Production of documents request

Most discovery disputes involve requests for production of documents.  This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided. 

To begin, in responding to the document request, a party is obligated to list the documents in a privilege log that are being withheld on the claim of privilege.  C.C.P. §2031.240.  According to Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:1474.5a, citing Hernandez v. Sup. Ct. (2003) 112 CA4th 285, pg. 291-292, the required contents of a response, or if necessary, a privilege log, include:

  • Identifying each document for which a privilege or work product protection is claimed
  • Its author
  • Recipients
  • Date of preparation
  • Specific privilege or work product protection claimed.

The purpose of the responding party providing a “privilege log” is to provide a specific factual description of documents in aid of substantiating a claim of privilege especially for judicial review.   See Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 CA4th 110, 130 and Best Products, Inc. v. Superior Court (2004) 119 CA4th 1181.  If the claim of privilege is challenged, it is in responding party’s best interest to make it easy for the court to understand why the document was withheld or made the redaction to substantiate the claim of privilege.  California Practice Guide: Civil Procedure Before Trial (TRG 2023) §8:1474.5 citing Lopez v. Watchtower Bible & Tract Society of New York, Inc.  (2016 ) 246 CA4th 566, 596-597.  

In resolving the issue of whether or not a document is privileged and shouldn’t be disclosed, the court may rule on the objection based on the contents of the privilege log–assuming the privilege log is adequate enough for the court to make such a determination.   Pursuant to CRC, Rule 2.585 the court also has the ability to take the documents being withheld in-camera to determine whether the documents are privileged or discoverable.  If the documents are voluminous, many courts will appoint a Discovery Referee pursuant to C.C.P. §639(a)(5) to perform the in-camera review. Below is the current status of the law as what claimed privileged documents can be reviewed by the court in camera.

          ATTORNEY CLIENT PRIVILEGE

Communications between client and counsel are usually privileged against discovery.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:146 et seq. However,  the court cannot review the documents in camera to determine whether the attorney-client privilege is applicable. Ev.C. §915, Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736-737, Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2014) §37.29, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8.199.12.  As discussed above, the privilege log must be descriptive enough for the court to determine whether or not the privilege is applicable, including the participants in the communication, the date of the communication and the subject matter of the communication. 

            ATTORNEY WORK PRODUCT 

Attorney work product is subject to only qualified protection from discovery, and a court may order disclosure under certain circumstances.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:213 et seq. However, CCP §2018.030(a) provides that an attorney’s work product that consists of a writing that reflects an attorney’s impressions, conclusions, opinions or legal research or theories (absolute work product) is immune from discovery under any and all circumstances unless there has been a waiver.  Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2024) §43.12. The court may review the documents in camera to determine whether or not the documents are protected.  California Discovery Practice (CEB 2024) §3.64 citing Costco Wholesale Corp. v. Sup. Ct. (2009) 47 C4th 725, 736.  However, there is an issue whether or not the court can conduct an in-camera inspection to determine the absolute work product claim.  In Coito v. Superior Court (2012) 54 C4th 480, 499-500 the California Supreme Court held that the “trial court should . . . make an in-camera inspection to determine whether absolute work product protection applies to some or all of the material.”  This appears to conflict with Evidence Code §915(a) which bars the court’s ability to review material claimed to be protected under the absolute work product doctrine.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:238.1 and §8: 267.  Because Evidence Code §915(a) was in existence at the time the Supreme Court ruled on Coito, it can be assumed that the court meant absolute work product documents can be reviewed in camera. 

          RIGHT OF PRIVACY

The right of privacy is protected by Article I, §1 of the California Constitution and “protects [an] individual’s reasonable expectation of privacy against a serious invasion.” County of Los Angeles v. Superior Court (2021) 65 CA5th 621, 639.  However, the protection is not absolute and is only a qualified privilege.  In each case, the court must carefully balance the right of privacy against the need for the discovery to obtain just results in litigation.  Valley Bank of Nevada v. Sup. Ct. (1975) 15 C3d 652.  The more sensitive the information (e.g., personal financial information, medical records, employment records, customer lists, trade secrets, etc.), the greater the need for discovery must be shown.  Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:324 citing Hoffman Corp. v. Superior Court(1985) 172 Cal.App.3d 357, Tien v. Sup. Ct . (2006) 139 CA4th 528, 540 and County of Los Angeles v. Sup. Ct. (2021) 65 CA5th 621, 656.  Where several types of personal information are sought, the court must consider the possibility of requiring partial disclosure rather than denying discovery outright regarding each category of protected information.  Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:324 citing Alch v. Superior Court (2008) 165 CA4th 1412, 1437.  Since the right to privacy is only a qualified privilege, and a balancing of the rights of the parties is required, the documents can be reviewed in-camera to the court to determine whether the privilege is applicable and what information may be disclosed in light of any protective order that might be appropriate.  

OFFICIAL RECORDS AND INFORMATION PRIVILEGE

Official information privilege only has a qualified privilege except for disclosure of information that is forbidden by a federal or California statute. (Evid C. §1040(b)(1)).  The government entity has the burden of showing that the requested documents are privileged and must further explain why the official privilege applies, or declare it cannot so. The court may review these documents in camera to determine whether the documents should be disclosed in the interests of justice.  See People v. Superior Court (1977) 19 Cal. App. 3d 52 and California Civil Discovery Practice (CEB 2024) §3.109.

Most cases turn on the documentary evidence presented at trial.  It is important that when you serve your Demand for Documents, that you obtain the documents you are entitled to.  Seeking in camera review of the documents being withheld on the claim of privilege will further insure that all documents that you are entitled to has been produced by the other side.             

For further in-depth analysis of the privileges, the right to an in-camera review, and the scope of discoverability, see Jefferson’s California Evidence Benchbook (CEB 4th Ed. 2024) §§ 37-46. California Discovery Citations (TRG 2024) §§11:21–11:35, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:109-8:343 and Chapter 3 of California Civil Discovery Practice (CEB 4th Ed. 2024).

California law expressly provides for discovery of information about the evidence and contents of any insurance agreement under which a carrier may be liable to satisfy all or part of a potential judgement or to indemnify or reimburse payments made to satisfy the judgment.  C.C.P. §2017.210.  The statute also provides for discovery of whether coverage of the claim involved in the action is disputed, “but not as to the nature and substance of that dispute.”  C.C.P. §2017.210.

This section illustrates the tension between using insurance information to guide the parties toward resolution on the one hand, but recognizing that insurance and disputes with the insured are irrelevant to the issues in the case and confidential.  

Trying to further clarify the limited use of insurance in discovery, the legislature included cautionary language in C.C.P. §2017.210 stating that information about insurance is not admissible in evidence at trial by reason of disclosure. Evid. Code §1155 

In compliance with C.C.P. §2017.210, the Judicial Council approved Form Interrogatory (General) #4.1, which asks: 

At the time of the INCIDENT, was there in effect any policy of insurance through which you were or might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state: 

(a)           the kind of coverage; 

(b)           the name and ADDRESS of the insurance company;            

(c)            the name, ADDRESS, and telephone number of each named insured; 

(d)           the policy number; 

(e)            the limits of coverage for each type of coverage contained in the policy; 

(f)             whether any reservation of rights or controversy or coverage dispute exists between you and the insurance company; 

(g)            and the name, ADDRESS, and telephone number of the custodian of the policy.

Case law further supports the limited information a party can obtain regarding opposing party’s insurance.  The courts allow a party to obtain production of relevant insurance policies in a personal injury action. The rationale being that insurance information allows settlement to be “worked out on the basis of realities.”  Irvington-Moore, Inc. v. Superior Court (1993) 24 CA4th 733. 

An area that causes some confusion is the reservation of rights letter, or coverage position letter.  An insurer’s duty to defend is separate from its duty to indemnify or settle claims on behalf of an insured.  An insurer may agree to defend its insured but asserts that the policy may not cover all of the damage claims asserted and presents the insured with a letter explaining that.  Under C.C.P. §2017.210, the injured party is not entitled to a copy of that letter.  In other states following the Federal Rules, the reservation of rights letter must be disclosed. (i.e., NRCP 16.1(a)(1)(A)(v)) 

There are other limits, hinting at this balancing act.  An application for insurance can reveal a lot about the defendant, including sales and payroll information, related companies and officers and directors.  However, unless the insurance application is incorporated into the policy, the application itself is not discoverable.  California Civil Discovery Practice (CEB 2024) §1.44.  Another example is Reinsurance, which is also not discoverable. “Because a contract of reinsurance is…made for the benefit of the liability insurer…it has no relevance in an underlying tort action brought against an insured under the policy of liability.” Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2024) §8:92.3 citing Catholic Mut. Relief Soc. v. Sup. Ct. (2007) 42 C4th 358, 368.

These rules, however, do not apply to insurance litigation, where the insurer is a party.  Then, the rules of relevance, privilege, and work product apply as with any other lawsuit.  Insurance reserves, internal claim notes and communications relating to such reserves, and criteria or considerations used to establish size of reserves, are only discoverable when relevant in insurance bad faith litigation. California Civil Discovery Practice (CEB 2024) §1.47 citing Lipton v. Superior Court (1996) CA4th, 1959. By way of example, assume the case involves an auto accident, but the defendant’s insurer denied coverage.  The injured plaintiff may only obtain the policy and a statement that the insurer disputed coverage.  However, if the insured defendant sued the insurer over the denial, the entire underwriting file and whether the insurer placed a reserve on the file indicating it expected to pay out a claim may be directly relevant. It’s the same accident but two different results as to discoverability of insurance information.

In the case of City of L.A. v. PricewaterhouseCoopers, LLC (2024) 17 C5th 46 the California Supreme Court unanimously held that the Discovery Act gives courts independent authority to impose sanctions for discovery abuses and patterns of discovery abuse provisions. This was a complete reversal of the Court of Appeal’s decision which had limited the ability to obtain sanctions to the specific discovery device decision. In their decision, the Supreme Court stated that

“Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.” at pages 50-51. 

Continue Reading The Court has Inherent Power to Impose Discovery Sanctions

We all have been doing Zoom depositions for the last four years.  As we have limped along, we have developed implied rules and protocols for having these depositions, but there are no written rules or guidance on how these depositions should be conducted.   

Justice James Lambden (Ret.) who often is appointed as a Discovery Referee, has the answer.  When he is the Discovery Referee, he serves on all parties his “REMOTE (HYBRID) DEPOSITION PROTOCOL” prior to depositions being conducted.  When Justice Lambden attends the deposition, he confirms on the record that all parties have read and understands the protocol.  He has found that his protocol aids him and the parties in conducting a clean Zoom deposition.  

Continue Reading ZOOM DEPOSITIONS—What is the Protocol

I recently received an inquiry regarding Code of Civil Procedure section 2023.050, which now states that the court SHALL impose sanctions of $1000 payable to the requesting party regarding requests for production of documents in deposition notices or document demands.  These were the facts:   

Plaintiff brought a Motion to Compel Further Responses to Requests for Production of Documents.  Defendant opposed the motion and won.  The Judge then sanctioned the Defendant $1000.00 stating that he had no choice but to sanction the defendant pursuant to CCP 2023.050 as Plaintiff asked for sanctions and Defendant didn’t.  The Judge also told defense counsel that if Defendant had asked for sanctions, he would have awarded Defendant the $1000.00.  Defense counsel was bewildered with the imposition of sanctions and asked me if the Judge was correct. 

No, the Judge was not correct.  Code of Civil Procedure §2023.050 states:

Continue Reading Should I have been Sanctioned?

Consider the following question I received from a defense attorney.

“Plaintiff timely served updated verified responses to Form Interrogatories, Set #1, #6.4, 8.4, 8.6, 16.1- 16.8 and 17.1 (RFA #5) pursuant to a Supplemental Interrogatory request.  Instead of providing the information requested in the interrogatories, Plaintiff responded to each of the interrogatories with the following response: 

Pursuant to CCP §2030.230, Plaintiff identifies the documents Bates Stamped 00001 – 00290 she produced on March 1, 2024

The email went on to ask if Plaintiff’s response was proper. The answer is no.

Continue Reading Can I Reference Documents When Answering Interrogatories?

There are two significant changes to the Discovery Act this year: C.C.P. §2016.090 and C.C.P. §2023.050.  My California Civil Discovery: Chart for the Everyday Litigator has been updated to reflect these changes. 

Continue Reading Changes in Attitude—Nothing Remains Quite the Same 

According to the Second District Court of Appeal in the family law case of In re Marriage of Rangell decided on September 28, 2023 the answer is YES!  The Court of Appeal found that the husband had violated numerous family court orders for over two years and that the court’s imposition of sanctions pursuant to Family Code Family Code §271 was not abusive. In upholding the trial court’s imposition of $1000 a day sanction until the husband had complied with the court’s orders, the Court of Appeal stated: 

The lesson here to [husband] is plain: he cannot repeatedly flout the court’s orders for years and expect to get away with it, when his conduct delayed [wife’s] enjoyment of her share of community property and caused her to incur additional attorney fees and costs in enforcing the court’s orders. “‘Somewhere along the line, litigation must cease.’ [Citation.] [Husband] has yet to absorb this message,” warranting sanctions. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1317–1318, 1320 [116 Cal. Rptr. 3d 375] [“When making the award, the family court shall consider [Husband’s] dilatory tactics … and the policy of imposing sanctions in an amount sufficient to deter future similar conduct.”].)

This is another recent case where the Court of Appeal has come down hard on parties who have repeatedly violated court orders. Though the case was decided under Family Code §271, the rationale is applicable to other civil cases.     

Scenario:  A party makes outrageous claims against your client that is not supported by the facts.  Their lawyer repeats these claims in hearings before the court, placing you in a position of trying to argue against the falsity, and making sure that false allegations being made doesn’t prejudice the court against you and your client prior to the trial. 

The discovery plans in these cases are different than the other litigated cases.  Your goal is to discredit the false allegations either by  affirmatively proving that the allegation is false or showing that there is no evidence to support the false allegations in order to bring a motion for summary judgment/summary adjudication and motions in limine. In order to accomplish these goals your discovery plan will need to be strategic as well as a being thoroughly planned out as to what discovery devices will be the most effective.

Continue Reading Proving That the Opposing Party’s Accusations are False–Like Peeling an Onion

In my Discovery Referee cases, I am seeing more motions going to the brink with one party bringing a motion for issue, evidence and/or terminating sanctions.  Many of the motions are denied without prejudice due to the papers being deficient in showing a history of abuse and prejudice to the propounding party that warrant the granting of the motion.  This blog discusses the law regarding the court’s ability to award issue, evidence and terminating sanctions and what you need in your motion to be successful.   

Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”