Musings By a Retired Judge on Discovery References


Musings By a Retired Judge on Discovery References

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By Hon. David A. Garcia (Ret.)

Court references are not appropriate for all cases and the authority of the courts to appoint referees or special masters is accordingly limited. Nevertheless, in cases for which the appointment of a referee or special master is appropriate, a reference can assist the parties in achieving economic, streamlined resolution of discovery disputes. Referee-managed discovery should result in cost savings to the parties, despite the expense of the referee, because of the procedures that the referee can implement and impose. This article will discuss the issue in light of California law, but the issues raised are applicable to other jurisdictions. Before discussing the advantages available to resolution of discovery disputes under the supervision of a referee or special master, we should review briefly some basic principles regarding appointment of referees.

Basic Principles Governing Appointment of Discovery Referees

California courts have the power to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery and to report findings and make recommendations thereon. [Code of Civil Procedure §639(a)(5); Jogani v. Jogani (2006) 141 Cal.App.4th 158, 176, 45 Cal.Rptr.3d 792, 803] A court can appoint a referee on application of either party or on the court’s own motion. [See CCP §639(a)] A referee may be appointed by agreement of the parties filed with the clerk, entered in the minutes or on formal motion. [Code of Civil Procedure §638; California Rules of Court Rule 3.901(a)]

Where the discovery matter is complex or where otherwise necessary, the court has authority to appoint a referee to hear and determine discovery disputes with or without the parties’ consent. Appointment of a discovery referee is authorized, however, only where “necessary” to hear and determine such motions or disputes. [Code of Civil Procedure §639(a)(5)] Accordingly, specific requirements must be met before a state court may order a reference.

Similarly a district court may appoint masters to handle pretrial matters that cannot be handled effectively and timely by an available district judge or magistrate judge. [FRCP Rule 53] A master may be appointed to supervise discovery activity (e.g., to review discovery documents for privilege). [FRCP Rule 53(a)(1); In re Armco, Inc. (8th Cir. 1985) 770 F.2d 103, 105]

A blanket order directing “any and all” discovery motions to a referee is improper in routine matters. [See Hood v. Sup.Ct. (Sears, Roebuck & Co.) (1999) 72 Cal.App.4th 446, 449, 85 Cal.Rptr.2d 114, 116, fn. 4; California Rules of Court Rule 3.927–“exceptional circumstances” required] But such orders are proper in “unusual” cases such as cases in which the inquiry necessary to resolve the dispute will consume inordinate time because a majority of the following factors exist, a need for multiple issues to be resolved, the need to have multiple motions heard simultaneously, a pending motion is only one of many, the need to review numerous and voluminous documents (especially in connection with issues based on assertion of a privilege). [Taggares v. Sup.Ct. (Mitchell) (1998) 62 Cal.App.4th 94, 105; 72 Cal.Rptr.2d 387, 393]

Situations Commonly Resulting in the Appointment of a Discovery Referee

References to supervise discreet discovery disputes may involve prospective or anticipated voluminous motions to compel or the attendance and supervision of depositions. Generally such assignments occur when the Court has found that the relationship of the parties is such that the other will try or has tried to frustrate legitimate discovery. References also often occur in situations requiring rapid resolution of issues and extensive discovery in connection with the resolution of such issues, e.g., discovery prior to the resolution of a motion for preliminary injunction or discovery prior to the resolution of a SLAPP (strategic litigation against public participation) motion.

In the case of anticipated voluminous motions, it often occurs that the meetings and conferences required of the parties prior to the filing of a motion to compel have been particularly contentious and unsuccessful at narrowing the issues and that the resultant motions to compel are unnecessarily complex and prolix. Likewise, for references requiring the referee to attend and supervise depositions, the court may have found that conduct at a deposition included numerous frivolous objections, speaking objections, or evasive answers that has raised the cost of litigation unnecessarily. Similarly, where a deposition has been suspended for abusive questioning by the examiner, the court may have appointed a referee to protect the witness on resumption of the deposition.

The Order Appointing a Discovery Referee

An order appointing a discovery referee must clearly state: whether the referee is appointed for all discovery purposes or for only limited purposes, (California Rules of Court Rule 3.922(d)(2)); the exceptional circumstance, specific to the circumstances of the case, requiring the reference (Code of Civil Procedure §639(d)(2)); and the scope of reference, i.e., the subject matter or matters included in the reference (Code of Civil Procedure § 639(d)(3)). The order must further contain the name, business address, and telephone number of the referee, and if a member of the State Bar, the referee’s State Bar number. [Code of Civil Procedure §639(d)(4); California Rules of Court Rule 3.922(b)] The order must specify the maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge (which hours may be increased upon written application of a party and for good cause shown); and the order may also state that the Court may seek the referee’s recommendation as to an allocation of referee’s fees between the parties. [Code of Civil Procedure §639(d)(5); California Rules of Court Rule 3.922(f)]

The order must also include a specific finding that no party has established an economic inability to pay a pro rata share of the referee’s fees, or if one or more parties has established an economic inability to pay a pro rata share of the referee’s fees another party has agreed voluntarily to pay that additional share of the fees. [Code of Civil Procedure §639(d)(6)] The order should specify that the referee is granted authority to set the date, time, and place for all hearings determined by the referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence, and to rule on objections, motions, and other requests made during the course of the hearing. [California Rules of Court Rule 3.922(e)] In appointments to supervise depositions, the order appointing the referee should specify that the referee has the authority to rule on all objections made during the deposition and to order that witnesses respond to questions.

Case Management Conferences Set Procedures for Resolution of Disputes

Immediately upon completion of the appointment process, disclosures [California Rules of Court Rule 3.924(b)], consent to appointment, and certification that the referee will comply with the Code of Judicial Ethics [California Rules of Court Rule 3.924(a)], the referee can and should convene a Case Management Conference to discuss the procedures that will be employed by the referee in the resolution of the pending and anticipated disputes. Prior to the hearing, if appropriate, the referee may issue an agenda.

The referee can through the Case Management Conference assist the parties in the creation of a discovery management plan, governing the conduct of such discovery as remains to be completed, as well as governing the procedure for and order of hearings on motions, the order of and timing of remaining depositions. Minimally the referee can create a structure governing the resolution of disputes if they should occur. In this way the referee can insure that the reference will increase the structure and efficiency of the discovery process and will achieve focus and economy in the resolution of disputes.

Immediately after the Case Management Conference, the referee can and should issue a report to the parties (not a formal report addressed to the Court) that will govern the conduct of the parties in the resolution of their discovery disputes. From time to time the referee may conduct additional Case Management Conferences and should establish an expedited procedure whereby the parties can convene such conferences as need occurs. Once having established procedures governing the conduct of discovery, the referee must insist on adherence, yet be flexible enough to adjust the procedures if such adjustment can achieve greater efficiencies.

Elimination of Formal Motion Practice to Resolve Discovery Disputes

Amongst the procedures available to the referee for the resolution of discovery disputes, not generally available in court proceedings, is the elimination of the formality of motion practice. Consequently, all motions can be heard on an expedited basis on letter briefing or by other simplified procedures.

The referee may, dependent on the acrimony or rigor of the opposing counsel, either attend the meet and confers or be on standby to resolve disputes as they occur and may require expedited motion practice following the meetings and conferences. Where appropriate, the referee can achieve genuine efficiencies by participating in and attending supervised meet and confers. For example, the referee can require supervised “meet and confers” treated as alternative motions to compel. By such a device the referee seeks to mediate the resolution of the discovery disputes thereby encouraging and institutionalizing cooperation and collegiality. If unsuccessful at resolving all disputes by stipulation of the parties, the referee can summarily resolve the remaining disputes, pursuant to the alternative motion to compel.

Likewise, regarding resolution of disputes that occur during depositions, the referee may attend the depositions if requested by the parties or if ordered by the court. Alternatively, the referee can be on standby and can establish a procedure whereby the referee is called upon to resolve disputes occurring during the deposition only if an attorney is instructing a witness not to answer a question. This, thereby, eliminates post-deposition motion practice and the need to resume and complete depositions at a later date.

Discovery Referees Reduce Conflict and Increase Efficiency of Discovery Process

Having the stressed situations that generally result in the appointment of referees to supervise discreet discovery disputes in mind, the personal attention and responsiveness that a referee can provide in each of these situations makes it possible to resolve such disputes expeditiously and efficiently. It has the added benefit of serving to lower the angst of the respective counsel.

The presence of a referee at a deposition generally curtails emotional conduct. Court reporters who have reported prior depositions commonly express their gratitude that a referee is managing the conduct of the deposition. In addition to reducing conflict, efficiencies are achieved by a referee’s attendance at a deposition. Instantaneous rulings on objections and control of the conduct of counsel result in shorter depositions and eliminate post-deposition motion practice.

Personal attendance and supervision of a deposition is only one service that a referee can provide to reduce stress and conflict. A referee can generally require attorneys to work collegially and cooperatively in the resolution of disputes by supervising all aspects of the discovery disputes. The resolution of the disputes should and can be approached cooperatively while not requiring the attorneys to compromise vigorous advocacy and representation, nor the need to conduct complete discovery.

Discovery Referees Provide Economic Resolution of Discovery Disputes

In conclusion, in cases appropriate for the appointment of discovery referees, referees can, should, and do assist the parties in the efficient, rapid, and economic resolution of discovery disputes while maintaining an appropriate balance with the needs and entitlement of the parties to conduct that discovery permitted by law. Referees exercise significant flexibility unavailable in court proceedings for the resolution of such disputes. This flexibility is generally achieved by the fact that ADR specialists can give individualized attention to their cases and, even in a busy practice, can accommodate the needs of the parties for immediate attention. Simply by the referee’s being available, many disputes that might otherwise have occurred disappear. Attorneys’ fees saved more than compensate for the cost of the referee. Perhaps as important, a vigilant, attentive referee reduces significantly the stress of litigation.

About the Author

Hon. David A. Garcia (Ret.), who served 20 distinguished years on San Francisco’s municipal and superior courts, is a mediator and arbitrator with JAMS in San Francisco. He is recognized as having been one of the best law and motion judges in the San Francisco Bay Area. As the law and motion judge, he supervised the Discovery Department and was from time to time required to rule on discovery disputes. While presiding over Civil Trial departments, he was assigned numerous complex cases and was called upon to manage all aspects of civil disputes, including case management, trial setting, law and motion, and discovery. As an ADR provider, Judge Garcia has served frequently as a referee and special master in matters pending in Superior Court and Federal District Court. A significant number of those references have been as a Discovery Referee. Those references have included voluntary (by stipulation of the parties) and involuntary references. As a discovery referee he has managed all aspects of discovery, including electronic discovery and discovery disputes involving highly emotional content. Judge Garcia is fluent in Spanish. He can be reached at

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