Petition
(Perpetuate Testimony or Preserve Evidence before Litigation) (CA)

Summary

This petition to perpetuate witness testimony or preserve evidence before an action is commenced can be used by a party that wishes to conduct discovery for evidence that is at risk of becoming unavailable and would be relevant in an anticipated civil action in California superior court. This template contains practical guidance, drafting notes, and alternate clauses. Cal. Code Civ. Proc. § 2035.010 et seq. allows a party to preserve potential witness testimony or other evidence that could be lost or destroyed before a civil action begins. The statute permits a potential party to an unfiled civil action to petition a superior court for an order allowing that party to conduct discovery using the following methods: • Oral and written depositions • Inspections of documents, things, and places • Physical and mental examinations Cal. Code Civ. Proc. § 2035.020. You may not use the petition to ascertain the existence of a cause of action or defense or to identify those who might be made parties to an action not yet filed. Cal. Code Civ. Proc. § 2035.010(b). When drafting the petition, ensure that you include all of the requirements listed in Cal. Code Civ. Proc. § 2035.030. A supporting memorandum should accompany the petition. See Cal. Rules of Ct., Rule 3.1103(a), 3.1113(a); Cal. Code Civ. Proc. §§ 1003 (application for order is motion), 1064 (definitions of motions and orders in civil actions apply to similar acts in special proceedings). After filing the petition, serve notice on each person or organization named in the petition as an expected adverse party, together with a copy of the petition and any accompanying papers. The notice must state that the petitioner will apply to the court, at a time and place named in the notice, for the order described in the petition. Cal. Code Civ. Proc. § 2035.040(a), (b). For a full listing of key content covering motion practice in California state court litigation, see Motion Practice Resource Kit (CA). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For a detailed discussion on drafting, filing, and opposing a pre-litigation petition to perpetuate testimony or preserve evidence, see Perpetuating Testimony and Preserving Evidence before Litigation (CA). For discussion of evidence preservation generally, see Evidence Preservation (CA). For a discussion on discovery planning and strategy, see Discovery Planning and Strategy (CA). For detailed discussions on depositions, document production, and physical and mental examinations, see Depositions: Preparing for and Taking a Deposition (CA), Document Requests: Drafting and Serving RFPs (CA), Requests for Entry on Land or Inspection of Tangible Evidence (CA), and Mental and Physical Examinations (CA).