What is the structure of the civil court system?
In the United States, there are parallel state and federal court systems, consisting in each case of a trial court, an intermediate appellate court and a Supreme Court. Although there are important differences between the two systems, the focus of this chapter is the California state court system.
The trial court in the state court system is the Superior Court. Each county in the state has its own set of Superior Courts. These are the courts of primary jurisdiction for all civil disputes involving amounts in controversy in excess of US$25,000. See the California Code of Civil Procedure (CCP), section 86.
Trials and pretrial matters are generally supervised by a single, all-purpose Superior Court judge who is assigned to the case at the inception of the proceeding. Litigants have the ability to exercise one peremptory challenge to the assignment of such a judge.
The next level up is the California Court of Appeals, which is the state’s intermediate appellate court. There are six districts of the Court of Appeals, which have jurisdiction over appeals arising from the Superior Courts located within certain geographic regions of the state. Thus, for example, the Second Appellate District is the appellate district that handles appeals arising from the Los Angeles Superior Courts.
Each appellate district may be further sub-divided into divisions, which are individual units of three-judge panels who hear appeals. Thus, an appeal from a judgment rendered by the Los Angeles Superior Court will mandatorily be heard by one of the divisions of the Second Appellate District.
The California Supreme Court represents the top level of appellate review in California. The Supreme Court is based in San Francisco and consists of seven justices, who participate together in connection with the determination of matters as to which the court has granted review or has otherwise determined to hear.
The California court system does not include specialist commercial or financial courts.Judges and juries
What is the role of the judge and the jury in civil proceedings?
The traditional distinction between the role of the judge and jury in civil matters is that, while the jury determines all issues of fact, the judge controls all issues of law. The judge exercises this function, in part, by ruling on jury instructions and on motions for directed verdict or non-suit.
During the course of the trial, the judge is permitted to ask questions of witnesses, although most judges exercise this right sparingly. Unlike the practice in many civil law countries, the judge does not perform an inquisitorial or fact-finding role during a civil trial.
The right to a jury trial in a civil matter is guaranteed under both the US and California Constitutions. The principal exceptions are where the underlying right or claim is equitable in nature or where the parties have stipulated to arbitration or some other recognised alternative dispute resolution (ADR) procedure. Importantly, and in the absence of an enforceable arbitration provision, pre-dispute jury trial waivers are not enforceable in California. See Grafton Partners, LP v Superior Court 36 Cal 4th 944 (2005). Even where the parties’ contract contains a choice of law providing for the application for the law of another state, and where the law of that other state permits pre-dispute jury trial waivers, California courts will still decline to enforce pre-dispute jury waivers. Rincon EV Realty LLC v CP III Rincon Towers, Inc, 8 Cal App 5th 1 (2017).
Judges who sit on the state court’s trial bench (the Superior Court) may in some cases be appointed by the Governor or compete in a general election for ‘open’ seats. As to those judges who are appointed by the Governor, there is strong impetus for the appointment of ‘diverse’ candidates.Limitation issues
What are the time limits for bringing civil claims?
California’s CCP sets out the limitations periods that apply to particular claims or causes of action. For example, under section 339(1) of the CCP, an action for negligence is governed by a two-year statute of limitations. By contrast, an action for breach of a written contract is governed by a four-year statute of limitations as provided by section 337 of the CCP.
Importantly, these time limitations may have different rules pertaining to the accrual of the limitations period. For example, a cause of action for breach of contract generally begins to run from the time of breach, irrespective of whether the plaintiff had actual or constructive knowledge of the breach. By contrast, some causes of action in tort do not accrue until the plaintiff either knows or should have known of the underlying injury or circumstances giving rise to the claim.
Parties may suspend, or toll, the running of particular statutes of limitation by agreement. Thus, it is not uncommon for parties who are exploring settlement to enter into a ‘tolling agreement’, whereby the running of the statutes of limitations is tolled during the time such an agreement remains in effect.Pre-action behaviour
Are there any pre-action considerations the parties should take into account?
Normally there are no prerequisites to filing suit. However, certain pre-action steps may be required to be undertaken by a plaintiff either because of the nature of the claim or the underlying agreement.
Some kinds of civil claims, including those against government entities such as cities, counties and the state, require that the plaintiff assert an administrative claim, and have that claim denied, before bringing a civil suit. In addition, the pursuit of certain employment claims sometimes requires that the former employee obtain a ‘right to sue’ letter from the California Labor Commissioner.
Alternatively, there may be pre-suit requirements set out in the parties’ underlying contract or agreement. For example, a loan agreement or promissory note may require that the payee or beneficiary give the borrower or obligor a written demand for payment, and an opportunity to cure, before filing suit. Other agreements may require pre-suit mediation or resort to some other form of ADR before bringing civil litigation.
As to orders at the inception of a case concerning disclosure of documents, witnesses or other information, this is an area where state and federal practice differ.
Under state court practice, the disclosure of documents, witnesses and other information is generally controlled by the discovery process – that is, the party seeking the production of documents, the identification of witnesses or other information is obliged to serve formal requests concerning same on the adverse party.
In federal court, by contrast, rule 26 of the Federal Rules of Civil Procedure requires voluntary disclosure near the inception of a case (and in any event before either side may commence formal discovery) of the documents on which a party will rely; the names and identities of key witness; and other basic information that is supportive of the underlying claim or defence. Although this disclosure under rule 26 may be supplemented, documents or witnesses not disclosed by a party through this means may be excluded at trial.
For both claimants and defendants, all litigants must maintain and preserve electronic records, including emails. The failure of a party-litigant to preserve to those records, and the consequent loss of those records, could result in the court giving a jury instruction concerning spoliation of evidence, which could adversely affect that party-litigant’s credibility in the eyes of the jury.
For parties who are sued in state court, an initial strategy call will be whether there are any opportunities to change the forum for the litigation. Defendants ought to evaluate whether there are any opportunities to have the case sent to arbitration; removed to federal; or transferred to a court in another jurisdiction. Defendants should also consider at the outset of litigation whether there are any coverage opportunities under any policies of liability insurance.
For parties initiating litigation, the selection of forum is critical at the outset. In addition, plaintiffs need to give consideration at the outset to the availability of provisional remedies, such as injunctions and pre-judgment attachment, as the issuance of such provisional remedies often have an outcome-determinative impact on the course of the litigation.Starting proceedings
How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?
A civil action is commenced by filing suit and causing the summons and complaint to be served on the defendants. Parties joined as defendants in a civil action in California generally learn of the pendency of the suit when they are formally served with the summons and complaint. Under California Rule of Court 3.110(b), service of the complaint must be accomplished within 60 days after the filing of the complaint, and proof of service attesting to same must be filed with the court within that time period.
The state court system in California has been facing chronic fiscal problems for a number of years. This has resulted in judges pushing civil cases into mediation or other forms of ADR in an effort to relieve this pressure on the court’s docket. By contrast, the accepted wisdom is that the dockets of California’s federal courts are not as congested. In addition, it is widely believed that federal court judges are more inclined to dispose of cases before trial by way of granting motions to dismiss or motions for summary judgment.Timetable
What is the typical procedure and timetable for a civil claim?
Under the CCP, the plaintiff in a civil suit must effectuate service of the summons on the defendant within 60 days after the filing of suit. Following the effectuation of service, the plaintiff may commence discovery against the defendant after the passage of a statutory 10-day hold period, which itself can be modified by the court (see CCP section 2031.020(b)).
Early on in the proceeding, the court normally holds a case management conference (CMC) at which the trial date and various pretrial dates and deadlines may be set.
In Los Angeles Superior Court, the timeline to reach trial is approximately 16 to 18 months after the filing of a civil complaint.Case management
Can the parties control the procedure and the timetable?
The parties, through their counsel, will have input at the CMC concerning the setting of trial and pretrial dates, but ultimately the judge will have the final say concerning both the setting of those dates and the pace at which the action proceeds to trial.Evidence – documents
Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?
In federal court cases, the parties are mandated under rule 26 of the Federal Rules of Civil Procedure to exchange documents early in the case. By contrast, there is no such requirement in state court practice for the voluntary exchange of documents at or near the inception of the case. Instead, production of documents in state court practice is generally governed by formal discovery.
There is a duty on the part of parties to preserve evidence, especially electronically stored information (ESI), when a claim is asserted or a suit is brought. Based on recent appellate precedent, most notably Zublake v UBS Warburg (217 FRD 309 (2003)), parties have an affirmative obligation to preserve ESI once litigation is filed (and in some circumstances even before that), and a failure to do so can have catastrophic consequences.
Even as to information or documents not consisting of ESI, a party could face a claim of spoliation of evidence if that party fails to preserve evidence pending trial. Such claim could be asserted either by way of an affirmative cause of action or, more commonly, by the adverse party either commenting to the jury on, or obtaining a jury instruction about, that failure to preserve evidence. In either event, such failure to preserve evidence pending trial could create enormous substantive and atmospheric problems for the party who fails to preserve such evidence.
Importantly, and as regards ESI, a California lawyer’s responsibility is not fully discharged by simply instructing a client to comply with e-discovery rules. The duty extends to the attorney’s obligation to make sure that the client follows through thoroughly with respect to the disclosure and production of such evidence. See, for example, Formal Opinion No. 2015-193 of the Standing Committee on Professional Responsibility of the California State Bar.Evidence – privilege
Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?
There are both common law and statutory privileges that apply to evidence in the form of documentary evidence and testimony. The most notable of these privileges is the attorney–client privilege, which is codified in California Evidence Code section 950 et seq.
Where this privilege is invoked in connection with the production of documents, the party invoking the privilege must ordinarily supply the other side with a ‘privilege log’ that identifies the documents withheld on this ground by date, author, recipient and, in some cases, subject matter. See CCP section 2031.240 and Hernandez v Supreme Court (112 Cal App 4th 285, 291–292 (2003)). The furnishing of such a ‘privilege log’ is required so that the party who has propounded the document request will have the ability the test the application of the privilege in respect to particular documents. Where the parties are unable to informally resolve their disputes concerning the application of the privilege, the court or a discovery referee may sometimes conduct an in camera review of the documents. Importantly, the California Legislature in 2017 amended CCP 2016.080 to authorise the use of informal, court-supervised discovery conferences to streamline the process of enforcing rights to civil discovery.
The advice of in-house counsel is normally privileged from disclosure by the attorney–client privilege. In some cases, however, in-house counsel will serve both a legal and non-legal role. In those cases, the court will often have to ascertain the predominant role that individual was serving before determining the application of the privilege. See Chicago Title Ins Co v Supreme Court (174 Cal App 3d 1142, 1151-1152 (1985)).
There is another privilege that is becoming increasingly significant in California. Cal Evidence Code section 1119 bars the introduction of anything said, or anything communicated in writing, if the statement was made, or the writing was prepared ‘for the purpose of or in the course of a mediation’. The California Supreme Court has ruled in Cassel v Superior Court, 51 Cal 4th 113 (2011) that this privilege trumps a client’s ability to sue his or her lawyer for malpractice on account of the lawyer’s alleged conduct during the course of a mediation. In 2017, the California Law Revision Commission proposed a recommendation to the government that mediation confidentiality not be applied for purposes of supporting or defending a claim of attorney malpractice connected to the mediation.
In 2019, a new statute came into force with regard to mediations. The statute requires an attorney representing a client participating in a mediation to provide that client with a written disclosure. That disclosure, which must be signed by the client prior to the commencement of mediation, must contain the confidentiality restrictions pertaining to mediation that are contained in California’s Evidence Code.Evidence – pretrial
Do parties exchange written evidence from witnesses and experts prior to trial?
Witness lists and trial exhibits (other than those for impeachment) are normally exchanged shortly before trial. Parties are not required to identify the expected subject matter of any of the anticipated trial testimonies of the witnesses.
In the case of expert witnesses, CCP section 2034 governs their identification and disclosure. In brief, any of the parties to a civil lawsuit may issue an expert witness ‘demand’ to the other parties. The issuance of such a demand requires all parties to identify any expert witnesses they anticipate calling in the case and to specify the subject areas of each expert’s anticipated testimony. Except in very narrow circumstances, experts not properly identified in response to a party’s ‘demand’ will not be permitted to testify at trial.
In 2019, California’s Code of Civil Procedure, which governs procedures in state trial court, was amended to allow parties to stipulate to an initial disclosure requirement modelled after rule 26 of the Federal Rules of Civil Procedure.
If parties opt in by stipulation to this requirement, they would be required to exchange information at the inception of litigation. That information will include the identity of all persons likely to have discoverable information, along with the subjects of that information, that the disclosing party may use to support its claims or defences; a copy or description of all documents, including electronically stored information, that the disclosing party has in its possession, custody or control that may be used to support its claims or defences; insurance agreements; and indemnification agreements.
This new state court procedure is triggered only by agreement of the parties, whereas the disclosure requirements under rule 26 of the Federal Rules of Civil Procedure are mandatory.Evidence – trial
How is evidence presented at trial? Do witnesses and experts give oral evidence?
Evidence at trial is presented by oral testimony of witnesses, including experts. In addition, evidence at trial usually also includes documentary evidence.
The plaintiff normally presents its case first, which is then followed by the defendant’s case. Rebuttal evidence is then presented after the defendant’s case.Interim remedies
What interim remedies are available?
There are several pre-judgment remedies available in civil cases in California.
Where the plaintiff sues in contract for a liquidated amount, the plaintiff may apply for a writ of attachment. This is a pre-judgment remedy that operates to create a lien on some of the defendants’ assets pending the conclusion of trial. Thus, if a writ of attachment is levied on a defendant’s bank account, only the sums in that account over and above the amount of writ will be available for defendant’s use pending trial.
A party seeking a writ of attachment will typically at the same time request the issuance of a temporary protective order (TPO). The TPO enjoins a defendant from transferring, hypothecating or pledging a particular piece of property (which is often also the subject of an accompanying attachment application) pending the outcome of the case.
There are various instances where the appointment of a receiver is indicated. For example, where a loan secured by real estate is in default, the lender will often bring suit for judicial foreclosure and seek the appointment of a receiver. In such instances, the appointment of a receiver will effectively divest the borrower of control over the real estate collateral pending the outcome of the suit.
Finally, various forms of injunctive relief are also available in civil lawsuits, although the Mareva order, or ‘freeze order’, available in UK courts is not available in California. By contrast, the attachment and TPO remedies discussed above run only against specific items of property. In addition, and again unlike a Mareva order, pre-judgment or interim remedies issued by US courts are typically not enforced by their foreign counterparts with respect to property located in other jurisdictions.Remedies
What substantive remedies are available?
The typical remedies available in civil proceedings are money damages, injunctive relief and declaratory relief.
As to monetary damages, the court’s award of such damages may also include recovery of costs (which are normally recoverable as a matter of right by statute), pre-judgment interest (also recoverable as a matter of right by statute where the amount of the money damages was in a liquidated amount at the time of filing) and attorneys’ fees (but only where the recovery of attorneys’ fees is authorised by the parties’ contract or available by statute). Punitive damages are also recoverable, but only in tort actions or where otherwise available by statute. In this regard, recent decisions of the US Supreme Court have placed constitutional limits on the permissible amount of punitive damages in relation to actual damages.Enforcement
What means of enforcement are available?
A distinction must be made between disobedience or non-compliance with a money judgment and disobedience or non-compliance with a court order requiring that a party does, or refrains from doing, certain things.
There is no sanction for a party’s failure to satisfy a money judgment. Instead, the judgment creditor has certain rights to levy execution or otherwise enforce a money judgment, but the judgment debtor incurs no direct sanction for resisting such enforcement efforts.
The disobedience of a court order requiring that a party does, or refrains from doing, certain things, however, subjects the non-complying party to the possibility of contempt. In this regard, contempt proceedings are quasi-criminal in nature, and the non-complying party may be subjected to fines or imprisonment, or both, for its disobedience.Public access
Are court hearings held in public? Are court documents available to the public?
Except in extraordinary circumstances, civil proceedings are open to the public, as are the pleadings or other court filings in a civil action, which are available to public view, inspection and copying. Thus, in keeping with the strong public policy favouring access to court records, judicial records may be sealed only if the court finds ‘compelling reasons’; see, for example, Pintos v Pac Creditors Ass’n, 605 F3d 665, 677-78 (9th Cir 2010). In this regard, a litigant’s desire to avoid embarrassment or annoyance caused by public disclosure of court records is not considered to be a sufficiently compelling reason to warrant the sealing of the record of legal proceedings (Oliner v Kontrabecki, 745 F3d 1024 (9th Cir 2014)).
In some cases, the parties will seek to ‘seal’ some or all of their pleadings or court filings. In some cases, this is done to shield trade secrets or other proprietary information from public disclosure. The procedure for filing pleadings under court seal is set out in the California Rules of Court.Costs
Does the court have power to order costs?
Costs incurred by a prevailing party in civil litigation are recoverable as a matter of right in California (see CCP section 1032). Those costs are claimed by the prevailing party by filing a cost bill following entry of judgment. Importantly, the costs recoverable under this procedure are limited in nature (for instance, filing and motion fees), and do not normally include attorneys’ fees, which are only recoverable where specifically authorised by statute or the parties’ underlying agreement.
Section 1030 of the CCP permits the superior court to order a non-resident plaintiff (including a foreign corporation) to post a bond to secure the payment of the defendant’s costs and attorneys’ fees. The threshold requirement for obtaining such relief is relatively low, namely that the plaintiff resides out of state or is a foreign corporation, and there is a ‘reasonable possibility’ that the defendant will prevail. The purpose of this provision is to enable a California resident to secure the recovery of its costs (and, where authorised, its attorneys’ fees) against an out-of-state or foreign plaintiff. Although CCP section 1030 is a state statute, the federal courts have the inherent power to require plaintiffs to post security for costs and typically follow the forum state’s practices in this area.
In a recent development, the California Supreme Court decided that a party who is dismissed from a lawsuit pursuant to a settlement agreement is entitled to the recovery of statutory costs under CCP section 1032(a)(4). See DeSaulles v Community Hospital of the Monterey Peninsula, 62 Cal 4th 1140 (2016).
There have been two recent developments concerning the recovery of costs, particularly as they relate to electronically stored information (ESI).
CCP section 1033.5 was recently amended to allow for the recovery (as part of the costs awarded to a prevailing party) of fees ‘for the hosting of electronic documents if a court requires or orders a party to have documents hosted by an electronic filing service provider’.
In addition, under CCP section 1985.8, which applies to subpoenas seeking ESI, allows the court in particular circumstances to allocate the cost of the retrieval and production of ESI from a third-party custodian of the ESI to the party who serves the subpoena seeking those records.Funding arrangements
Are ‘no win, no fee’ agreements, or other types of contingency or conditional fee arrangements between lawyers and their clients, available to parties? May parties bring proceedings using third-party funding? If so, may the third party take a share of any proceeds of the claim? May a party to litigation share its risk with a third party?
Contingent fee agreements are authorised in California. Those agreements typically allow counsel for a prevailing party to share in some percentage of that party’s recovery.
Third-party litigation funding arrangements are also permitted. Under such an arrangement, a third party will provide financing to the plaintiff or its counsel for the prosecution of the lawsuit in exchange for a percentage interest in the recovery.
Although no appellate cases in California have directly addressed these issues, other state courts have expressly found that third-party funding arrangements are enforceable and do not violate the early common law prohibition on champerty. See, for example, Charge Injection Technologies v DuPont, 2016 Del Super LEXIS 118. Indeed, another Delaware case, Carlyle Investment Management LLC v Moonmouth Company, SA, 2015 Del Ch LEXIS 42 held that communications between a claimant and a litigation funding firm is subject to protection from discovery by reason of the work product doctrine.
Finally, earlier this year a group of US Senators introduced proposed new legislation concerning litigation funding arrangements. That proposed legislation would mandate disclosure of both the existence and terms of any litigation funding agreements in an any federal class action or multi-district litigation.Insurance
Is insurance available to cover all or part of a party’s legal costs?
There are various forms of liability insurance that may provide for both the funding of a party’s defence in a lawsuit, as well as any indemnity payment that an insured party may make – for example, a payment in settlement or a payment to satisfy a judgment.
Typical forms of such liability insurance include commercial general liability (CGL) insurance and directors’ and officers’ (D&O) liability insurance. Where it is triggered, CGL insurance usually obligates an insurer to defend its insured in the litigation and also to pay those amounts (within the policy limits) that its insured becomes legally obliged to pay. By contrast, D&O insurance usually provides reimbursement to an insured entity for sums advanced by that entity for the defence of its directors and officers.
Importantly, as a matter of both statute and public policy, punitive damages are not insurable under California law. Thus, even though a liability carrier may be obliged to defend its insured in respect of all causes of action (whether covered or uncovered) that are asserted against its insured (Buss v Superior Court, 16 Cal 4th 35 (1997)), the liability carrier will ordinarily issue a ‘reservation of rights’ as to those claims that include a request for punitive damages or that are otherwise not covered under the policy.
In 2014, the California Supreme Court issued an important decision that limited an insurer’s duty to defend advertising injury claims (Hartford Casualty Ins v Swift Distribution, 59 Cal 4th 277 (2014)).Class action
May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?
Class actions are permitted in California. Class litigation is permitted where the following are applicable:
- commonality − there must be one or more legal or factual claims common to the entire class (in some cases, it must be shown that the common issues will predominate over individual issues, such as the amount of damages due to a particular class member);
- adequacy − the representative parties must adequately protect the interests of the class;
- numerosity − the class must be so large as to make individual suits impractical (in other words, that the class action is a superior vehicle for resolution than numerous individual suits);
- typicality − the claims or defences must be typical of the plaintiffs or defendants. See Vasquez v Superior Court (4 Cal 3d 800 (1971)); andascertainability − there is some case authority suggesting that a class should not be certified unless its members are ‘ascertainable’. See Xavier v Phillip Morris USA, Inc, 787 F Supp 2nd 1075, 1089 (ND Cal 2011).
In addition to the state court rules, there is a federal statute, the Class Action Fairness Act of 2005 (CAFA), which is found at United States Code (USC) sections 1332(d), 1453 and 1711–1715. This statute expands federal subject matter jurisdiction over certain large class action lawsuits. As a general matter, this statute allows removal to federal court of certain class actions that are originally filed in state court. The principal purpose of the statute is to curtail ‘forum-shopping’ by plaintiffs in friendly state courts by expanding federal subject-matter jurisdiction.
In a recent case, CAFA’s ‘mass action provision’ was applied where numerous individual actions were sought to be coordinated under applicable state court procedures. In the case, the Ninth Circuit held that the action was properly subject to removal to federal court (Corber v Xanodyne Pharmaceuticals, 771 F.3d 1218 (9th Cir 2014)).Appeal
On what grounds and in what circumstances can the parties appeal? Is there a right of further appeal?
Under state procedural rules, there is an automatic right to appeal an appealable order or judgment. Where the underlying order is not directly appealable, such as a discovery order or an order denying a motion for summary judgment, a party may seek discretionary appellate review by way of a petition for writ of mandate. Because such petitions are rarely granted, the main avenue for obtaining appellate review is by way of a direct appeal, which is usually prosecuted at the conclusion of a civil action.
Even though parties to a civil case may have an automatic right to seek appellate review, the scope of appellate review is often quite narrow. Thus, an appellate court will not ordinarily engage in an independent weighing of the facts, evaluation of the evidence or gauging of the credibility of the witnesses. Thus, appellate review from a judgment following a jury verdict will often be limited to alleged errors of law committed by the trial court, such as errors in the jury instructions. By contrast, where the issue is one of pure law, such as an appeal following the granting of summary judgment, the standard of review will be that of de novo review – that is, the Court of Appeal will review the matter in the first instance and will not be bound by the determinations of the lower court.Foreign judgments
What procedures exist for recognition and enforcement of foreign judgments?
As to the enforcement in the US of money judgments that have been issued by foreign courts, California has adopted the Uniform Foreign Money Judgment Recognition Act of 1962. See CCP section 1713 et seq. That statute allows a party who has been awarded a final money judgment by a foreign court to apply for recognition of that judgment in the United States. Once recognition has been obtained, the judgment may be enforced in the same manner as a judgment issued by a US court. According to its terms, this statute applies to any foreign money judgment that is final, conclusive and enforceable where rendered even though an appeal may be pending or the judgment is subject to appeal. However, there are several enumerated grounds for non-enforcement of a foreign money judgment.Foreign proceedings
Are there any procedures for obtaining oral or documentary evidence for use in civil proceedings in other jurisdictions?
The controlling statute here is a federal statute 28 USC section 1782. In brief, that statute provides that a US district court may entertain a request from a litigant involved in a pending foreign proceeding to compel a person residing within the district court’s jurisdiction to provide testimony or produce documents for use ‘in a proceeding in a foreign or international tribunal’. As the foregoing statute is federal in nature, the applicable case law in this area derives entirely from litigation in the federal courts. Put differently, California’s superior courts effectively have no role in the area of compelling the production of testimony or documentary evidence in aid of litigation pending outside the United States.
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29 April 2020