Greyhound Corp. v. Superior Court In and For Merced County

• Decision Date: 03 August 1961
• Citation: 15 Cal.Rptr. 90,56 Cal.2d 355
• Court: California Supreme Court
• Parties: , 364 P.2d 266 GREYHOUND CORPORATION, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF MERCED, Respondent; Earline Z. Clay et al., Real Parties in Interest. Sac. 7274.

Page 90

15 Cal.Rptr. 90

56 Cal.2d 355, 364 P.2d 266

GREYHOUND CORPORATION, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF MERCED, Respondent;

Earline Z. Clay et al., Real Parties in Interest.

Sac. 7274.

Supreme Court of California, In Bank.

Aug. 3, 1961.

Rehearing Denied Aug. 30, 1961.

Carroll, Davis, Burdick & McDonough and Richard B. McDonough, San Francisco, for petitioner.

No appearance for respondent.

T. N. Petersen, Merced, for real parties in interest.

PETERS, Justice.

In this proceeding an alternative writ of prohibition was granted for the purpose of reviewing an order of discovery made by respondent court in a pending action in which petitioner is the defendant and Earline Z. Clay and Leslie Randolph Clay (the real parties in interest) are the plaintiffs. The order was made pursuant to plaintiffs' motion for an order requiring defendant to produce and permit the inspection and copying or photographing of certain described documents. The motion was predicated upon section 2031 of the Code of Civil Procedure, which is a portion of the discovery act enacted in 1957 (Stats. 1957, chap. 1904). There are also pending five other cases involving various facets of the discovery act (Carlson v. Superior Court, 15 Cal.Rptr. 132; West Pico Furniture Co. of Los Angeles v. Superior Court, 15 Cal.Rptr. 119; Steele v. Superior Court, 15 Cal.Rptr. 116; Filipoff v. Superior Court, 15 Cal.Rptr. 139; Cembrook v. Superior Court, 15 Cal.Rptr. 127). Although each of the six cases presents its own particular issues, there are certain general contentions that are common to all. For convenience, we will discuss those general considerations in this opinion, thus preventing unnecessary repetition.

The general problems running through all of the cases are six in number. They can be listed as follows:

1. What discretion is vested in the trial court in discovery matters, and to what extent are the appellate courts bound by the exercise thereof? ¹

2. What showing is necessary to support. an order granting discovery?

3. Need discoverable material be such as will be admissible in evidence at the trial of the action?

4. Are the discovery statutes unconstitutional because they permit unreasonable searches and seizures?

5. What is the nature and extent of the attorney-client privilege protected from discovery under the act?

6. To what extent, if any, should discovery be allowed when a party seeks material which is peculiarly the work product of his adversary or the adversary's attorney?

Before specific answers can be given to these questions the act must be examined in its entirety to ascertain, if possible, its general purpose and intent.

In the instant case, the order involved was entered pursuant to the provisions of subdivision (a) of section 2031 of the Code of Civil Procedure. It reads as follows:

'(a) Upon motion of any party showing good cause therefor, and upon at least 10 days' notice to all other parties, and subject to the provisions of subdivision (b) of Section 2019 of this code, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by subdivision (b) of Section 2016 of this code and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by subdivision (b) of Section 2016 of this code. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.'

Subdivision (b) of section 2016, incorporated by reference in the foregoing quotation, reads as follows:

'(b) Unless otherwise ordered by the court as provided by subdivision (b) or (d) of Section 2019 of this code, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. All matters which are privileged against disclosure upon the trial under the law of this State are privileged against disclosure through any discovery procedure. This article shall not be construed to change the law of this State with respect to the existence of any privilege, whether provided for by statute or judicial decision, nor shall it be construed to incorporate by reference any judicial decisions on privilege of any other jurisdiction.'

Subdivision (b)(1) of section 2019, also incorporated by reference in section 2031 via its inclusion in section 2016, reads as follows:

'(b)(1) After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than stated in the notice, or that it shall not be taken except by allowing written interrogatories by one or more parties, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs and expenses, including attorney's fees, as the court may deem reasonable.'

These sections comprise the statutory provisions governing inspection of documents and other objects (both real and personal) in the possession or control of the adversary party litigant. By the enactment of such provisions the Legislature made certain changes in the rules existing under the predecessor statute (Code Civ.Proc. § 1000) which governed inspection prior to 1958. It also incorporated certain procedures, already adopted and tested in the federal courts and in the judicial system of several states. The fundamental purpose of those enactments was to expedite the trial of civil matters by allowing litigants an adequate means of discovery during the period of preparation for trial. (Report of Committee on Administration of Justice of The State Bar of California, reprinted in Journal of The State Bar of California, vol. 31, No. 3, pp. 204 et seq., and in 1 DeMeo, California Deposition and Discovery Practice, p. 2 et seq.) To accomplish this purpose the Legislature not only enacted the three code sections avove quoted, but also enacted an entire article providing for various discovery procedures. In order to interpret any one section it is necessary to consider the entire article. Only in this fashion can the general legislative intent be ascertained.

It should first be noted that the Legislature repealed the then existing statutes on discovery, and retained only such elements of the prior system as were re-enacted in the new article. The new system differs fundamentally from the old.

A summary of the new system, together with its more important changes, is as follows:

By section 2016 it was provided that a litigant might take the deposition of 'any person, including a party * * * for the purpose of discovery or for use as evidence in the action or for both purposes.' This provision greatly enlarged the prior right to take depositions which, insofar as a nonparty witness was concerned, was limited to situations wherein the circumstances indicated a danger that the witness whose testimony was required would not be available at the time of trial (prior Code Civ.Proc., § 2021; see analysis in 15 Cal.Jur.2d 690). Thus, with the exception of the deposition of a party or his agent or employee, depositions previously were provided for the sole purpose of obtaining testimony to be used at the trial. The new rules specifically provide that the procedure be utilized also for the purpose of discovering facts, without any thought of producing those facts at trial.

Subdivision (b) of the same section (quoted above) also enlarged upon the scope of the examination allowed, by providing that the deponent might be examined on any matter relevant to the subject matter involved in the action (as distinct from the previous rule that questions on deposition might be successfully objected to under those rules of evidence which prevail at trial; i. e., competency, materiality or relevancy to an issue involved in the trial). ² The same language is incorporated by specific reference into the provisions for other types of discovery,...