2015 0512

http://www.jdsupra.com/legalnews/4-questions-to-ask-before-moving-for-a-d-18916/

4 Questions to Ask Before Moving for a

Discovery Protective Order
4/6/2015
by
/authors/julie-brook/

/authors/julie-brook/

Julie Brook
| CEB
https://cebca.files.wordpress.com/2015/04/153000711.jpgIn California, civil discovery is
self-executing, i.e., a party demanding discovery doesnt need prior court approval, and
the responding party may object instead of providing the requested information. An
objection often ends the matter, but sometimes it doesnt, and the party resisting
discovery has to consider moving for a protective order.
When an objection isnt enough to satisfy opposing counsel and moving for a protective
order is on the table, here are 4 questions to ask yourself:
1. Is there a risk in not moving? In some situations, it may be too risky to rely
solely on an objection, making it advisable to seek a protective order. For
example, if a party served with notice of deposition will be unavailable for the
examination and its uncertain whether the reasons for the unavailability will
establish a legally sufficient and valid excuse, seek a protective order before the
deposition. If you dont and a party fails to appear for a deposition, the examiner
may not only move to compel the deponents appearance but also may seek
sanctions.
2. Is it too expensive? Compare the expense of making the motion for a protective
order to the significance of the information sought. Is the expense really
warranted to protect that particular information?
3. Do I need the information sought? Consider whether the same information will
be necessary to prove your own case. In Steiny & Co. v California Elec. Supply
Co. (2000) 79 CA4th 285, 292, the court held that, when plaintiff asserts a valid
trade secret privilege and prevents disclosure of crucial evidence, plaintiff may be
prevented from presenting its damage evidence at trial.
4. Is the risk of sanctions low? Be confident of the merits of your motion before
filing because the court must impose a monetary sanction against any party,
person, or attorney who unsuccessfully makes or opposes a motion for a
protective order unless there was substantial justification for the unsuccessful

action or other circumstances make the sanction unjust. See, e.g., CCP
2030.090(d).
Heres the bottom line: When the requested discovery isnt privileged or wont harm your
clients interests, it may be less expensive and less burdensome to disclose the
information even though a motion for a protective order might ultimately have been
successful.
Before making the move for a protective order, turn to CEBs California Civil Discovery
Practice 15.84 for a procedural checklist, and chapter 15 for more on discovery motion
practice and sanctions. Motions for protective orders is one of the many topics covered in
CEBs program Back to the Basics of Preparing and Opposing Pre-Trial MotionsA
Course on Procedure, available On Demand.
The Regents of the University of California, 2015. Unauthorized use and/or
duplication of this material without express and written permission from this blogs
author and/or owner is strictly prohibited.
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