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?”

A party’s ability to request documents from the other side is one of most important tools in any discovery plan.  Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense.  However, as it has been said over the years, “The document speaks for itself.”  The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position.  This makes not only the document production important, but the response is just as important,  as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.


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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.


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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.
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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.
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