What is (briefly) and how does one initiate "pre-filing discovery" in California? I need to compel answers to questions I have been getting stonewalled on.
Answer
Normally, a pending action is required to conduct discovery in California. Special procedures exist, however, for perpetuation of testimony or obtaining other evidence prior to filing suit. A court order, however, is necessary to obtain such discovery. That is governed by Code of Civil Procedure section 2035.010, and the sections following.
I suggest you look at those sections, and read them carefully to determine whether you even meet the criteria to conduct pre-filing discovery.
Answer
Mr. Roach is correct. I write to emphasize that you have to meet the criteria for pre-filing discovery, which is for the preservation of evidence that cannot be obtained or preserved after the case is filed. It is not allowed to be used to find out evidence to make your case. Paragraph (b) of section 2035.010 specificially states: (b) One shall not employ the procedures of this chapter for the purpose either of ascertaining the possible existence of a cause of action or a defense to it, or of identifying those who might be made parties to an action not yet filed. The only two situations in which I have personally seen pre-filing discovery used were: 1. taking depositions of people who were expected to die before discovery would be allowed in a case even if filed immediately, and 2. to preserve physical evidence in a construction defect case that would be destroyed or covered up by completion of the work, and none of the potential parties wanted to delay the project until a case could be filed and the post-filing limits on commencing discovery passed.
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