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.

Continue Reading INSPECTION DEMANDS-What is a Reasonable Inquiry?

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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”


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?

Continue Reading INSPECTION DEMANDS-What is a Diligent Search

 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.]

Furthermore, it is highly unlikely that every category of the document request would have documents that fall within all of these objections.  When you get a response like the one above, you should question whether the responding party did a “diligent search” and made a reasonable inquiry” as required by the code.

Beyond that these objections are boilerplate, counsel must be careful not to assert objections to requests for production of documents that do not exist or not in the attorney or party’s possession, custody or control.  Such a response violates­­ an attorney’s ethical duty under Bus & Prof Code §6068(d) to act truthfully and, therefore, constitutes bad faith.  See Bihun v. AT&T Info. Sys. (1993) 13 CA4th 976, 991.

The point of Bihun is that by asserting a privilege to a document the attorney impliedly represents that the responding attorney has reviewed the document and contends that the privilege applies; if the document does not exist or is not in the possession of the attorney, those implied representations are made in bad faith.

(See blogs “Aren’t I entitled to a Privilege Log”; “Discovery Games and Misconceptions—What is Wrong with this Document Response”; “Inspection Demands—What is a Diligent Search“; “Inspection Demands—What is A Reasonable Inquiry” )

Below are the reasons why these individual objections are garbage and are being used by responding party to thwart your efforts in receiving the documents you are entitled to:

Preliminary Statement and/or General Objections—The Discovery Act does not authorize such a preamble such as a preliminary statement or general objections for any discovery device.  Even though several of the requests for documents may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (Lexis Nexis 2017) §5.18.  Instead a party must object “to the particular demand for inspection, copying, testing, or sampling”  and See C.C.P. §2031.210(a)(3) and “each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand.” See C.C.P. §2031.210(a)(3) and (c).

(See blogs: “What is a General Objection“; “Why You Need to Bring A Motion to Strike General Objections“;  and “Discovery Games and Misconceptions—Is the Court Correct That There is No Motion to Strike in Discovery“.)

*   Attorney-Client Privilege and Work Product—Communications between client and counsel are usually privileged against discovery.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2019) §8:146 et seq. 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 2019) §8:213 et seq. However, before asserting the privileges or stating the documents don’t exist; counsel needs to review the documents (“diligent search”) and speak to their client (“reasonable inquiry”) to determine whether or not the privileges are applicable.  See Scottsdale Ins. Co v. Superior Court (1997) 59 CA4th 263 Footnote 5.

Responding Party objects that this Request is compound.   Unlike C.C.P. §§2030.060(f) regarding special interrogatories which states No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question;” there is no similar statutory limitation regarding requests for production of documents. Thus, a request for production of document may be compound.

Not Reasonably ParticularizedC.C.P. §2031.030(c) states:

Each demand in a set shall be separately set forth, identified by number or letter, and shall do all of the following:

 (1) Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.

The case on point is Calcor Space Facility, Inc. v. Superior Court (1997) 53 CA4th 216 which stated that  “‘reasonably’ in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.”  When faced with this objection, the meet and confer process should be utilized to provide responding party with an understanding of what documents the demand is seeking and, if necessary, narrow the scope of the specific category.

Overbroad and Burdensome—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.  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. It is questionable if a party can meet this burden with most documents and information being stored in electronic form as responding parties can easily use search terms and software programs to locate the documents being requested.

Responding party objects as it invades their and third parties’ right of privacy—The right of privacy is protected by Article I, Section 1 of the California Constitution and the U.S. Constitution [Griswold v. State of Connecticut (1965) 381 US 479]  However, the protection is not absolute. In each case, the court would carefully balance the interests involved—the claim of privacy vs. the public interest in obtaining just results in litigation.  See California Civil Discovery Practice, 4th Edition, (CEB 2019) §3.157A citing Williamson v. Superior Court (1978) 21 Cal3d 829, 835; Hill v. National Collegiate Athletic Ass’n (1994) 7 C4th 1, 15; and Binder v. Superior Court (1987) 196 CA3d 893, 901 for the test that the court will use.  Also, the court most likely will take the documents in camera for a determination. See California Practice Guide: Civil Procedure Before Trial (TRG 2019) §8:322 citing Schnabel v. Superior Court (Schnabel) (1993) 5 C4th 704, 714.

*   RelevancyC.C.P. §2017.010 states that “Any party may obtain discovery regarding any matter, not privilege, 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.” 

This means that the scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of reason, logic, and common sense.  California Discovery Citations (TRG 2019) §2:1 citing Seahaus La Jolla Owners Association v. Superior Court (2014) 224 CA4th 754.

Relevancy may vary with size and complexity of the case and must be considered with regard to the burden and value of the information sought (among other factors). See Bridgestone/Firestone, Inc. v. Sup Ct. (Rios) (1992) 7 CA4th 1384, 1391.  Hint: fishing trips are permissible.  Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] Just be prepared to state what you are fishing for.

(See blog “It is Too Relevant!”)

Equal Access–Unless the request is asking the responding part to obtain a public document or a statement from a third party, the objection on the grounds of “Equal Access” is improper. See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2019) 8:1062-64 citing Bunnel v. Superior Court (1967) 254 CA2d 720, 723-724 and Holguin v. Superior Court (1972) 22 CA3d 812, 821.

Seeks documents already in Plaintiff’s possession, custody or control—The request is for responsive documents in responding party’s possession, custody or control.  Responding party is not relieved of their obligations because they believe propounding party has the documents.  See C.C.P. §§2031.210, 2031.220, 2031.230 and 2031.240 The exception is if the responsive documents have previously been produced in discovery by the responding party.  At that point responding party should identify the location (i.e., bates stamp number) of their previously produced responsive documents in their response.

 Seeks documents that are not within Defendants’ possession, custody, or control—This one-line response fails to comply with C.C.P. §2031.230 which states:

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. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

REMEMBER THE PRIVILEGE LOG–The responding party must also list each of the documents being withheld on the claim of privilege in a privilege log pursuant to C.C.P. §2031.240 titled “Statement of compliance or inability to comply when part of demand objectionable; Legislative intent regarding privilege log.” 

(See blog “No Waiver of Privileges for Inadequate Privilege Log”)

NEXT:  Exhibit A–Your Meet and Confer Letter





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Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.


Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS—What is Wrong with this Document Response?

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Recently I received an e-mail from an attorney who followed my advice regarding General Objections.  It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’  The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections.  The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

Continue Reading DISCOVERY GAMES AND MISCONCEPTIONS – Is the Court Correct That There is No Motion to Strike in Discovery?

Recently I was contacted to help on a party’s Motion to Compel Further Responses to Form Interrogatories, Requests for Production of Documents, and Requests for Admissions. In viewing opposing counsel’s responses to the discovery, I gazed upon the General Response and Objections preamble in absolute astonishment.  It read as follows:

Continue Reading Why You Need to Bring a Motion to Strike General Objections

ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51 Continue Reading What is a General Objection?

Family LawAs a discovery referee in family law matters, I often come upon issues where opposing counsel does not think the Discovery Act applies to their proceeding. They argue that it is not necessary to make a diligent search and a reasonable inquiry when producing documents because everything is informally provided or that they don’t need to respond to the interrogatories because opposing counsel has all the information he needs because they talked about it on the phone three weeks ago. My favorite argument was that the rules of evidence do not apply to family law. These misconceptions are due to the fact that there is a lot of informality in family law between the parties and between the parties and the court. Continue Reading The Discovery Act Applies In Family Law

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During my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy.  His story went like this:

Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation.  The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London.   Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin.   Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time.  Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.

Even though this is an extreme example, it is not unusual.  The real question is what could he have done and what should you do if you find yourself in this situation.

Continue Reading When Discovery Abuse is a Trial Strategy