There's nothing doctrinally wrong with this opinion. It's solid.
But you could still come out the other way. And maybe should.
Plaintiff hasn't worked in years after he was hit by a car on Stanford's campus. He's suing for a ton of money. From Stanford University and some other folks.
Defendant has had an orthopedic surgeon take a look at plaintiff. That doctor says the plaintiff's injuries have healed and that there's nothing medically-related that stops the guy from working.
But plaintiff has hired a vocational rehabilitation expert who gave plaintiff a bunch of tests and is set to opine that he can't obtain (much) gainful employment at this point. Not surprisingly, defendant wants to rebut this testimony.
So defendant sends out a discovery demand that plaintiff submit to testing by its own vocational rehabilitation expert, who will take no more than two hours with plaintiff and conduct an "interview and administration of written
examination, including interest testing and aptitude testing to examine plaintiff with
respect to his employment history, prospects and interests."
Plaintiff objects, and there's a motion to compel. Plaintiff says that there's no permissible discovery device that allows this sort of thing. It's not a physical exam, it's not an interrogatory, it's not a document request, etc.
The trial court grants the motion. It says that this discovery makes sense, and it's part of the court's inherent discovery powers. It's relevant; indeed, critical. So it's ordered.
The Court of Appeal reverses.
Justice Bamattre-Manoukian says, sorry, the discovery devices listed in the CCP are exclusive. If it's not in one of those categories, you can't do it. If you want to change things, talk to the Legislature.
Good luck with that, by the way.
Okay. I get it. Again, you can definitely come out that way.
But you can definitely come out the other way as well. Indeed, as Justice Bamattre-Manoukian's opinion itself notes, the New York state courts have done precisely that. That state's very similar to California, and limits discovery to particular devices. But that didn't stop the New York courts, which (like the trial court) thought it still made sense to allow this sort of discovery, and which thus held that it was within the court's inherent power to allow it.
Justice Bamattre-Manoukian says that these New York cases might be persuasive if there was nothing in California on point, but thinks there is. Though that's not really true. Yes, there's some arguably analogous California cases. But you could definitely allow this discovery, in my view, if you wanted to.
Judging -- with all due respect to Chief Justice Roberts -- isn't just about calling balls and strikes. In particular cases, yes, there's a set rule.
But not here. This is one of those grey areas. Where you could do what you want. If you wanted to do it.
I'm admittedly torn as to what I would do. I know that if I was in the Legislature, I'd vote to allow this sort of discovery. And, perhaps because of that, I'm hopeful that some state representative (or the Judicial Council) will use this opinion to change the law.
But I also recognize that the Legislature is imperfect. Way. And that that's precisely why we have the common law.
So I might do something different as well. Something the court could.
If it wanted to.
