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2015 0512

4 Questions to Ask Before Moving for a
Discovery Protective Order


Julie Brook
| CEB California, civil discovery is
“self-executing,” i.e., a party demanding discovery doesn’t need prior court approval, and
the responding party may object instead of providing the requested information. An
objection often ends the matter, but sometimes it doesn’t, and the party resisting
discovery has to consider moving for a protective order.
When an objection isn’t enough to satisfy opposing counsel and moving for a protective
order is on the table, here are 4 questions to ask yourself:
1. Is there a risk in not moving? In some situations, it may be too risky to rely
solely on an objection, making it advisable to seek a protective order. For
example, if a party served with notice of deposition will be unavailable for the
examination and it’s uncertain whether the reasons for the unavailability will
establish a legally sufficient and valid excuse, seek a protective order before the
deposition. If you don’t and a party fails to appear for a deposition, the examiner
may not only move to compel the deponent’s appearance but also may seek
2. Is it too expensive? Compare the expense of making the motion for a protective
order to the significance of the information sought. Is the expense really
warranted to protect that particular information?
3. Do I need the information sought? Consider whether the same information will
be necessary to prove your own case. In Steiny & Co. v California Elec. Supply
Co. (2000) 79 CA4th 285, 292, the court held that, when plaintiff asserts a valid
trade secret privilege and prevents disclosure of crucial evidence, plaintiff may be
prevented from presenting its damage evidence at trial.
4. Is the risk of sanctions low? Be confident of the merits of your motion before
filing because the court must impose a monetary sanction against any party,
person, or attorney who unsuccessfully makes or opposes a motion for a
protective order unless there was substantial justification for the unsuccessful

g. Before making the move for a protective order. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. CCP §2030.] . turn to CEB’s California Civil Discovery Practice §15. e. it may be less expensive and less burdensome to disclose the information even though a motion for a protective order might ultimately have been successful. See. and chapter 15 for more on discovery motion practice and sanctions. [View source. 2015. Here’s the bottom line: When the requested discovery isn’t privileged or won’t harm your client’s interests.090(d).action or other circumstances make the sanction unjust. © The Regents of the University of California..84 for a procedural checklist. available On Demand. Motions for protective orders is one of the many topics covered in CEB’s program Back to the Basics of Preparing and Opposing Pre-Trial Motions—A Course on Procedure.