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?

A high percentage of cases turn on the existence or nonexistence of documents. It is important to recognize when the opposing party will not produce the documents you are entitled to. So, when you receive the following response to every one of your Requests for Production of Documents, let your client know that expenses will be rising, and start preparing your motion to compel further response and further production as you are in for a fight:

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.

In reviewing this response, a party should recognize that not only is this response full of garbage objections, but opposing counsel is doing everything they can so as to avoid providing you with the documents, a privilege log, or a code compliant response which you are entitled to. Not only does such a response fail to meet the obligations set forth in Code of Civil Procedure and current case law; it is also a violation of California Rules of Professional Conduct, Rule 3.4 titled Fairness to Opposing Party and Counsel which states:

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence, including a witness, or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b)  suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or produce…

Though it sounds aggressive and potentially expensive to your client to start preparing your motion, remember that it is going to take, at a minimum, an additional seven weeks to get the documents you are requesting from the time you file your motion (a minimum of 16 court days + 6 weekend days) and then to get the documents you are requesting (courts usually grants two – four weeks for compliance). Preparing the motion will likely be time consuming in order to address factually and legally each of these garbage objections to your requests.  Furthermore, there may be a need for a protective order to be negotiated and/or implemented by the court. There also may be documents that will require an in-camera review by the court or a court-appointed discovery referee.  Unfortunately, there may be additional motions  to get a code compliant response and all the documents produced that you are entitled to.

Meanwhile, you likely are facing discovery cutoffs and a trial date and you can’t conduct meaningful discovery and prepare for trial. Keeping all of this in mind, you should draft your meet and confer letter as Exhibit A to your motion and use the  cases in the next blog — Why these Objections are Garbage — in your meet and confer, and ultimately in your motion, to compel further responses and further production of documents.

Next:   Why these Objections are Garbage