How and When to Appeal an Adverse Discovery Ruling

Owen M. Praskievicz, Esq.
Schwartz Semerdjian Cauley & Moot, LLP
Published:  05.01.2015

Discovery rulings can sometimes make or break a case.  Expert witness excluded from trial?  Physician-patient privilege deemed waived?  Crippling sanctions?  Any one of these decisions can effectively preclude a favorable outcome for your client and prompt an early settlement.  After all, going to trial despite an adverse discovery ruling is not a winning strategy, and appealing such a verdict is no guarantee.

So what options does an attorney have in the face of an adverse discovery order?  This article discusses California’s interlocutory appeal process and how it can be used to challenge such adverse rulings.  To be clear, the Courts of Appeal in California rarely grant interlocutory appeals, but understanding the process and understanding what kind of appeals the courts have granted in the past can at least offer some hope.

What is a Writ of Mandate?

As a brief reminder, a writ of mandate is an order by the Court of Appeal s to a lower tribunal to do something or to stop doing something.  When a party in the midst of litigation receives an adverse ruling that will substantially impact the outcome of a case, the party can petition the Court of Appeal to intervene.  It is important to remember that a writ is an “extraordinary” form of relief, and are rarely granted.

Specifically, a writ of mandate may be issued by the California Court of Appeals pursuant to Code of Civil Procedure section 1085, which allows an aggrieved party to petition the Court of Appeal when the a petitioner has no other “plain, speedy, and adequate remedy, in the ordinary course of law.”  (Code Civ. Proc. §1086.)  A writ of mandate is appropriate when a petitioner will be harmed by a trial court’s determination that “imposes unusually harsh and unfair results for which ordinary appellate review is inadequate.”  (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100–01.)   

There are essentially two types of writs that can be issued on an interlocutory appeal, depending on the type of order being appealed.   Statutory writs are based off statutes where the California Legislature has specifically authorized a review by writ.  These statutory writs often prescribe a short time-frame for appealing an order, usually from ten-twenty days, so be sure to proceed diligently on filing your petition.  

Common law writs are all writs other than those prescribed by statute.  There is no time frame for such petitions, but this does not mean a party should delay in petitioning an order—most acknowledge that a common law writ petition should be filed within sixty days of the order.  Most discovery orders are appealable by writ of mandate as common law writs, meaning there are no statutes prescribing a timeline for filing.  

There are also a host of detailed requirements for what the petition must include, including the petition itself, points and authorities, exhibits, a certificate of interested entities or persons, a certificate of word count, and a filing fee.  Be sure to also comply with the rules regarding the color of the petition cover (red), the limit for binding exhibits (no more than 300 pages per volume), and the number of copies to be provided to the Court of Appeal and the trial court.

What Discovery Orders Can and Should Be Appealed by Writ of Mandate?

Although most discovery orders can be petitioned by writ of mandate, attorneys will want to consider whether they have much hope in succeeding on such a petition.  Keep in mind that a petition will only issues if an order “imposes unusually harsh and unfair results for which ordinary appellate review is inadequate.”  In other words, unless the discovery order is truly going to prejudice your client and no other remedy is available, then a petition may not be successful.  

On the other hand, “[w]rit review of a discovery ruling is proper when ‘the issues presented are of first impression and of general importance to the trial courts and to the profession.’”  (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal. App. 4th 347, 355 citing (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061).)  To this end, the following discovery orders provide examples as to what can be overturned by writ of mandate:

An Ordered Release of Privileged Information 

By its very nature, privileged information is highly sensitive and thus its disclosure can permanently harm a party before a trial.  As such, courts of appeal treat orders demanding the disclosure of privileged information as prime candidates for writs of mandate.

In Hale v. Superior Court (1994) 28 Cal. App. 4th 1421, the defendants sought to designate the treating physicians of the deceased plaintiff as experts.  When the plaintiff’s estate sought an order prohibiting the defendants from contacting the physicians, the trial court granted the order prohibiting the defendants from contacting the doctors but also prohibiting the plaintiff’s estate from contacting the doctors except through formal discovery.  Naturally, the trial court’s order could substantially dictate the outcome of the case for both parties.

The estate petitioned for a writ of mandate arguing that it alone held the doctor-patient privilege and could not be precluded from speaking with the doctors.  The Court of Appeal for the Fourth District agreed and granted the petition, adding that the deceased plaintiff had not waived the privilege.  The court noted that the petition was “unusually urgent requiring acceleration and thus a peremptory writ was proper.”  

An Ordered Protection of Absolute Attorney Work Product

In the same vein as an order demanding the release of privileged information, an order preventing the disclosure of privileged information can be equally devastating to party’s case if they are precluded from reviewing and using potentially culpatory evidence.  

In Metro-Goldwyn-Mayer, Inc. v. Superior Court (1994) 25 Cal. App. 4th 242, a former client (MGM) demanded the release of all “client papers and property” from its prior attorney, including his “absolute work product.”  The former attorney had represented MGM and its majority shareholders in a merger transaction, and in the current case MGM was suing the shareholders for alleged fraud in the merger (in a related-case, the former attorney was representing the majority shareholders).  A discovery referee reviewed the documents requested in camera and upheld the absolute work product privilege.  The trial court denied MGM’s petition challenging the referee’s order.

MGM then petitioned for a writ of mandate, and the Court of Appeal for the Second District held that the former counsel had waived his privilege by allowing his other client in the merger—the majority shareholders—to utilize his work product in the related case but not allowing MGM to use the documents.  Because of this, the court held that MGM was prejudiced in its action by being denied critical discovery that the majority shareholders had access to.  Thus the writ of mandate was issued demanding the trial court to order the release of the work product.

Order Allowing the Invasion of Privacy Interests 

In litigation concerning anti-abortion protestors' right to engage in protests outside of a Planned Parenthood facility, the trial court entered a discovery order requiring the disclosure of the names, residential addresses, and telephone numbers of Planned Parenthood's non-party staff and volunteers. Planned Parenthood petitioned for writ of mandate, and the Court of Appeal for the First District held that the state constitutional right of privacy outweighed the state's interest in requiring disclosure “to protect the constitutional rights of third parties and because no adequate remedy other than writ review is available.”  (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal. App. 4th 347, 355.)

Sanctions for Non-Compliance with Discovery Order

Although not necessarily a discovery order that will dictate the outcome of a case, an order of heavy sanctions against an attorney and his or her client can be devastating.  Thus it is good to know that if a trial court is inclined to enforce a sanctions order, a court of appeal may issue a writ of mandate overturning the sanctions.

For example, in In re Marriage of Fuller (1985) 163 Cal. App. 3d 1070, a husband had to bring two motions to compel his wife for the production of certain documents.  When the wife did not comply with the second motion, the court ordered her and her attorney to appear at an order to show cause hearing.  When neither appeared, the trial court issued a sanctions order of $2,500 jointly and severally against the wife and her counsel.   The attorney, after being relieved as counsel, then brought a motion for relief on grounds of excusable neglect, mistake and inadvertence, which the trial court denied.   

The attorney then appealed and, although the appellate court took issue with his timing and conduct, held that the attorney was never put on notice that the sanctions order could have been imposed on him.   Thus the court issued a writ of mandate ordering the sanctions be lifted.     


Make no mistake about it—petitions for writ of mandate on adverse discovery orders are rarely granted.  Indeed, such writs are extraordinary forms of relief.  But if a discovery order goes against you and that order was wrongly decided, take solace that a writ of mandate may issue in the right circumstances.