productions at depositions, and motions for protective orders can take up an inordinate amount of court time and effort formally resolving disputes, which could easily be addressed in informal conferences. Recognizing this issue, courts began holding IDCs to lower the temperature of these disputes and allow cooler heads to prevail, with great success. Research has suggested that the use of IDCs reduces the number of discovery motions filed by almost 80%. (Helland & Yun, "More Talk Less Conflict: Evidence from Requiring Informal Discovery Conferences," American Law and Economics Review, Volume 25, Issue 1, Spring 2023.)

In 2017, the Legislature enacted Code Civ. Proc. § 2016.080 to codify the IDC process. Section 2016.080 repealed itself through its own terms, or "sunset," on Dec. 31, 2022. (Stats 2018 ch. 92 § 44 (SB 1289).) Nonetheless, as discussed below, California trial courts continue to be able to order IDCs in the absence of express statutory authority.

The inherent authority of the court

California trial courts have expansive authority to employ whatever procedures they see fit, so long as they do not violate any statutory or legislative guidance:

"When jurisdiction is, by the Constitution or [the Code of Civil Procedure], or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. (Code Civ. Proc., § 187.)"

There is extensive case law corroborating that a California court has broad authority "[t]o provide for the orderly conduct of proceedings before it" (Code Civ. Proc., § 128(a)(3)) and "[t]o amend and control its process and orders so as to make them conform to law and justice" (Code Civ. Proc. § 128(a)(8)). This latter provision "is consistent with and codifies the courts' traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice." (Kinney v. Clark, 12 Cal.App.5th 724 (2017), quoting Neary v. Regents of University of California, 3 Cal.4th 273 (1992); see also Hernandez v. FCA US LLC, 50 Cal.App.5th 329 (2020) [finding "no abuse of discretion by the trial court in using its inherent supervisory powers to manage proceedings before it and to set deadlines to ensure the timely handling of cases assigned to it"].) Judges have not only the ability, but the obligation to:

"eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action. (Govt. Code, § 68607.)"

In the discovery context, "Judges also have broad discretion in controlling the course of discovery and in making the various decisions necessitated by discovery proceedings." (Obregon v. Superior Court, 67 Cal.App.4th 424 (1998).)

Additionally, the Legislature "has granted the power to every court to provide for the orderly conduct of proceedings before it." (Hernandez v. FCA US LLC, quotation omitted.) The Supreme Court of California has held that "when no procedure is specified by statute or rule, judges may fashion nonstatutory procedures suitable to the specific cases before them." (Weiss v. People ex rel. Dep't of Transportation, 9 Cal.5th 840 (2020), citing Citizens Utilities Co. v. Superior Court, 59 Cal.2d 805 (1963).) The Supreme Court in Weiss qualified this statement: "Courts, however, do not have the authority to adopt procedures or policies that conflict with statutory law or the [California] Rules of Court." (Citing Jameson v. Desta, 5 Cal.5th 594 (2018).) Weiss noted this authority "'arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function.'" (Quoting James H. v. Superior Court, 77 Cal.App.3d 169 (1978).)

"[C]ourts have the power to fashion a new procedure in a complex litigation case to manage and control the case before them." (Cottle v. Superior Court, (1992) 3 Cal.App.4th 1367 (1992).) Judges in complex cases therefore have a somewhat freer hand to manage discovery proceedings. (See, e.g., Cal. Rules of Court, rule 3.400 et. seq.; Cohn v. Corinthian Colleges, Inc., 169 Cal.App.4th 523 (2008) [court in complex case could accept oral application for discovery prior to motion for summary judgment because "judges must be permitted to bring management power to bear upon massive and complex litigation to prevent it from monopolizing the services of the court to the exclusion of other litigants"]; Hernandez v. Superior Court, 112 Cal.App.4th 285 (2003) [complex court could make an order to identify documents for all defendants, even though only one filed the motion, to minimize duplication.])

Judges in coordinated proceedings have even greater authority, which at times can override the rules otherwise applicable to civil actions. (Cal. Rules of Court, rule 3.504(b); see also Isaak v. Superior Court, 73 Cal.App.5th 792 (2022), quoting Cal. Rules of Court, rule 3.504(c) [where complex court cannot follow the prescribed manner of proceeding in a complex case, "the assigned judge may prescribe any suitable manner of proceeding that appears most consistent with those statutes and rules."])

Civil courts' current IDC options

After the IDC statute's sunset at the end of 2022, there is no longer an applicable procedure governing IDCs. Absent any contrary provision of law, parties have a statutory right to file discovery motions without first conducting a conference. (See, e.g., Code Civ. Proc., §§ 2025.410(c) [party may file motion to quash deposition notice]; 2025.420(a) [motion for protective order concerning deposition]; 2025.450(a) [motion to compel deposition attendance and production]; 2025.480(a) [motion to compel deposition answers]; 2030.290(b) [motion to compel interrogatory responses]; 2030.300 [motion to compel further interrogatory responses].) Also parties must sometimes file those motions right away to avoid forfeiting issues. (See, e.g., Code Civ. Proc., §§ 2025.480(b) [motion to compel deposition answers must be filed "no later than 60 days after the completion of the record"]; 2030.300(c) [motion to compel further responses to interrogatories must be filed "within 45 days of the service of the verified response[.]"]) Courts may therefore not be able to continue on precisely as they did before. Courts seeking to prevent parties from filing any motions until after an IDC risk running afoul of the existing statutory scheme that provides an unfettered right to file motions. An instructive, if not identical, illustration is that of Wagner v. Superior Court, 12 Cal.App.4th 1314 (1993). There, the Court of Appeal reversed the trial court's setting of a discovery cutoff where no trial date had been set, in light of then-section 2024's provision that a party was entitled "as a matter of right to complete discovery proceedings on or before the 30th day . . . before the date initially set for trial of the action." (See also Code Civ. Proc., § 2024.020(a).) Under Wagner, the trial court was without power to enter a scheduling order impairing this right.

A best practice would be to simply convince parties to stipulate at the earliest possible opportunity to a pre-filing IDC procedure, incorporating the stipulation into the initial Case Management Order. That way, the parties have simply agreed among themselves to abide by the procedure, rather than it being imposed on them by law.

Nonetheless, as discussed above, civil courts still possess inherent powers over their calendars and the order of business before them, which can approximate the former IDC statute's objectives and outcomes, if not its exact procedures. Civil courts may provide, in their courtroom instructions, that no discovery motion will be heard until an IDC is conducted, except for good cause, that motions filed before an IDC is conducted will be continued until after an IDC, which the parties should schedule as soon as possible after the dispute emerges. This exercise of the court's calendaring power will allow parties to freely file motions, while maintaining the court's ability to engage with discovery disputes before expending substantial court resources. Parties would remain free to conduct pre-filing IDCs where scheduling allows.

Arguably, the sunsetting of Section 2016.080 provides courts with more flexibility in IDC scheduling, as although the court no longer has statutory power to toll filing deadlines pending the IDC (see former Code Civ. Proc. § 2016.080(c)(2)), it also does not need to hold the IDC within 30 days of granting the request. (See Id. at subd. (d).)

Conclusion

Now that the IDC statute has sunset, there is no statutory authority governing IDCs. However, courts will retain the power to manage the litigation and fashion appropriate procedures to govern discovery, while being freed of the 30-day deadline contained in the former IDC statute. Expediting discovery using IDCs comports with "the courts' traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice." (Kinney v. Clark.)

Where possible, bench officers may want to procure stipulations between the parties as to IDC procedures to avoid any issues of inherent court powers. By doing so, the "free-filing" IDC procedure described above does not violate any existing statutory right of the parties and prevents forfeiture of any of their substantive rights. Trial courts should be able to make them a part of their pretrial discovery procedures without protest from litigants, who may likewise be spared the expense of filing responsive papers and appearing at a hearing.