(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  See C.C.P §2031.240(b)

This document is more commonly known as the “privilege log”.  Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed.  See California Civil Discovery Practice (CEB 4th Ed. 2011)  §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 (pdf) and §33.201 for a sample of a privilege log.

Except in some limited situations, California court’s do not have the right to do an in camera inspection of privileged documents to determine whether or not the document is actually privileged. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192.1 citing Southern California Gas Co. v. Public Utilities Communication (1990) 50 C3d 31, 45 (pdf). Therefore, it is important that the privilege log be sufficiently specific enough to allow the court to determine whether the document is or is not (in) fact privileged.”  Wellpoint Health Networks, Inc. v. Sup Ct. (1997) 59 CA4th 110, 130 (pdf). If the log is not sufficiently specific, the trial court may order the objecting party to prepare a new log containing more information about the nature of the document in question.  Kaiser Foundation Hospital v. Superior Court (1998) 66 CA4th 1217, 1228 (pdf).  The court also may conduct a preliminary fact hearing on whether the privilege exists.  See Ev. C. §402. 

So, when you are asserting objections to document requests remember:

You Can’t Do General Objections.  Many attorneys use a preamble before their responses called “General Objections”.  This is improper.  You don’t get to list every conceivable objection and have blanket coverage. C.C.P. §2031.210–240 makes it clear how you are to respond and “General Objections” is not one of them.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Do “Boiler-plate” aka Garbage Objections, as they are an indication of bad faith and you can be sanctioned.  See Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 (pdf).

You Can’t Object to a Document that does not exist.  When counsel for a party objects to production of documents under C.C.P. §2031.240(b), counsel implies that the documents in question exist and have been reviewed.  Objection made to requests for production of document that do not exist or not in the attorney or party’s possession violate an attorney’s ethical duty under Bus & PC §6068(d) to act truthfully and, therefore, constitutes bad faith.  See Bihun v. AT&T Info. Sys (1993) 13 CA4th 976, 991 (pdf) (reversed on other grounds) and CEB §8:10.  Thus, it is important that you review all responsive documents before you respond.     

You Must Provide a Specific factual description of the documents or you run the risk that your objections will be deemed waived.  The purpose of the privilege log in discovery proceedings is to provide specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production, and is intended to permit a judicial evaluation of the claim of privilege. Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181 (pdf). 

The burden is on the party claiming a privilege to establish whatever preliminary facts are essential to the claim if a motion to compel is filed.  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) ¶8:192 see Ev. C. §§402, 405.

To determine whether or not a responding party has made a reasonable inquiry, you must determine where the responding party searched (what efforts were made), who did they talk to (did they make an inquiry to their legal department, human resources, customer relations, the employees in the chain of command, etc.), and what were the questions they asked.

More often then not I see responses to document requests being done (1) by the one with the highest bar number on the pleading (a.k.a. the newbie associate) and/or (2) by the attorney dictating at their desk instead of taking the time to sit down with the client, determining whom they should be talking to and knowing what questions to ask.

It is my opinion that the person who should be talking to the client and collecting the documents is the experienced senior attorney who has a relationship with the client and knows what questions to ask. If the senior attorney still chooses to delegate, then they need to be “hands on” and take responsibility whether or not a “diligent search” and “reasonable inquiry” were in fact made prior to the response and production being served.

If a motion to compel further responses comes before me based on the response:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

I am going to be asking the responding party for a declaration from the client and/or attorney as to what exactly was done, who was contacted and what questions were asked. What I have found, more times then not, is that the parties have not done a “diligent search” and/or made a “reasonable inquiry.”

It is important that attorneys recognize that the obligations in responding to inspection demands and collecting documents cannot be ignored. The courts are more than ever issuing sever monetary, issue and evidence sanctions for failure to comply. The most recent being Kayne v. Superior Court (2011) 198 CA4th 1470 (pdf).  Therefore, in responding to an inspection demand and collecting documents you need to do the following:

FIRST, you need to figure out what questions you should be asking your client and what documents you need from your client. To determine that you need to know your case and that includes:

• Each party’s theories
• Potential causes of action that were not pleaded but might be included in an amended complaint
• Affirmative defenses
• Review of jury instructions

SECOND, you need to identify the corporate structure to determine whom you should be talking to and whether or not they did an investigation. These people include:

• In-house counsel
• Risk manager
• Human resources
• Chains of command regarding reporting obligations.

THIRD, you need to identify key witnesses with information relevant to the subject matter of the dispute. These witnesses include:

• People whose names appear in the narrative portion of a complaint.
• People whose names appear on documents.
• People named in interrogatory responses.
• People identified in depositions.
• People identified by in-house counsel.
• People identified by internal or insurance company investigations.

FOURTH, you are going to need to determine where the client has their documents as well as third parties whom the client has custody and control over (i.e., insurance brokers, banks, former employees etc.) keeps their documents and/or electronically stored information. This inquiry starts with determining whether the documents are in paper files, they are electronically stored information (ESI) or a combination thereof.

Paper Files

• Where are the primary file cabinets?
• Would any employee or third party have copies?
• Are any of the documents stored off site?
• Have any of the documents been destroyed?

Electronically Stored Information (ESI)

• Where are the primary electronically stored files kept (i.e., stand-alone computers, servers, the cloud)?
• Is the information on any portable storage media such as thumb-drives CD-ROM, portable backup drives?
• Is the information on anyone’s personal laptops, home computers, tablets, smart phones?
• Has any of the ESI been erased, overwritten or destroyed?

FINALLY, you are going to need to determine the client’s data retention and litigation hold policies. Also, do they have a criterion in place as to what documents get systematically destroyed due to age and other reasons.

Though the above is not an all-inclusive list, it is a good starting point. I would also recommend that you review California E-Discovery and Evidence (Matthew Bender Practice Guide (2010)) Section 9 titled Gathering and Producing Electronically Stored Information.

WORDS OF WISDOM:

In Qualcomm v. Broadcam (United States District Court, Southern District of California, Case # 05cv1958-B) United States Magistrate Judge Barbara L. Major stated in Footnote 10 of her January 7, 2008 ruling that

If[the associate attorney] was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production then he should have obtained the assistance of the supervising or senior attorneys. If [they] were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence.

 

Have you ever received a response to requests for production of documents that says:

After a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within RESPONDING PARTY’s possession, custody, or control

Yet you question the veracity of the verified response, because they have got to have documents. So what can you do? This is a two-prong inquiry. The first being

What is a "Diligent Search"?

The requirement of a “diligent search” in responses to requests for inspection and production of documents is one of the most fought over provisions of the Discovery Act. Part of the problem is that the Code of Civil Procedure isn’t really helpful in its definition as the only time the language comes up is in C.C.P. §2031.230 (pdf) which states in part:

A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand . . .

Also the typical treatises, Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2011) and California Civil Discovery Practice (CEB 4th Ed. 2011) don’t go into detail as to what the obligation really is. So, here is what I expect a party to do in responding to a request for production of documents.

Good Faith Obligation

A party must make a good faith effort in obtaining documents responsive to the request. Regency Health Services, Inc. v. Superior Court(1998) 64 CA4th 1496 (pdf). To me, this means that the obligation is well beyond an attorney dictating a response off the top of his head and looking through his file. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 CA4th 390 (pdf)  The Code recognizes that the response and production are labor intensive. That is why you have 30 days.

“Possession, Custody or Control”

The case law is very clear when it comes to responses to interrogatories, requests for admissions and document requests – “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf).

It goes without saying that a party must produce documents in his or her possession and custody. However, even if a party that does not possess an item covered by an inspection demand the party may nonetheless control it. California and Federal courts have found that a party has control over the following individuals and entities for purposes of producing documents:

A Party’s Lawyer Smith v. Superior Court (1961) 189 CA2d 6 (pdf)

Family Members Jones v. Superior Court(1981) 119 CA 3d 534, 552 (pdf)

Experts Sigerseth v. Superior Court(1972) 23 CA 3d 427,433 (pdf)

Insurers Clark v. Superior Court(1960) 177 Cal. App 2d 577 (pdf)

Agents or Employees Gordon v. Superior Court(1984) 161 CA 3d 151 (pdf)

Officers, Shareholders and Managers General Environmental Science Corp v. Horsfall (1991, ND Ohio) 136 FRD 130, 133-134

Affiliated Corporations Standard Ins., Co. v. Pittsburgh Electric Insulation, Inc. (1961, WD Pa) 29 FRD 185; Gerling Intern. Insur. Co. v. C.I.R. (1988, CA3) 839 F2d 121, 140,141.

Tax Records Reeves v. Pennsylvania Railroad Co. (1948, D Del) 80 F Supp 107, 109.

I also expect the diligent search to include any third party institution where you can sign an authorization and obtain the records such as health care providers, financial institutions etc.

The statute and the case law make it very clear that a party and the attorney must be proactive in obtaining the information and documents in response to a request. Take the time and do the response and production correctly, because this is the discovery device where issue, evidence and terminating sanctions are mostly granted.

For more detailed discussion on what defines “control” by a party over non-parties see Hogan and Weber California Civil Discovery Second Edition at §6.5.

NEXT: INSPECTION DEMANDS–What is a Reasonable Inquiry?

Plaintiffs own a 3,500 square foot home in Danville, CA. Plaintiffs went to a Home Improvement Store one afternoon where they saw a “sales pitch” regarding new roofs. After listening to the “sales pitch,” the plaintiffs signed a contract for a new roof. After the first winter, the plaintiffs discovered many leaks in the roof. The plaintiffs tarped the roof, closed the windows and moved out. Two years later, plaintiffs are claiming that the house is uninhabitable and want the house torn down and rebuilt. They are seeking damages in the amount of $2 Million.

INITIAL DISCOVERY

My first step is to spot all the issues. In the above scenario plaintiffs obviously have causes of action for breach of contract and property damage. Plaintiffs may also have a claim for personal injury and wage loss due to exposure of mold (“uninhabitable” part of the scenario).  With this in mind I would serve the following initial discovery:

A.     Judicial Council Form Interrogatories with the following boxes checked:

• 1.0 Identity of Persons Answering These Interrogatories
• 2.0 General Background Information–Individual
• 4.0 Insurance
• 6.0 Physical, Mental, or Emotional Injuries
• 7.0 Property Damage
• 8.0 Loss of Income or Earning Capacity
• 9.0 Other Damages
• 10.0 Medical History
• 11.0 Other Claims and Previous Claims
• 12.0 Investigation–General
• 14.0 Statutory or Regulatory Violations
• 50.0 Contract

B.      I would also serve Requests for Production of Documents that coincide with the checked boxes of the Form Interrogatories regarding:

• Insurance
• Physical, mental or emotional injuries
• Property Damage
• Loss of Income or Earning Capacity
• Other Damages
• Medical History
• Other Claims and Previous Claims
• Investigation
• Statutory or Regulatory Violations
• Contract

SECOND TIER DISCOVERY

A.     Once I have received the verified responses to the form interrogatories and requests for production of documents, I should know:

1. Who are plaintiffs’ treating physicians for the alleged medical injuries;
2. Who are plaintiffs’ past treating physicians;
3. Who are plaintiffs’ current employers where they incurred the alleged wage loss;
4. Who are plaintiffs’ past employers;
5. Who has provided a written estimate for the alleged property damage; and
6. Who has repaired the property damage.

So my next step would be to subpoena the records from each and every one of them.

B.     I would also decide whether or not I would want my investigator interview the witnesses named in plaintiffs’ response to Form Interrogatory 12.1 or have them deposed. Most likely I would have my investigator talk to the witnesses and decide later if I needed them deposed. However, if I chose to depose them, then I would schedule the depositions.

C.      At this point I would also start contacting and retaining experts–such as a roofing expert and possibly a mold expert.

D.     Lastly, I would schedule a site inspection. However, before I serve my notice for the site inspection, I would make sure that my experts will have all the information he needs by the time of the site inspection and will be available on the date I selected.

THIRD TIER DISCOVERY

A.    After I have received and reviewed the subpoenaed medical and employment records, I may determine that I need an independent medical examination for conditions that are “in controversy” See C.C.P. §2032.220 (pdf).  Remember: In scheduling the independent medical examinations, you only get one per plaintiff unless you file a motion. C.C.P. § 2032.220(a).

B.    If plaintiffs are claiming emotional injuries if any of the plaintiffs are claiming “great mental pain and suffering” resulting from physical injury, then I would seek a psychiatric examination either by stipulation or motion. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1554 et seq.

C.    I would also schedule the deposition of the plaintiffs to take place after you receive the independent medical examination report of the plaintiff, but before I do my Target Discovery. When to take the deposition of the plaintiffs is based primarily on preference, but this is when I like to take it as I will have plaintiffs’ response to form interrogatories, all plaintiffs’ documents, documents from third parties and the report from the independent medical examiner.

TARGET DISCOVERY

At this point I am refining my case for either a motion for summary judgment/summary adjudication or trial. My goal is to nail down the plaintiffs as to their claims and damages as well as what they think my client did wrong. This is when I use specific discovery requests and would serve:

A. Special Interrogatories as to specific areas. However, I will not use contention interrogatories as requests for admissions are more effective;

B. Requests for Admissions;

C. Form Interrogatory 17.1 titled "Responses to Request for Admissions"; and

D. Requests for Production of Documents requesting “all documents identified in your response to Form Interrogatory 17.1 (d).”

I try and stay under 35 requests for admissions and 35 special interrogatories. I could provide a Declaration of Necessity, but I want to limit plaintiffs’ ability to object on the grounds of burdensome.

Hint:    In a complex case, target discovery may take many months or years, however, doing the first three levels is the necessary foundation for your target discovery.

EXPERT WITNESSES

A.    Unless stipulated or court ordered otherwise, expert disclosure is 50 days before trial. See C.C.P. §2034.260 and Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:166 - 1685.6. At that time I must exchange:

1.     Expert List setting forth the name and address of each person whose expert opinion I expect to offer at trial.

2.     Expert Witness Declaration describing the  

• Qualifications of the expert
• General substance of expected testimony
• That the expert has agreed to testify and is sufficiently familiar with the pending action to provide a meaningful oral deposition concerning the specific testimony the expert is expected to give at trial
• The expert’s hourly and daily fees for providing deposition testimony and for consulting with the attorney.

B.    After receiving plaintiffs’ expert disclosure I would immediately contact opposing counsel and ask him for his experts’ availability, advise him/her of my experts’ availability and begin the scheduling of the experts’ depositions. The scheduling of experts depositions is not a time to play games. Pursuant to C.C.P. §2034.230 (pdf) (expert disclosure 50 days before trial), C.C.P. §2034.230 (pdf) (expert discovery closes 15 days before trial) and C.C.P. §2034.230 (pdf) (10 day deposition notice), I only have a 25-day window period in which to take all expert depositions and that includes Saturdays and Sundays. If I exclude the weekends, I have less than 15 days.

 TRIAL

After doing the above, I have built my pyramid and I am ready for trial.

Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.

There are so many things wrong with this request I do not know where to begin.

What the above request is really asking for “Any and all . . . documents . . . relating to the construction, repair, or maintenance of the real property involved in this lawsuit.” In other words everything including the kitchen sink. No pun intended. Even though the demand describes what could be inclusive of that demand. It still is not "specifically describing each individual item" or by "reasonably particularizing each category of item" as required by C.C.P. §2030.010 (pdf).

Though discovery requests are liberally interpreted, that does not mean that the court will enforce such “blanket” or “omnibus” inspection demands. In Flora Crane Service Inc. v. Superior Court (1965) 234 Cal 2d 767, 786-787 (pdf), the Supreme Court stated that the identification of the documents to be produced is inadequate

“when the books and documents sought to be produced are designated by or included within a so-called omnibus description. The unlimited characteristics of such a description may impair or destroy exactitude so that the custodian of the records is not reasonably apprised of what he must produce. In fact a Federal court interpreted these kinds of requests as “not merely a ‘fishing expedition, but, as one court described it, an effort to ‘drain the pond and collect the fish from the bottom,” Amcast Industrial Corp. v. Detrex Corp. (1991, ND Ind) 138 F.D. 115, 121 quoting In re IAB Peripheral EDP Devises Anti-Trust Litigation (1977, ND CAL0 77 F.D. 39, 41-42. SEE Hogan and Weber California Civil Discovery (2nd Ed.) §6.4

In Calcor Space Facility, Inc. v. Superior Court (1997) 53 CA4th 216 at 222 (pdf) the Fourth District Court of Appeal defined “reasonable particularity” to mean that degree of specification that they are “reasonably particularized from the standpoint of the party on whom the demand is made.”

SECOND     Lumping all the categories in one request

There is no rhyme or reason to lump “job files, building contracts, . . .”  into one document demand as there is no statutory limit on the number of times a party can make an inspection demand on another party or the number of requests within each demand. See C.C.P. §2031.010. This is different from the other written discovery methods (only 35 interrogatories or 35 requests for admissions without a declaration of need for additional discovery.) So why do it?

THIRD     “Relevant non-privileged and non-protected documents”

Inserting this language into the request only hurts you. C.C.P. §2031.240 (pdf) states:

(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

Having the language “relevant non-privileged and non-protected documents” implies that you don’t have to comply with this code section.

FOURTH     You are not going to get issue and evidence sanctions

In imposing issue and evidence sanctions, the court must tailor the sanction to fit the conduct. McArthur v. Bockman (1989) 208 Cal. App. 3d 1076, 1080-1081 (pdf)  The aggrieved party cannot receive more by way of a sanction then it would have received if it had received the discovery.  Rail Services of America v. State Comp. Insurance Fund (2003) 110 Cal App. 4th 323, 332 (pdf)  So, if you don’t draft your categories in a manner that they are “reasonably particularized from the standpoint of the party on whom the demand is made”, how is the judge who is not as familiar with the case going to be able to to tailor the sanction? 

HINTS:

Counsel should take care in identifying the materials to be produced. A description that is too broad may be the basis for granting a protective order. If the request appears to be boilerplate language (i.e., not crafted to the specific witness and materials to be produced), the court will be much more inclined to restrict the production request or quash it all together. California Civil Discovery Practice (CEB 4th Ed. 2011) §8:48

Although it is important to be inclusive, demands that try to do too much often draw objections. Consider avoiding demand for all documents that “relate” to a subject or demands that are so wordy that they must be carefully parsed. California Civil Discovery Practice (CEB 4th Ed. 2011) PRACTICE TIP at 8:48

Draft your requests from the standpoint of the responding party. Many clients are not sophisticated enough to understand what exact documents you are seeking. Don’t assume that the partner on the file is going to be doing the grunt work on the production as that is usually delegated to the newbie associate. Unfortunately, the newbie associate is  probably not going to know where to look for the documents, who to ask, and/or the organizational scheme of his clients business. Having "reasonably particularized" categories will allow the opposing side to collect and produce the documents you seek. 

Finally, having your requests “reasonably particularized” will help the court pull the trigger on issue and evidence sanctions as the judge need only incorporate the request into the “tailored” order.

Over the years friends and colleagues have called me up asking for a quick answer on a discovery question that they have. The phone call usually went like this “I want to get plaintiff’s phone records, how do I do that?” or “I forgot to disclose experts, am I too late?” or “They want to send my client to a psychiatrist. Can I object?” I know the answers to these questions which are “Yes,” “No” and “Yes.” However, to get the statutory authority, I rely on the charts I have prepared and published over the last 18 years. The California Civil Discovery--Charts for the Everyday Litigator " (pdf)  was recently updated and now available to you for download. 

Hope it helps!!

Attorneys easily spew out the objection “the information you are seeking is not relevant to the subject matter of the litigation” as easily as they say “Good morning.”  If you are the propounding party your reaction is probably to be to yell out “It is too relevant!” because it doesn’t even appear that the responding party actually thought it through before spewing out the objection.   But what exactly is relevancy?  It seems to be a nebulous term that invokes images of catching clouds with your hands or like Supreme Court Justice Potter Stewart’s definition of pornography “I know it when I see it”?

Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.             

However, this definition isn’t exactly helpful either.  Unfortunately, there is no bright line test to determine what is relevant.  Instead you must rely on numerous cases that bounce you from flipper to flipper like a pinball to get a sense as to what relevancy means for Discovery. 

The overriding philosophy of the Discovery Act is that discovery should be liberally construed in order to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf) at 391.  Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:71 citing Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 C3d 785,790 

“Relevant to the subject matter” is broader than relevancy to the issues which determines admissibility of evidence at trial. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:66 citing Bridgestone-Firestone Inc. v. Sup. Ct. (1992) 7 CA4th 1384 (pdf),1392  In fact, admissibility at trial is not the test.  See Davies v. Superior Court (1984) 36 C3d 291 (pdf),301.  You may discover heresay (Smith v. Superior Court (1961) 189 CA2d 6 (pdf),11 or inadmissible opinions and conclusions (Greyhound Corp. v. Superior Court, Supra at 391).   You may also discover irrelevant matters so long as their revelation may lead to the discovery of admissible evidence. Dodge, Warren & Peters Insurance Services, Inc. v. Riley (2003) 105 CA4th 1414 (pdf).  Remember that you are not limited to the pleadings as the pleadings can always be amended when you discover new facts or causes of action. Anti-Defamation League of B’nai B’rith v. Superior Court (1998) 67 CA4th 1072 (pdf).  The phrase “subject matter involved in the pending action has been defined to include not only the acts that constitute the cause of action, but also circumstances and physical facts which the action arises, including the property, contract, or other things in dispute.   See CEB California Civil Discovery Practice (2010) 4^th Ed 1:37 citing Darbee v. Superior Court (1962) 208 CA 2d 680 (pdf),688.  However, Weil and Brown said it best: “the scope of permissible discovery is one of reason, logic and common sense.”See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶ 8:67 

Hint: If you can articulate why you think this information might lead to the discovery of admissible evidence then you should be able to discover it. 

So now what do you do? The answer is another discovery device. In Carter v. Superior Court (1990) 218 CA3d 994 (pdf) the court held even though a party had missed the deadline for compelling inspection of documents under C.C.P. Section 2031 it did not bar him from requesting the same documents be brought to a deposition. Therefore, you can serve any of the following discovery devices and pretty much get the same result:

• Interrogatories–Use requests for admissions coupled with Form Interrogatory 17.1 and request for documents.
• Request for Production of Documents –Use deposition notices with a document requests, corporate deposition notices with a document request and/or third party subpoena for deposition with documents.
• Request for Admissions –use special interrogatories or deposition notices

One thing you can’t do is reserve the same interrogatories, requests for documents and/or requests for admissions and “reset the clock.”  Sexton at 1408 citing Professional Colleges, Magna Institute, Inc. v. Sup. Ct. (1989) 207 CA 3d 490.

Your other alternative is let the objections stand.  Then at trial serve a motion in limine excluding all evidence that was not produced in discovery. If a party does not cough up the info during discovery they can’t use it at trial.

These are a few suggestions on the dreaded draconian 45-Day Rule. Does anyone have any more?

Not only are most objections garbage, we tend to recycle our garbage objections from one case to the next. Sometimes, we pick up other attorneys’ garbage objections and contribute to more litter. This is done over and over again without even thinking what it is doing to the environment of the litigation.

Garbage objections fuel the ire of opposing counsel. The “meet and confer” letter that is soon to follow is usually full of hostility and threats. Any amicable relationship you had hoped for with opposing counsel is on the cusp of being destroyed. More important, you are now costing your client more money in attorneys’ fees and possibly in settlement.  So before you throw out the trash, look at these common objections and why they will be overruled:

“Ambiguous”      Valid objection only if the question is totally unintelligible. A party has a duty to answer if “the nature of the information sought is apparent.” Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf), 783. Rather than sustaining the objection, the judge may ask the propounding to rephrase the question or request. See Cembrook v. Superior Court (1961) 56 C2d 423 (pdf), 430   Hint: instead of objecting state what you think the interrogatory is asking then answer.

“Hearsay”     Discoverable as long as it may lead to admissible evidence.  C.C.P. §2017.010 (pdf),  Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 391  Hint:  Don't confuse rules of evidence with rules for discovery.  Discovery rules are more liberal.

“Irrelevant”     The interrogatory must be relevant to the subject matter of the litigation. Deaile v. General Tel. Co. (1974) 40 CA3d 841 (pdf), 850.  Hint: fishing trips are permissible Greyhound Corp. v. Superior Court (1961) 56 C2d 355 (pdf), 383-385, just be prepared to state what you are fishing for.

“Overbroad”     Valid only if the question calls for an undue burden such as “shotgun” interrogatories” as they are too general (i.e., “Please state the identity of each and every person who has knowledge of the relevant facts of the litigation.”)  See CEB, California Civil Discovery Practice (4th ed. 2009) §7.85

“Burdensome and Oppressive"  The showing required to sustain this objection is that the intent of  the party was to create an unreasonable burden, or that burden created does not weigh equally with what requesting party is trying to obtain from it. See Mead Reinsurance Co. v. Superior Court (1986) CA3d 313 (pdf). In the Mead case, the objecting party showed that it would require the review of over 13,000 claims files requiring five claims adjusters working full time for six weeks.

"Information equally available to asking party"     The only time this objection works is if a party has to go get public records [Bunnell v. Sup. Ct. (1967) CA2d 720 (pdf), 723-724] or interview independent witnesses [Holguin v. Sup Ct. (1972) 22 CA3d 812 (pdf), 821] in order to answer the questions.

Referencing Documents:    The “see complaint” type  answer is not proper.  If the question requires reference to some other document, then the document should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory. Weil and Brown Civil Procedure Before Trial (TRG 2009) §8:1049 citing Deyo v. Kilbourne (1978) 84 CA 3d 771(pdf). The exception to this is C.C.P. §2030.230 (pdf) where the code allows the answering party to allow the interrogating party to inspect the files and records. However, the answering party must show: (1) a compilation, abstract, audit or summary of its records is necessary in order to answer the interrogatory; and (2) no such compilation etc. exists; and (3) the burden or expense of preparing or making it would be substantially the same for the asking party as it would for the answering party.

Though the statutory authorities used above are for interrogatories, there is corresponding statutory authority for requests for production of documents and requests for admissions.  The case law can be applied for other discovery devices.