(a) If the court determines that all or part of the discovery requested under this chapter may prevent a failure or delay of justice in the event of further proceedings in the action in that court, it shall make an order authorizing that discovery.
§ 2036.040.040
Title 4. Civil Discovery Act · Chapter 20. Perpetuation of Testimony or Preservation of Information Pending Appeal · Enacted 2004 · no amendments on record · Last verified July 29, 2026
In one sentenceSection 2036.040 directs the court to authorize discovery pending appeal when it may prevent a failure or delay of justice in further proceedings, requires the order to identify the specific witnesses, materials, and examinations covered, and directs that the discovery proceed under the ordinary rules for a pending action.
Full Text of § 2036.040
(b) The order shall identify any witness whose deposition may be taken, and any documents, things, or places that may be inspected, and any person whose physical or mental condition may be examined.
(c) Any authorized depositions, inspections, and physical and mental examinations shall then be conducted in accordance with the provisions of this title relating to these methods of discovery in a pending action.
Plain-English Summary
This section mirrors Section 2035.050 closely, adapted for the post-judgment setting. If the court determines that authorizing all or part of the requested discovery may prevent a failure or delay of justice in the event of further proceedings in that court, it must grant the motion. The standard is the same failure-or-delay-of-justice test used before a case is even filed, just applied to the risk that evidence will be lost before a retrial or other further proceeding gets underway.
As with pre-filing discovery, the resulting order cannot leave the scope of authorized discovery vague. It has to identify the specific witness or witnesses whose depositions may be taken, describe the documents, things, or places that may be inspected, and name any person whose physical or mental condition may be examined. And once the order issues, the depositions, inspections, and examinations it authorizes proceed under the same rules that govern those methods in any pending action, rather than under some separate post-judgment procedure. A party who wins this motion is, procedurally, back in the same discovery framework it would have used before judgment, just narrowed to whatever the order specifically authorizes.
Frequently Asked Questions
What standard governs whether the court authorizes discovery pending appeal?
Whether authorizing all or part of the requested discovery may prevent a failure or delay of justice in the event of further proceedings in that court.
What must the order authorizing discovery pending appeal specify?
The witnesses whose depositions may be taken, the documents, things, or places that may be inspected, and any person whose physical or mental condition may be examined.
Do special procedures govern discovery once it is authorized pending appeal?
No. The authorized depositions, inspections, and examinations proceed under the same provisions that govern those methods in a pending action.
Is this section similar to the pre-filing discovery order provision?
Yes. It closely tracks Section 2035.050, applying the same failure-or-delay-of-justice standard and the same order-specificity requirement to the post-judgment setting.
Amendment History
(Added by Stats.2004, c. 182 (A.B.3081), § 23, operative July 1, 2005.)
Source & verification. Section text is reproduced verbatim from
the West's Annotated California Codes / Thomson Reuters. Enacted by the California Legislature.
Last verified July 29, 2026.
· Official source
Also known as: ccp 2036.040 order authorizing discovery pending appealprevent failure or delay of justice appealscope of court order discovery after judgment