Consider Using Informal Discovery While Sheltering In Place

Julie Brook, Esq., reprinted with permission from CEB.

There are many informal discovery techniques you can use to gather information without using the procedures described in California’s Civil Discovery Act (Code Civ. Proc., §§ 2016.010-2036.050). Most of these techniques can be easily adapted to use as we shelter in place.

Informal discovery basically entails requesting specified information and documents and then accepting what is offered. It’s less expensive than formal discovery and may also be faster and easier.

Here are some common examples of informal discovery practices:

• Interviewing witnesses (in person, by phone, or by videoconference);
• Conducting investigations or inspections of property or persons (e.g., background checks, land records, surveillance, Google Earth images);
• Gathering public information through research (e.g., in technical publications, newspapers, or the Internet) or by making legally prescribed requests (e.g., to obtain copies of building permits, public government agency records, or Secretary of State records);
• Exchanging information with other parties through agreement of counsel.

Interviews and inspections are great fact-gathering tools. They give you a chance to assess evidence outside the presence of the opposing side, determine which witnesses should be deposed, and consider how to frame the case for settlement. But they should not be rushed; to be fruitful, they often require a substantial commitment of time and resources. 

The ever-increasing technological tools at an attorney’s disposal are great for informal discovery. For example, researching publicly available information has become easier and faster than ever. Background checks, scanned document repositories, social networking sites, and other sources can provide a wealth of information. Government offices and libraries also maintain vast repositories of documents, which can be obtained through information requests.

When necessary, you can use the California Public Records Act (Govt. Code, §§ 6250–6270) to get at public documents. No reason need be given for the request for public documents; all you must do is pay the cost of copying the documents. (Govt. Code, § 6253(b).) The right to disclosure under the Act is broader than the relevancy-to-subject-matter standard of civil discovery (see Code Civ. Proc., § 2017.010) and may be enforced by writ of mandate. Wilder v. Superior Court (1998) 66 Cal.App.4th 77, 83.

Information is also available from the federal government through the Freedom of Information Act (FOIA) (5 U.S.C. §§ 552–553). But this is of limited use because the FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the federal courts, or state or local government agencies.

For a step-by-step approach to pretrial discovery, including a discussion of informal discovery, check out CEB’s California Basic Practice Handbook, chapter 4. On all aspects of discovery, turn to CEB’s California Civil Discovery Practice.