Discovery matters may be referred to an appointed referee when the court in any pending action determines that it is necessary for the referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. Discovery Referees are most commonly used in legally and/or factually complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time consuming and contentious. To improve efficiency, the trial court has the jurisdiction to appoint a referee if the judge feels that it is warranted by the situation. The process may be “voluntary” or “involuntary” and is governed by the Code of Civil Procedure (“CCP”). In California, the appointment process is governed by CCP §638 (voluntary) and §639 (involuntary).
A reference is voluntary when the parties and their counsel agree that the appointment of a referee is necessary. This will often include an agreement on who will serve as the referee. The referee is typically a retired judge, but an attorney can serve as a referee as well due to the nature of the appointment and the knowledge necessary to fulfill those duties.
A reference is involuntary when the judge independently determines that a referee is needed based on the circumstances in the case. The parties may still have the option of selecting their referee, but the judge will appoint one if the parties cannot agree on someone who is mutually acceptable.