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.

However, what I have been seeing lately is that the counsel responding to the written discovery does not understand what their obligations are in responding to written discovery.  It’s as if they never read the statutes and never read any of the treatises.  Instead the responses are full of garbage objections that have no merit and the responses show a failure of a proper investigation. This isn’t just coming from young lawyers but also seasoned lawyers with 15+ years of experience.

In understanding, what a party’s obligations are you need to understand that the purpose of the 1986 Discovery Act is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case so the case can be resolved before trial.

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1 citing Greyhound Corp. v. Superior Court (1961) 56 C2d 355, 376.

The attorney for the responding party needs to be aware of the statutes in responding to interrogatories, request for admissions and Requests for production of documents each have their own set of requirements for the response.  Yet they have one thing in common:

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496.  “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Superior Court  (1978) 84 CA3d 771, 782. This includes

a party’s lawyer; Smith v. Sup. Ct. (1961) 189 CA 2d 6

agents or employees; Gordon v. Sup. Ct.  (1984) 161 CA 3d 151, 167-168

family members; Jones v. Superior Court  (1981) 119 CA 3d 534, 552

experts; Sigerseth v. Superior Court (1972) 23 CA 3d 427,433

See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017) §8:1051-1060

This means that you can’t just pawn off the responses to your client or spend an hour and dictate off the top of your head and then answer “inability to respond.”  See Sinaiko-Healthcare-Consulting-v.–Pacific-Healthcare

Requests for Production of Documents has a very specific obligation as you must make a “diligent search” and a “reasonable inquiry” which can be a very difficult standard for the responding party to meet if challenged.

There are many treatises on Discovery that explain in detail what are a party’s obligations in responding to discovery as well as what are the proper objections to written discovery.  The treatises that I use are:

  • California Civil Discovery Practice 4th Edition (CEB 2017)
  • California Civil Discovery (LexisNexis 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017)
  • Cal Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2017)
  • California Discovery Citations (TRG 2017)
  • Jefferson’s California Evidence Bench Book 4th Edition (CEB 2017)

I cannot stress how important it is to know your obligations in responding to written discovery as attorneys spend too much time and money arguing over inadequate responses to basic discovery.

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

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During my seminar on “Sanctions Denied,” 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