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.

C.C.P. §2031.230 requires the responding party to provide in their response:

(1)       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.

(2)       This statement shall also specify whether the inability to comply is because the particular item or category has:

(a)        never existed,

(b)       has been destroyed,

(c)        has been lost, misplaced, or stolen,

(d)       or has never been, or is no longer, in the possession, custody, or  control of the responding party.

(3)       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.

Such requirement is more than a mere technicality.

As to the party making the request, making sure the responding party’s response is in compliance with C.C.P. §2031.230 is crucial. The propounding party must be able to rely on the response to determine whether any documents should have been produced, never existed, has been lost, stolen or destroyed or might be obtained through subpoenas to third parties.  Only with the response complying with C.C.P. §2031.230 is the propounding party in a position to decide whether there is a need to bring a motion for  issue, evidentiary or terminating sanctions due to Responding Party’s inability to obtain the documents in question.

The JUDGE’S PERSPECTIVE found in California Civil Discovery Practice (CEB 4th Ed. 2020) at Section 8:78 gives the best advice as to why you should demand compliance of this code section:

An assertion of inability to comply may preclude the responding party from using a “recently discovered” requested document at trial unless the responding party can establish that a good faith effort was made to discovery the document, and that the document was not available at the time of the response.  Because the ability to search for the document exists with the responding party, any mistake or neglect in the search may well accrue to the detriment of the responding party, thus limiting the responding party’s ability to “sandbag” the requesting party at trial.

The case of Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967 gives a long discussion as to how the failure to comply with C.C.P. §2031.230 can lead to issue, evidence and terminating sanctions.