California Discovery Referees: CCP §638 vs. §639

When discovery in a California case grows complicated enough to swamp a busy trial calendar, counsel often turn to a referee. But there is no single referee statute. California gives litigants two distinct paths, and choosing the wrong one — or not choosing deliberately — can determine whether a ruling binds, who pays for it, and how much of it the court will revisit.

California's discovery-referee tools

A California discovery referee is a private neutral the court appoints to manage and resolve discovery disputes that would otherwise consume scarce judicial bandwidth. Under sustained docket and budget pressure, that resource matters: as JAMS neutrals have observed, well-used references can preserve access to justice by keeping complex matters moving when a single overburdened judge cannot give every meet-and-confer the attention it needs. California supplies two statutory mechanisms — Code of Civil Procedure section 638 and section 639 — and they differ in consent, finality, scope, and cost.

CCP §638 — reference by agreement

Section 638 is the consent path. It requires the parties' stipulation or agreement; the court cannot impose a section 638 reference over an objection. Within that consensual frame, section 638 offers two forms. A general reference empowers the referee to try and decide the issues referred, and the referee's determination stands as the decision of the court — meaning it is binding and subject to appeal as if the judge had ruled. A special reference is narrower: the referee hears the assigned questions and reports findings for the court's action, leaving the ultimate decision to the bench. For parties who want a private decision-maker with real authority and finality, the general reference under section 638 is the tool.

CCP §639 — reference on the court's motion

Section 639 is the compelled path. It does not require all parties' consent. The court may order a reference on a party's motion or on its own initiative, but only for the enumerated purposes the statute lists — including, most commonly, hearing and determining discovery motions and disputes and reporting findings and a recommendation. The key consequence: a section 639 referee's report is a recommendation that the court independently reviews, not a final decision. The court retains the call. Section 639 also imposes guardrails on cost. Absent the parties' agreement, the court must make findings on ability to pay and allocate the referee's fees before imposing reference costs on the parties — a protection meant to keep a compelled reference from pricing a litigant out of the case.

§638 vs. §639 at a glance

The two statutes line up cleanly along four axes:

• Consent: §638 requires party agreement; §639 can be ordered without it.
• Effect: a §638 general reference is binding (and appealable); a §639 report is advisory, subject to the court's independent review.
• Scope: §638 can reach any issues the parties agree to refer; §639 is limited to enumerated grounds, with discovery the usual one.
• Cost: §639 carries express ability-to-pay and allocation findings before fees are imposed absent agreement; §638 cost-sharing flows from the parties' stipulation.

Procedure and selection

However the reference arises, the California Rules of Court govern the mechanics. Rules 3.900 through 3.932 address appointment, the referee's disclosure obligations, party objections, and compensation. Parties may object to a proposed referee based on prior relationships, bias, or qualifications, and those objections are worth taking seriously at the front end rather than litigating after a recommendation lands. A referee's flexibility — informal scheduling, prompt telephonic conferences, the ability to move at the pace of the dispute — is one of the chief advantages of a reference. It is not, however, a license for improper ex parte contact. The better practice is to formalize permitted ex parte procedures in the appointing order so that efficiency never becomes a fairness problem.

How this compares to federal practice

The federal analogue is Federal Rule of Civil Procedure 53, which likewise lets a court appoint a master either with the parties' consent or on the court's own initiative; the federal scheme simply folds both routes into one rule rather than splitting them across two statutes as California does.

Choosing the right path

The selection is rarely close once the posture is clear. If the parties will agree and want a binding result with real finality, section 638's general reference fits. If consent is unavailable but the discovery is bogging down the docket, section 639 lets the court act anyway, with the safeguard that the bench keeps the final word. Match the mechanism to three things: the consent posture, the need for finality, and the nature of the dispute. Because the statutes are periodically amended, counsel should confirm the current pinpoint subsections and any local rules before relying on a particular label in a stipulation or proposed order.

This article is general information only and is not legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS. Nothing here is a solicitation.