Discovery References

Discovery matters may be referred to an appointed referee when the court in any pending action determines that it is necessary for the 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. Discovery Referees are most commonly used in legally and/or factually complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time consuming and contentious. To improve efficiency, the trial court has the jurisdiction to appoint a referee if the judge feels that it is warranted by the situation. The process may be “voluntary” or “involuntary” and is governed by the Code of Civil Procedure (“CCP”). In California, the appointment process is governed by CCP §638 (voluntary) and §639 (involuntary).

A reference is voluntary when the parties and their counsel agree that the appointment of a referee is necessary. This will often include an agreement on who will serve as the referee. The referee is typically a retired judge, but an attorney can serve as a referee as well due to the nature of the appointment and the knowledge necessary to fulfill those duties.

A reference is involuntary when the judge independently determines that a referee is needed based on the circumstances in the case. The parties may still have the option of selecting their referee, but the judge will appoint one if the parties cannot agree on someone who is mutually acceptable.

Reference by Agreement

A referee may be appointed by agreement of the parties filed with the clerk, entered in the minutes or on formal motion. (CCP §638; California Rules of Court (“CRC”), rule 3.901(a).) A written agreement and proposed order of appointment must be presented to the judge, specifying the scope of the reference. The order must state the name and address of the referee and bear the referee’s signature consenting to serve. (CRC 3.901-902, 3.904(a).) The only limitation is that referees appointed by consent may not hear motions to seal records. (CRC 3.932(a).)

Reference by Court Order

If the parties do not consent to appointment of a referee, a referee may be appointed on motion of any party or on the court’s own motion where necessary “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.” (CCP §639(a)(5); CRC 3.920(a).)

Appointment of a discovery referee is authorized, however, only where “necessary” to hear and determine such motions or disputes. (CCP § 639(a)(5).) Circumstances justifying appointment include, but are not limited to: where multiple issues need to be resolved; where multiple motions are to be heard simultaneously; where a currently pending motion is only one in a continuum of many; where there are numerous and voluminous documents to be reviewed; and other circumstances where resolution of the discovery dispute would be extraordinarily time consuming.

A discovery referee may be also appointed to monitor depositions where antagonism between the parties might otherwise prolong the proceedings and frustrate discovery.

Referee’s Powers & Reports

For §639 references, the referee is granted authority to set the date, time and place for all hearings determined by the referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence, and to rule on objections, motions and other requests made during the course of the hearing. (CRC 3.922(e).)

For all references, the referee is required to submit a written report to the parties and the court within 20 days after the hearing is complete and the matter submitted, with a proposed order; the report shall include a recommendation on the merits and a statement of total fees charged and recommendation re allocation among the parties. (CCP §643.)

A discovery referee’s report is advisory, not determinative. The trial court must independently consider the referee’s findings before acting upon the recommendations. Any objections to the report must be served and filed no later than 10 calendar days after the report is mailed to counsel; any party who objects to the report shall serve and file notice of a hearing; and copies of the objections and any responses must be served on the referee. (CCP §643(c).) Other parties have 10 days to respond to the objections. (CCP §643(c).)

Original Documents Filed with Court; Duplicate Documents for Temporary Judge or Referee

All original documents must be filed with the court clerk, accompanied by the required fee, within the time limits specified by law. It is the filing party’s responsibility to provide the referee with a file-stamped copy of any document filed with the court clerk. (CRC 2.400(b)(1).)

The word “Referee” and the referee’s name must be shown below the “nature of the paper or the character of the action or proceeding” on all pleadings and motion papers filed in a case pending before the referee. (CRC 2.111(8).)

Exhibits in proceedings conducted outside a court facility are kept by the referee during the proceedings. Upon the referee’s request, the court clerk will deliver any exhibits previously introduced in a court proceeding that may be required in the proceeding before the referee. (CRC 2.400(c)(2).) At the conclusion of the proceedings, all exhibits must be delivered, properly marked, to the court clerk, unless the parties file, and the court approves, a written stipulation that the exhibits may be disposed of otherwise. (CRC 2.400(c)(2).)

Exhibits in the referee’s possession must be made available during business hours for inspection by any person within a reasonable time after request and under reasonable conditions. (CRC 2.400(d)(1).)

For additional information, please review the ADR Services, Inc. Discovery Reference Procedures here.