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Motion to Compel Production of Documents by a Non-Party in California

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.

 

Attorneys or parties in California that would like more information on a California discovery litigation document package containing over 35 sample documents including a sample motion to compel production of documents can use the link shown below.

California discovery litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

10 Responses

  1. Cheers! Very helpful tip on this post!

  2. Hi Stan, great article. I’m faced with this issue right now, and this was a great introduction. However, I’m a little unclear on one part. You write: “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.” What’s the authority for this practice? Is that from personal experience or from a case/statute? I did not see that in the cases you cited. If you could let me know I’d really appreciate it. Thanks!

    • From personal experience. Many judges want to see that you made more than just one attempt to meet and confer. Technically speaking you may not have to meet and confer if no responses are received, but as the old saying goes, the law is what the judge says it is. If you are seeking sanctions in particular it is good practice to meet and confer. Otherwise you may win, but receive token sanctions.

  3. Great blog post, thank you.

  4. Hi Stan, I bought the motion and plan to file tomorrow. I am not sure how to file and serve this document though. Does it need a Request for Orders FL-300? Does it get served with a summons since it is to a non-party deponent? Can you help me out? Thanks

    • I would suggest getting a hearing date before filing if possible, then serving personally on the non-party. Some Courts may require you to first file the motion to get a hearing date. Include all of the facts regarding your good faith efforts to meet and confer before filing the motion to compel.

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