Nonparty Discovery in California

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In civil litigation, non-party discovery is an effective and often necessary tool. While non-party discovery imposes real burdens on non-party witnesses, parties routinely fail to keep their end of the bargain by serving discovery that is inconsistent with the requirements of California’s Civil Discovery Act (the “CDA”), Cal. Civ. Proc. Code §§ 2016.010-2036.050. As a result, most non-party discovery is defective in some way, shape, or form. Among other defects, non-party discovery routinely is served improperly, seeks to depose non-resident witnesses, or relies on inapplicable sections of the CDA. And to even a greater degree than with party discovery, non-party discovery almost universally is substantially overbroad and unduly burdensome. This article attempts to provide an overview of California’s non-party discovery rules and identify how those rules differ from party discovery. While there is a great deal of overlap, there are many slight, yet significant, differences. Understanding these rules will allow non-parties to better defend against improper, unwarranted, and unduly burdensome discovery.