"Discovery Abuse"

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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 

UPDATED January 4, 2023

Effective January 1, 2023, Caifornia Code of Civil Procedure § 2016  which authorized authorized the court to conduct an informal discovery conference upon request of a party or on the court’s own motion was REPEALED.

As a Discovery Referee, I found the process helpful and incorporated it into many of my discovery orders.  I encourage parties to continue using informal discovery conferences as they are productive.  Agree to stipulate to extending the time to bring a motion to compel further responses in order to meet and confer in good faith.  Consider bringing in a discovery referee for the limited purposed of aiding you in the process.Continue Reading If Meet and Confer Fails, Ask for Help

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.Continue Reading DO YOU KNOW WHAT YOUR OBLIGATIONS ARE IN RESPONDING TO WRITTEN DISCOVERY?

UPDATED OCTOBER 21, 2020

C.C.P. §2031.280(a) was amended on 1/1/2020 to read:

(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.

See my blog  “Make Sure you are aware of the New Document Response Requirements” for an updated analysis.

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Original Blog

Have you ever had a situation where the opposing side has responded to each of your document production requests with the response?

All responsive documents within the custody and control of responding party will be produced.

And then they dump thousands of documents on you with no rhyme or reason as to how they are organized.

You then diligently send your meet and confer letter stating that the  documents are so disorganized that you “can’t make heads or tails as to which documents are responsive to which request.”  Opposing counsel responds saying that the document production was in compliance with the code as the documents were produced “as they are kept in the usual course of business” and they will neither modify their response nor the production.  So what do you do?

Continue Reading A Needle in a Haystack – When Opposing Party Dumps Documents

I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy. His story went like this:

Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation. The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London. Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin. Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time. Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.

Even though this is an extreme example, it is not unusual. The real question is what could he have done and what should you do if you find yourself in this situation.
Continue Reading When Discovery Abuse is a Trial Strategy