California Cannabis Litigation in 2021 – Back to Discovery

Back in June, I wrote this post about the nearly stalled status of litigation since the pandemic began. While some courts are still incredibly backlogged (and, will give priority to criminal cases once they bear any semblance of “back to normal”), other courts have been surprisingly quick to adopt new procedures and technology in the latter half of 2020. As trials, hearings, and even status conferences have resumed in most districts we practice in, we expect litigation in general to slowly but surely pick back up throughout 2021.

In California, “case management conferences” are scheduled in every case – these are fairly quick and simple procedures where the parties advise the court on status. Typically, once all defendants have been served and/or filed answers, the court will set a trial date about 1-2 years out. This trial date triggers a host of pre-trial deadlines, perhaps the most important of which, is the deadline to complete discovery (30 days before the trial date, although you want to make sure you serve your last round of requests well before then in case motion practice is necessary to obtain responses). Discovery is where the parties will spend the bulk of their time and money.

We often work with first-time litigants and, whether they’re the plaintiff or defendant, it usually comes as a surprise how much work is necessary in the discovery phase (this is especially true for some of our international clients!) – interrogatories, inspection of documents, depositions, and requests for admission, not to mention the disputes and motion practice that is involved more often than not. As we anticipate litigants to become more active this year, here is a quick primer on the four primary discovery methods used in California:

Interrogatories (Form and Special) – Code of Civil Procedure § 2030.010, et seq.

These methods are generally construed liberally in favor of disclosure – courts will permit requests to stand unless they’re clearly improper. The entire purpose of discovery is for the parties to seek information they need to establish their claims or their defenses. That’s not to say that there aren’t protections for legitimate confidential, privacy, or proprietary interests, but these standards are high and may be difficult to prove.

Interrogatories are written questions that require written responses. California employs “form” interrogatories and “special” interrogatories. The former is simply that – the Judicial Council developed and approved an eight-page form of questions that a party can simply check boxes next to for answering. It is not mandatory to use this, but it’s a very quick and cost-effective first step. Not to mention, because these are already approved by the Judicial Council, objections rarely hold up.

Special interrogatories are specific questions that should be tailored to the claims and defenses of the case. In California, any party may propound up to thirty-five special interrogatories, no questions asked. If it’s necessary to propound more, a declaration needs to accompany the requests, explaining why more than thirty-five is warranted (i.e., the number of claims or defenses, the complexity of the issues, etc.).

Inspections of Documents, Things, and Places – Code of Civil Procedure § 2031.010, et seq.

Any party can demand to inspect another party’s relevant documents, things, or property in discovery. The purpose of this mechanism is to allow parties to review all hard evidence in the case, in their original forms. All parties in a lawsuit have a duty to preserve evidence. For our cannabis clients, this typically involves everything from organization documents to financial documents to inspections of the subject dispensaries.

Depositions – Code of Civil Procedure § 2025.010, et seq.

Depositions are question-and-answer sessions that occur in person, with a court reporter transcribing everything simultaneously. Prior to, witnesses are often prepped and may even have obligations to review certain documents or company procedures (for example, if you’re testifying as your company’s “person most knowledgeable”).

California also allows for written depositions, although these are rarely used. In such cases, the questions must accompany the notice of deposition, and there are periods thereafter for the service of cross questions, redirect questions, and recross questions.

Requests for Admission – Code of Civil Procedure § 2033.010

Requests for admission are written requests that a party admit the genuineness of specific documents, or the truth of a fact, opinion relating to a fact, or application of law to a fact. Requests for admission are different from everything else mentioned above because they don’t seek to find facts – they seek to establish them. In my opinion, requests for admission can be the most powerful tool in discovery if used correctly and at the right time – not only in getting the parties to understand their respective strengths and weaknesses, but also in making sure any future proceeding or trial is as efficient as possible.

Litigation is an investment of time and money, and we hope this post helps outline the process for those who are currently involved or contemplating it in 2021. For those who are considering litigation in Oregon, I recommend also checking out my colleague Jesse’s post on discovery procedures in Oregon. Happy 2021 and here’s to reaching a new (and hopefully better) “normal” this year.

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California, Litigation