Filing a motion to compel production of documents by a NON-PARTY in California litigation is the topic of this blog post. Motions to compel can be a very useful tool in forcing a non-party to produce requested documents.
Code of Civil Procedure § 2025.480 states in pertinent party that, “(a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing.”
A witness who is not a party to the action but has been subpoenaed to appear for deposition, is subject to the following sanctions for failure to appear or refusal to be sworn: Motion to compel under Code of Civil Procedure § 2025.480(b).
A nonparty opposing such a motion without substantial justification is subject to sanctions. See Code of Civil Procedure §§ 2020.030; 2025.480.
The above rules apply to subpoenas for production of documents at deposition, and also to business records subpoenas.
Monetary sanctions are available against nonparties who “flout the discovery process” Temple Comm. Hosp. v. Sup. Ct. (Ramos) (1999) 20 Cal.4th 464, 476-477 (1999). (emphasis added.)
Before filing a motion to compel the party seeking to compel the production of the documents must make a reasonable effort to meet and confer with the other party to avoid the need for judicial intervention.
This means more than just sending one letter, or making one phone call. It is good practice to send the first meet and confer letter requesting further responses within 10 days, if no responses are received, then another meet and confer letter should be sent mentioning the first letter and demanding further responses within 7 days. If no responses are received then a phone call should be made in a last attempt to work something out.
Every court has the power to compel obedience to its judgments, orders, and process in an action or proceeding pending before and to use all necessary means to carry its jurisdiction into effect. Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstance involving discovery disputes.
Moreover, one of the principal purposes of civil discovery is to do away with the sporting theory of litigation, namely, surprise at trial and such purpose is accomplished by giving greater assistance to parties in ascertaining the truth. See Thoren v. Johnston and Washer, 29 Cal.App.3d 270, 274 (1972).
All costs associated with the motion to compel, including court costs and attorney fees are recoverable in filing a motion to compel. A party seeking a motion to compel should be sure to document all of their attempts to meet and confer, and also document all of their costs associated with filing the motion such as copies of documents, etc.
Attorneys or parties to litigation in California who wish to view a portion of a sample motion to compel production of documents by a NON-PARTY that is sold by the author please see below.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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