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self-study / Civil Practice

Discovery referees: A useful tool

Michael S. Fields

Email: msflb@aol.com

Michael is an arbitrator, mediator and discovery referee. For nearly 30 years, Mr. Fields has authored and lectured on arbitration, mediation and other trial practice topics. He had a 46-year active personal injury trial practice, before retirement in 2015.

For complex discovery issues, reference to a discovery referee is a useful tool to expedite the trial process. A discovery referee can be appointed by agreement of the parties, motion of a party, or motion of the court. The appointment is usually to a retired judge, experienced attorney, or court commissioner.

For the most part, reference appointments are controlled by California Code of Civil Procedure Sections 638 through 645.1 and the California Rules of Court 3.900 through 3.932. Additionally, the California Judicial Council provides three optional forms; viz., ADR-109, "Stipulation or Motion for Appointing Referee"; ADR-110, "Order Appointing Referee"; and ADR-111, "Report of Referee."

Discovery references, as well as other reference topics, are divided into two categories: "general reference" and "special reference." The Code of Civil Procedure has three sections allowing discovery references. For a general reference, Section 638(a). For a special reference, Sections 638(b) and 639(a)(5). Although court reference case law is largely old, there are several recent decisions.

What Is a General Reference Appointment?

A general reference is limited to an appointment by the court made pursuant to Section 638(a). Parties move for a general reference pursuant to a stipulation or preexisting agreement. They request a referee be appointed to review the facts, take evidence, and rule on the issues. The reference can include all case issues or be limited to a few issues, such as discovery disputes. A recent case best defines a general reference as an authorization for "the referee to consider any or all of the issues raised." Yu v. Sup. Ct. (Bank of the West), 56 Cal. App. 5th 636 (2020).

A referee's Section 638(a) general reference order is not reviewable by the referring trial court. Instead, once presented with the referee's order, the court clerk enters judgment. The only trial court consideration is a post judgment motion. Yu.

In another recent Section 638(a) general reference case, substantial discovery sanctions ordered by the discovery referee were upheld. Lindsey v. Conteh, 9 Cal. App. 5th 1296 (2017). Because the reference was made by stipulation pursuant to Section 638(a), the referee could make an enforceable sanction order and the trial court lacked power to overrule it. The Lindsey decision comports with Section 644(a), which states: "In the case of a consensual general reference pursuant to Section 638, the decision of the referee or commissioner upon the whole issue must stand as the decision of the court, and upon filing of the statement of decision with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court." (Emphasis added.)

Because Section 638 provides that a referee "may" be appointed, courts have discretion to deny a reference motion upon consideration of judicial economy and other factors. Tarrant Bell Property, LLC v. Sup. Ct. (Abaya), 51 Cal. 4th 538 (2011).

What Is a Special Reference Appointment?

Discovery issue referees appointed under Sections 638(b) and 639(a)(5) are "special references," as "they limit the referee to specific factual findings to aid the trial court in its determination of the action." Yu. Yu further defines a special reference appointment under Section 639 as "nonconsensual," and they are "always considered special references."

The Lindsey court distinguishes a special reference from a general reference: "Although a special reference may be made with or without the consent of the parties, a general reference requires the parties' prior consent so as to avoid an unlawful delegation of judicial power." Lindsey defines a special reference as, "an appointment to a referee made pursuant to section 638, subdivision (b), or section 639, giving the referee authority to perform certain specified tasks and report a recommendation back to the trial court for independent consideration and further action by the court."

A further definition of a special reference is found in Section 644(b). It provides that references made under Section 638(b) and Section 639 are special references requiring the referee to submit a report and recommendation to the court based on the referee's findings. Such special reference reports are "advisory." Section 644(b).

A Section 638(b), reference is made on the motion of a party. It is based on a preexisting agreement requiring disputes of any kind to be brought before a referee for evaluation, with findings reported to the referring court. Such references can be on any topic of dispute, including discovery disputes.

A discovery dispute requiring a Section 639 special reference referral is set forth in Section 639(a)(5). Such reference is made by the court upon motion of a party or upon the court's own motion. An order appointing a discovery referee under Section 639(a)(5), must set forth the exceptional circumstances necessitating the special reference. Rule 3.922 (c)(2).

The Order Appointing the Referee

The parties can agree upon a specific referee or each side can submit up to three names, from which the court will chose one. Section 640. Appointment of a specific referee can be objected to on numerous statutory grounds. Section 641. An order appointing a Section 638 referee is to comport with Rule 3.902. An order appointing a Section 639 referee is to comport with Rule 3.922.

A chosen referee is required to submit a certification to the court. The certification avers a willingness to serve as the chosen referee, and there has not been and there will not be any violation of specified ethical rules. The proposed referee must also submit a declaration to the parties disclosing past relationships, if any, with any party or a party's attorney. Rules 3.904 and 3.924.

Payment of the Referee's Rees

For a Section 638 subdivision (a) or (b) appointment, the parties' preexisting agreement normally binds the parties to payment of a referee. For a Section 639(a)(5), discovery referee appointment, a party lacking the economic ability to pay a 50% portion of the referee's fee cannot be ordered to pay it. Taggares v. Sup. Ct. (Mitchell), 62 Cal. App. 4th 94 (1998). Also, Sections 639(d)(5), and 645.1(b). If one party pleads an economic inability to pay the referee's fee, the opposing party can agree to pay the entire fee. Sections 645.1 and 639(d)(6). The maximum hourly rate to be charged by the discovery referee for a Section 639(a)(5), appointment must be set forth in the court's appointment order. Section 639(d)(5).

Discovery Documents Presented to the Referee

For economy of time and expense, it is best to bundle discovery docfuments for presentation to the referee. For example, a motion for further response to interrogatories should be bundled with the opposition and reply documents. Documentary evidence presented at the hearing must comport with Rule 3.930 requiring court filing of documents and exhibits prior to presentation at the hearing.

The Hearing

A court hearing of a discovery dispute that would be open to the public requires the referenced hearing to be open to the public. To accomplish this, the referee is required to notify the court clerk of hearing schedules and contact information. The court clerk then posts those items for viewing by the general public. Rule 3.931. An order for a Section 639(a)(5), discovery referee appointment is required to include detailed hearing authorizations. Rule 3.922, subd. (e).

The Referee's Report

Unless the court orders otherwise, the referee's report must be submitted to the court within 20 days after the hearing. Section 643(a). For a general reference, the referee's report becomes a decision of the court and judgment, upon the court clerk's entry. Section 644(a). A report from a special reference referee is advisory and can be accepted or rejected by the trial court. Section 644(b).

Conclusion

The many code sections and court rules regarding referee appointments can be confusing. Some overlap, and some are contradictory. Due to word count restraints, this article cites a limited number of applicable codes and rules. When faced with the opportunity to appoint a discovery referee, the entire gambit of codes and court rules set forth in the first paragraph of this article should be reviewed. 

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