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A New Trial Reopens Discovery
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a new trial repopens discovery

According to California Code of Civil Procedure Section 2024 (a) the discovery cutoff date is 15 days "before the date initially set for the trial of the action." Continuance or postponement of the trial does not reopen or extend the discovery cutoff. The appellate courts had a difference of opinion, however, on whether, when a case was being retried, the discovery cutoff applied to the date initially set for the original trial or the date initially set for the retrial.

The California Supreme Court decided to review the matter in Fairmont v. The Superior Court of Riverside County and on January 27th ruled that, "in the case of a mistrial, order granting a new trial, or remand for a new trial after reversal of a judgment on appeal, the last day for completing discovery is 30 days before the date initially set for the new trial of the action."

In arriving at its decision, the court reviewed the legislative history of the Civil Discovery Act of 1986. Under the former rule 333, discovery was allowed until 30 days "before the date of trial." The purpose of section 2024 was "to eliminate a source of discovery abuse and unnecessary trial delays caused by parties seeking continuances or postponements of trial for the sole purpose of extending the time for discovery."

The court also felt that reopening discovery would allow the parties to obtain the necessary information to resolve the issues that led to the new trial. "In the typical case, when a new trial is ordered, the nature and scope of the issues will have been affected, requiring substantial investigation of new points or issues that were not adequately addressed in the original proceedings. The parties are afforded a trial de novo, along with 'the right to introduce any evidece on the issue involved, not only the evidence introduced at the prior trial but also any additional and new evidence.' (Guzman v. Superior Court, 19 Cal.4th at p. 708) Reopening discovery may serve to clarify facts and eliminate gaps in the evidence that resulted in the need for a new trial in the first case."

The decision is available from the Supreme Court at www.courtinfo.ca.gov/opinions/.



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