In this blog I have asked that lawyers write in if there was a topic they would like me to address.  I have received many requests over the years and the next couple of blogs will be responding to some of these requests.  Here is the first one.

“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”

Continue Reading Aren’t I Entitled to a Privilege Log?

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Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies?  According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!

Continue Reading No Waiver of Privileges for Inadequate Privilege Log

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In responding to Requests for Production of documents you have three response choices  (1) agree to produce (C.C.P. §2031.220 (pdf)); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230 (pdf)) or (3) object C.C.P. §2031.240 (pdf)Continue Reading The Document from Hell–aka The “Privilege Log”

businessman is carefully reading contract

Here is another great article from Miles B. Cooper.

Subtitle: Inadvertent disclosure of privileged documents during discovery

The lawyer read in disbelief. The memo, on defendant’s letterhead, crucified the defense. It was part of defendant’s production responses (and for reasons that will be talked about later, the fact that it was not electronically stored information is significant). The document had also been floating around for years. The defendant gave it to the police during the initial investigation. The police gave it back to the defense team when the defense asked for a copy of the police file. The defense produced it to the plaintiff. And, because it was responsive to a discovery category, the plaintiff produced it back to the defense. Continue Reading Read it and weep–Inadvertent Disclosure of Privileged Documents

Knights Fighting.jpgOfficial Form Interrogatories–General (Disc-001)  prepared by the Judicial Council were intended to be used to cover basic matters as well as being a foundational discovery device in personal injury and contract cases.  They also contained sub-parts which were not allowed when serving special interrogatories and they were not subject to the “Rule of 35”.  See California Code of Civil Procedure §§2030.030(a)(2) and 2030.060.  Their use was usually the first volley in the discovery battle.

For years the Courts had found that the Form Interrogatories were objection proof as to form with minor exceptions.  These minor exceptions usually involved case specific issues such as  checking the box with the definition of “INCIDENT” versus creating your own definition for “INCIDENT” and cases which involve complex business transactions.   

Continue Reading Are Official Form Interrogatories Objection Proof?

The meet and confer process has failed.   Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial.  Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.

Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.

Below is an example of how much time a SKELETON Motion to Compel Further Responses to Requests for Production of Documents would take.

NOTICE:          .5


A.  Introduction

* Describing what the motion seeks.

B.  Facts of the Case

C.  Procedural History regarding the Discovery in issue

D.  Argument

*  Why these documents are important to your case.
*  Why the objections are garbage.
*  What happened during the meet and confer process.

E.  Request for Sanctions

*  Calculation of your Hourly Rate x Hours Spent on the Motion + Costs.

F.  Conclusion

*  Delineate what you are requesting the court to award you

SEPARATE STATEMENT OF ITEMS IN DISPUTE         1 hour for every 10 requests

A.  Separate Statement of Items in Dispute. CRC, Rule 3.1345

B.  Concise outline of the discovery request and each response in dispute.   Cal Code Civ Proc § 2031.310(b)(3)


A.  Authenticating each document attached as an exhibit

B.  Describing why the documents are necessary for your case.

C.  Delineating  the meet and confer process. Describing in detail the amount of attorney time and      expenses in calculating sanctions


A.  All relief you are seeking from the court including overruling of the objections and compliance dates.

B.  Sanctions, including how much sanctions, against whom, whom to be paid to and when they are to be paid.

In the majority of cases, the above estimate is not realistic.

These motions can take anywhere from 15 to over 50 hours.  So, before you give your estimate regarding the cost of a motion to compel further responses to your client, consider the following in your calculations:


*  Locating an example of a notice to use as a template and drafting a compliant notice pursuant to CRC, Rule 3.1110.  SEE Cal. Civil Discovery Practice, 4th Ed. (CEB 2019) 15.46.


*  Are the facts of the case complex enough (and important enough) that the court should be educated to understand the motion in context?

*  Is there a history of discovery abuse that needs to be delineated in the procedural history?

*  Legal research and argument if a proper privilege log was not served with the response.

*  Legal research regarding each of the garbage objections.

*  Are you challenging the assertion of a privilege? What research  will be necessary to outline the boundaries of the privilege to make sure your motion is seeking non-privileged documents?

*  Legal research and argument if requesting an in camera review by the court.

*  Preparing a protective order for the court to put in place in order to resolve objections on the grounds of privacy, trade secret etc.

*  Legal research and argument for the appointment of a discovery referee for an in camera review and/or for all further discovery disputes.

*  A substantive argument regarding sanctions.


*  Even if you can easily copy  the request and the response this document takes a lot of time.  Expect close to ½ an hour for each request.  (i.e., 10 requests would equal 5 hours.)

*  Each request and response needs to be specifically addressed as to why you need the documents as well as why the objections are garbage.

*  If a protective order is being proposed, argue why the protective order resolves the objection(s) to that request.

*  If you are going to opt for discovery outline pursuant to Cal Code Civ Proc § 2031.310(b)(3), you are going to need to get permission from the court.  That process can include the need to bring an ex parte application to obtain the order.


*  Tracking down and copying all the documents you need for your declaration.

*  Deciding whether you need declarations and exhibits from your client, witnesses and/or your experts.

*  Making sure your declaration paragraphs and exhibits are accurately reflected in your memorandum of points and authorities.


*  Proposed Protective Order

*  Proposed Order for the Appointment of a Discovery Referee.

HINT:   Don’t forget the time and cost for reading the opposition, preparing the reply as well as traveling to and appearing in court as that could easily be an additional 10 hours.

Effective January 1, 2019, Code of Civil Procedure Section 2016.080 authorizes the court to conduct an informal discovery conference upon request of a party or on the court’s own motion. The statute reads:

(a) If an informal resolution is not reached by the parties, as described in Section 2016.040, the court may conduct an informal discovery conference upon request by a party or on the court’s own motion for the purpose of discussing discovery matters in dispute between the parties.

Continue Reading If Meet and Confer Fails, Ask for Help

 In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee:

Responding party hereby incorporates its general objections as if fully stated herein.  Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad.  Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party objects that plaintiff has equal access to these documents.  Responding party objects that the request seeks documents already in plaintiff’s possession custody or control.  Responding party objects to this request as it seeks documents that are not within defendants’ possession, custody, or control.

Boilerplate objections are becoming more and more common in response to each of the document requests.  The above is an example of inappropriate boilerplate objections. In fact, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513 and may result in waivers of privilege per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142, 2005 WL 1175 922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] Continue Reading WHY THESE OBJECTIONS ARE GARBAGE

Have you noticed that you are getting too many objections and very little documents to your document requests?  Have you also noticed that despite months of meet and confers you still don’t have a determination whether or not documents exist; and if they do exist, why they aren’t being produced? Is this scenario more the norm then the exception? Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court

Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s  toolbox  is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs”  gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears.  Below is his article.

Continue Reading How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of Documents