Recently I was contacted by an attorney who asked:
“When does the 45 days to bring a motion to compel further responses to RPD begin? Is it when they serve their written response with an asserted privilege, or when they produce documents? The issue is over an asserted attorney client privilege. They produced redacted documents, no privilege log yet.”
Continue Reading Does the 45-Day Rule Apply When No Privilege Log was Served?
In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee:
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.
Boilerplate objections are becoming more and more common in response to each of the document requests. The above is an example of inappropriate boilerplate objections. In fact, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513 and may result in waivers of privilege per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142, 2005 WL 1175 922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.]
Continue Reading WHY THESE OBJECTIONS ARE GARBAGE
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?
Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court
In this blog I have asked that lawyers write in if there was a topic they would like me to address. I have received many requests over the years and the next couple of blogs will be responding to some of these requests. Here is the first one.
“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”Continue Reading Aren’t I Entitled to a Privilege Log?
Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s toolbox is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents
Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs” gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears. Below is his article.Continue Reading How a Crafty Lawyer Hides Things by Avoiding the Details when Responding to Requests for Production of 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
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”