Personal Injury, Probate, Employment, & Complex Litigation


Discovery Cutoff

Even the most experienced attorneys will sometimes blow statutory deadlines when to file/serve things. In most occasions it is not fatal to your case, you just may need to get the court’s permission to file after the deadline. While most courts will give the attorney a hard time, it is generally granted. However, things become much more complicated when you are staring down the barrel of trial deadlines.

Trial deadlines are the deadlines in which you must file items prior to trial for your trial, or the last day to file pre-trial motions or propound discovery. This post is about the discovery cutoffs. There are many rules, and the deadlines themselves are very confusing.

For example, Code of Civil Procedure section 2024.020 gives the deadline to have discovery due as 30 days before trial, with the last date to hear a discovery motion 15 days before trial. However, this is incredibly misleading because to have the last discovery responses due 30 days before trial is if you propound the discovery 60 days before trial. But that is only if you personally serve the discovery. But, code of Civil Procedure section 1013 gives a 2-day extension for the responding party to answer if you serve the discovery via overnight mail and 5 days if you serve using normal USPS delivery. That means, that to ensure the discovery is due on the correct date, you may have to propound it as many as 65 days before trial.

Now, all of that was just to ensure that your discovery had to be answered. However, many times discovery responses will be nothing but objections and so you must fight with the responding party just to get them to answer your questions. If that is the case, then you only have 15 days from the last date of response for your motion to be heard. Keep in mind, discovery responses can be served by US mail, so as long as the responses are in the mail on the last day to serve responses, they have timely answered the discovery requests. However, this cuts into your time to analyze the responses, meet and confer with the responding party and then file and serve a motion to compel if one is necessary. With all that said, the kicker is this: Code of Civil Procedure section 1005 requires 16 days notice to opposing counsel for a motion to compel, which means that even if you could secure a hearing date for 15 days prior to trial, you would have to personally serve the motion 16 days before trial—as in 1 day before the statutory discovery cut-off.

All of this is to say that the actual discovery cutoff is much sooner than the 30-day statutory period, and this type of confusion in the rules exist in all of the cutoff rules.

The discovery cutoff rules apply to non-expert depositions as well. However, non-expert depositions have their own rules.

In California, there is a separate discovery process where you force the opposing side to disclose all of the experts they are going to use in the case. However, if you fail to make a timely expert demand you may lose your opportunity to prevent them from using any expert not disclosed during discovery. A demand for experts must be sent out within 10 days after trial has been set or 70 days before trial—whichever is the later date (CCP § 2034.220). Experts must be designated either 20 days after the demand has been served or 50 days prior to the trial date—again, whichever date is later (CCP § 2034.230).

You then must take all experts depositions within 15 days of the start of trial, and must have any motion regarding an expert deposition heard within 10 days of trial (CCP § 2024.030).

Obviously, it is clear by just looking at the rules that the cutoff for experts is later than that of normal discovery, and that is because you want to be able to depose experts at the latest time possible so that the expert doesn’t come up with any new opinions that they didn’t have when you deposed them.