I received a comment about one of my blogs saying:
Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing. One dope sent me objections that were over 100 pages.
I have written many blogs regarding how to handle discovery abuse by opposing counsel. These include filing motions to compel further responses, filing motions for protective orders and how to recover sanctions.
However, what I have been seeing lately is that the counsel responding to the written discovery does not understand what their obligations are in responding to written discovery. It’s as if they never read the statutes and never read any of the treatises. Instead the responses are full of garbage objections that have no merit and the responses show a failure of a proper investigation. This isn’t just coming from young lawyers but also seasoned lawyers with 15+ years of experience.
In understanding, what a party’s obligations are you need to understand that the purpose of the 1986 Discovery Act is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case so the case can be resolved before trial.
See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1 citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355, 376.
The attorney for the responding party needs to be aware of the statutes in responding to interrogatories, request for admissions and Requests for production of documents each have their own set of requirements for the response. Yet they have one thing in common:
The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496. “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Superior Court (1978) 84 CA3d 771, 782. This includes
a party’s lawyer; Smith v. Sup. Ct. (1961) 189 CA 2d 6
agents or employees; Gordon v. Sup. Ct. (1984) 161 CA 3d 151, 167-168
family members; Jones v. Superior Court (1981) 119 CA 3d 534, 552
See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1051-1060
This means that you can’t just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer “inability to respond.” See Sinaiko-Healthcare-Consulting-v.–Pacific-Healthcare
Requests for Production of Documents has a very specific obligation as you must make a “diligent search” and a “reasonable inquiry” which can be a very difficult standard for the responding party to meet if challenged.
There are many treatises on Discovery that explain in detail what are a party’s obligations in responding to discovery as well as what are the proper objections to written discovery. The treatises that I use are:
- California Civil Discovery Practice 4th Edition (CEB 2017)
- California Civil Discovery (LexisNexis 2017)
- Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017)
- Cal Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2017)
- California Discovery Citations (TRG 2017)
- Jefferson’s California Evidence Bench Book 4th Edition (CEB 2017)
I cannot stress how important it is to know your obligations in responding to written discovery as attorneys spend too much time and money arguing over inadequate responses to basic discovery.