Request for Production of documents

Subscribe to Request for Production of documents via RSS

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?

Just wondering, but what does the phrase “acted with substantial justification” mean in the sanctions statute for motion to compel depo testimony, CCP 2025.480 (pdf)?

Does it mean the conduct that led the moving party to make the motion has to be substantially justified? Or does it mean the decision to make or oppose the motion to compel has to be substantially justified?
Continue Reading Acted with Substantial Justification

iStock_000020477927XSmall copy.jpg

DILEMMA: It is 30 days before trial and you get the final responses to your propounded discovery.  In reviewing responding party’s answers to supplemental interrogatories the verified response says “Responding party states that all answers to Interrogatories, Set No. One, that were previously served in this action remain the same.”  Yet years have passed, records have been obtained, experts have been deposed and you know they’re lying. What do you do?
Continue Reading All Answers Remain the Same

In responding to Requests for Production of documents you have three response choices (1) agree to produce (C.C.P. §2031.220); (2) state that after a diligent search and a reasonable inquiry you have no documents (C.C.P. §2031.230) or (3) object (C.C.P. §2031.240). If you chose option three, then you must prepare a privilege log. Although C.C.P. §2031.240(b) does specifically not state the kind of identification that is required, it is expected that for each document withheld that the privilege log state (a) the nature of the document (e.g., letter, memorandum, (b) date, (c) author, (d) recipients, (e) the sequential number (or document control umber, if any), and (f) the privilege claimed. See California Civil Discovery Practice (CEB 4th Ed. 2011) §3.192 citing Wells Fargo Bank v. Superior Court (2000) 22 C4th 201 and §33.201for a sample of a privilege log.
Continue Reading The Document from Hell–aka The “Privilege Log”

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.

More often then not I see responses to document requests being done (1) by the one with the highest bar number on the pleading (a.k.a. the newbie associate) and/or (2) by the attorney dictating at their desk instead of taking the time to sit down with the client, determining whom they should be talking to and knowing what questions to ask.

It is my opinion that the person who should be talking to the client and collecting the documents is the experienced senior attorney who has a relationship with the client and knows what questions to ask. If the senior attorney still chooses to delegate, then they need to be “hands on” and take responsibility whether or not a “diligent search” and “reasonable inquiry” were in fact made prior to the response and production being served.
Continue Reading INSPECTION DEMANDS-What is a Reasonable Inquiry?

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? This is a two-prong inquiry. The first being…
Continue Reading INSPECTION DEMANDS-What is a Diligent Search

I recently reviewed a case management order in a complex construction case venued in Southern California. The order required all parties to produce:

“Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.”

There are so many things wrong with this request I do not know where to begin.
Continue Reading Give Me All Your Documents!

Nine months after the Special Interrogatories were propounded, the Discovery Referee, found that the plaintiffs had “deliberately misconstrued the question” as to economic damages and determined that “the objections and each of them to be unreasonable, evasive, lacking in legal merit and without justification”. Clement at 1284 The Referee recommended that the motion to compel further responses be granted and that plaintiffs were to reimburse defendant $4,950.00 for legal fees, $40 for filing the motions to compel and $1,642.50 for defendants portion of the Discovery Referee’s fees for a total sanction of $6,632.50. The trial court agreed with the recommendation.
Continue Reading Garbage Objections = Sanctions

You have been served with the Motion to Compel Further Responses with a Separate Statement of Items in Dispute the size of your fist and your response is due in two weeks. Now what do you do? First, take a deep breath. This is the time you decide when to “hold them and when to fold them” because how you respond may end up setting the tone between you and opposing counsel for the entire case.
Continue Reading GAME ON-The Opposition

Discovery motions are the banes of most attorneys’ existence and they are often relegated to the newbie in the office to prepare. Young associates as well as other attorneys struggle on what needs to be in the papers and exactly how to convince the court that they should win.

With the courts’ having budgetary problems and staff shortages, it is in your best interests to make it real clear to the court (1) what has happened; (2) what you want the court to do; and (3) why you are entitled to the discovery and sanctions in a succinct fashion.
Continue Reading What Should Your Discovery Motions Look Like?