At Hackard Law we actively fight for our clients in estate and trust litigation. Estate litigation, whether in probate court, civil court, or both, presents discovery challenges. We want to get information that often estate wrongdoers do not want to give up. Legitimate discovery disputes are one thing, protracted, unnecessary and obstructive discovery objections are another. Protracted discovery disputes are evidenced by reams of moving papers, opposition papers, and reply briefs that kill trees and fill litigation case file folders. Courts tire of the paperwork, clients tire of the costs, and lawyers like our team at Hackard Law regret that such disputes delay justice. Nonetheless, there are some rays of hope to economize and make these often protracted, pricey and resource-intensive court fights more efficient.
"When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: ¶ * * * (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon" (Code of Civil Procedure, § 639(a)(5)).
There are some limitations on blanket discovery referee references. "A discovery referee must not be appointed under Code of Civil Procedure section 639(a)(5) unless the exceptional circumstances of the particular case require the appointment." (Rules of Court Rule. 3.920(c).) While these limitations are listed in the California statute, as a practical matter, hard-fought discovery disputes in trust and estate matters often meet the definition of an "unusual case."
"Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.
In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties' objections where that procedure is necessary, not merely convenient. (§ 639, subd. (e).) Where one or more of the above factors unduly impact the court's time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.
On the other hand, certain factors will always militate against reference. Resolution of legal issues underlying discovery requests which are complex, unsettled or of first impression, lie peculiarly within the purview of the court. Further, where there are parties to the litigation who are not involved in these particular discovery proceedings, but who will be affected by the final rulings, it is the trial court which is best able to determine who these parties are and to what extent they may be affected, and best ensure they are properly noticed and their interests protected" (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105-106).
Some lawyers seem to measure their success based by the amount of paper that they're able to generate in a discovery dispute. At Hackard Law we disagree with this approach, but we also know that it is a reality in some litigation and the preferred tactic of some litigators in estate, trust or probate disputes. Cases like these justify the appointment of a discovery referee, and the appointment supports efficient litigation - often a better application of everyone's precious time and money.
Probate or civil courts face all kinds of issues in estate and trust fights locked in protracted litigation, from will contests to elements of elder financial abuse. With a large number of documents to be reviewed and the other influencing factors in play, the appointment of a discovery referee might be the best way forward.
"If the referee is appointed under section 639(a)(5) to hear and determine discovery motions and disputes relevant to discovery, the order must state that the referee is authorized to set the date, time, and place for all hearings determined by the referee to be necessary; direct the issuance of subpoenas; preside over hearings; take evidence; and rule on objections, motions, and other requests made during the course of the hearing." (Rules of Court, Rule 3.922(e).)
The bottom line: If you are currently involved in a huge discovery dispute that could influence the outcome of your estate or trust lawsuit, ask your lawyer about the appointment of a discovery referee. And if you're facing potentially tough litigation over a family estate or trust, you can call Hackard Law today at 916-313-3030. Protecting our clients and their interests is our mission. We'll be happy to see how we can best help you. Thank you.