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Can a defendant propound discovery before being served or appearing?

Merced, CA |
Filed under: Litigation

In reading California Code of Civil Procedure Section 2030.020 I see the first line says a defendant can propound discovery at any time without leave of the court.

The next part says plaintiff has a ten day hold after service before he/she/it can propound discovery without an court order.

It would seem that if defendant knows a suit has been filed, could send discovery (by mail?) and require responses before ever having to appear in the suit depending when service is made on him/her/it; especially for setting a deposition which only requires ten days notice if served personally.

I' thinking the argument is that the legislature intentionally omitted any limits in the first line of CCP 2030.020.

Anyone else know something on-point or have input?

And if I read the Code right, defendant can propound discovery even before served. Yes?

Attorney Answers 6

Posted

Yes, your interpretation is correct. Unlike a plaintiff, there is no "hold" for a defendant. As a defendant, you can propound written discovery by mail or notice a deposition before you answer.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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Posted

You're right, you could serve a depo notice or some other discovery before you're served or appear, but tactically I wouldn't count on the depo actually happening that quick.

It's hard to schedule things on such short notice, and if you choose a date that doesn't work for the party or their lawyer and they ask you to continue the depo, you pretty much have to agree.

Serving discovery that fast will also preclude you from asking them for any entensions of time to respond because you'd be showing that you don't need them.

Defendants don't usually take advantage of this rule because the typical defense strategy is to stall a case, not to speed it up.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Posted

defendant's can propound discovery before answering since there is no hold on them. however, it is very uncommon.

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Posted

Yes. You are correct. You can propound discovery immediately, even before being served. That leaves some other questions to be answered.
1. Does service of discovery constitute an appearance in the action such that you don't need to be served? I have seen this position taken by attorneys though I do not know a case on point.
2. Do you want to use this tactic? You could draft your discovery and wait to serve the discovery when you are served with the lawsuit. Then you will still have your ten day advantage, or more depending on the method of service. But you won't be unnecessarily expediting the case.
3. Do you have a plan or purpose for your discovery? If you know the complaint is without merit, or you have valid defenses, then you may want to proceed and gather your evidence. But many defendants win at trial simply because the plaintiff is unprepared to meet the plaintiff's burden of proof. Conducting discovery generally causes the other side to conduct discovery and prepare its case. Sometimes a defendant may not want to push discovery because the defendant hopes the plaintiff will continue to delay and ignore its case right up to trial or dismissal.

Answers on this site are only intended to provide general information. No attorney-client relationship is intended. Specific legal advice is only provided after a personal meeting in which detailed information about a client's particular circumstances and goals are obtained.

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Posted

YES !!

Check Arizona State Laws and Rules; and if you cannot, then seek lawyer assistance !!

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Posted

YES !!

Check Arizona State Laws and Rules; and if you cannot, then seek lawyer assistance !!

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