Immediate Discovery Before The Responsive Pleadings Are Filed

I am often asked whether there is a benefit to beginning discovery as soon as possible. Well, as usual, the answer is: it depends. The right to discovery generally does not depend on the status of the pleadings. (i.e., the case need not be “at issue.”) But if defendant has raised jurisdictional challenges, the court may grant a protective order restricting discovery to the jurisdictional issues. Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 CA3d 1429, 1436.

However, there are occasions when a defendant might first file a demurrer in response to the Complaint. Deficiencies in the pleadings generally do not affect either party’s right to conduct discovery. Thus, for example, discovery may continue after a demurrer has been sustained with leave to amend, although no amended complaint has yet been filed (i.e., no valid complaint need be on file). Budget Finance Plan v. Sup.Ct. (McDowell) (1973) 34 CA3d 794, 797.
Plaintiff may need discovery in such a case in order to draft the amendment. (And, defendant may wish to pin down the nature of plaintiff’s claim without waiting until the amended complaint is filed.) See Union Mutual Life Ins. Co. v. Sup.Ct. (Scott)(1978) 80 CA3d 1, 12.