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
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?
Many motions for terminating sanctions are denied due to the papers being deficient due to a lack of a showing of abuse and prejudice.
Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”
One of the most common questions I am asked is: when does the clock start regarding bringing motions to compel written discovery? The statutes all contain the same language, but it’s not that easy to decipher. Below is a list of scenarios with the applicable statutes and case law regarding the different responses you may receive.
FAILURE TO RESPOND There is no time limit on bringing the motion to compel the response to the Interrogatories, or the request for production of documents, or have the admissions be deemed admitted. See CCP §§2030.290(b), 2031.300(b) and 2033.280.
RESPONSES WITHOUT VERIFICATION There is no time limit on bringing the motion, as an unverified response is tantamount to no response. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1102 citing Appleton v. Sup. Ct. (1988) 206 CA3d 632, 636.
RESPONSES WITH ONLY OBJECTIONS Need to bring the motion within 45-days of service of the response. See CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
Responses that only contain objections need not be verified by the party but the response must be signed by the attorney. See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.
RESPONSES WITH ANSWERS AND OBJECTIONS Need to bring the motion within 45-days of service of the response. See CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
The Fourth District Court of Appeal in the case of Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855 answered the question whether the 45-day period to file a motion to compel further responses begins to run upon service of a combination of unverified responses and objections if the motion challenges only the objections. The Court held that “the most reasonable construction of the applicable statutes seems to us to require verification of such a hybrid of responses and objections before the time period begins to run.”
The response must be signed under oath by the responding party and the attorney. See CCP §§ 2030.250(a),(c), 2031.250(a),(c), 2033.250(a), (c) and Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1113 citing Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 CA3d 339, 344.
AMENDED RESPONSES The clock on a motion to compel further responses begins to run once the “supplemental verified responses” are served. See CCP §§2030.290(b), 2031.300(b) and 2033.280. See Golf & Tennis Pro Shop, Inc. v. Superior Court, 2022 Cal. App. LEXIS 855.
REMEMBER:
Stipulations to extend the time to bring a motion to compel further responses must be in writing with a date certain. See Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1148 and CCP CCP §§2030.300(c), 2031.310(c), and 2033.290(c).
Delaying the motion beyond the 45-day limit waives your right to bring a motion to compel as the court loses jurisdiction. See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App. 3d 681 at 683-684 and Sexton v. Superior Court (1997) 58 CA4th 1403, 1409-1410
The court may toll the deadline for filing a discovery motion if an Informal Discovery Conference is requested pursuant to CCP §2016.280. See blog “If Meet and Confer Fails, Ask for Help.”Continue Reading When Do I Have to Bring a Motion to Compel Written Discovery?
Recently I was contacted by an attorney who asked:
“When does the 45 days to bring a motion to compel further responses to RPD begin? Is it when they serve their written response with an asserted privilege, or when they produce documents? The issue is over an asserted attorney client privilege. They produced redacted documents, no privilege log yet.”
Continue Reading Does the 45-Day Rule Apply When No Privilege Log was Served?
Assume you receive the following response to your Requests for Production of Documents:
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. Notwithstanding said objections, no documents.
In reviewing the response, it is likely you are focusing in on the fact that there are garbage objections to your request and that you weren’t provided a privilege log. However, there is another issue that you should take very seriously—the document response is not in compliance with California Code of Civil Procedure section 2031.230.Continue Reading Nail Down Whether the Documents You are Seeking ever Existed and Where They are Now
There were three changes to the Discovery Act that became effective on January 1st, 2020 which can be found in Code of Civil Procedure sections 2031.280, 2016.090 and 2023.050. This blog will discuss the change to C.C.P. §2031.280 and its significance.
California Code of Civil Procedure § 2031.280 titled Form in which documents to be produced; Form for producing electronically stored information; Translation of data subdivision (a) states as follows:
Old Statute:
(a) Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.
New Statute:
(a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.
Difference:
Responding party can no longer produce documents kept in the “usual course of business. “Continue Reading Make Sure You are Aware of the New Document Response Requirements
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 than the exception?
Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court
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?