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.]
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To determine whether or not a responding party has made a reasonable inquiry, you must determine where the responding party searched (what efforts were made), who did they talk to (did they make an inquiry to their legal department, human resources, customer relations, the employees in the chain of command, etc.), and what were the questions they asked.

More often then not I see responses to document requests being done (1) by the one with the highest bar number on the pleading (a.k.a. the newbie associate) and/or (2) by the attorney dictating at their desk instead of taking the time to sit down with the client, determining whom they should be talking to and knowing what questions to ask.

It is my opinion that the person who should be talking to the client and collecting the documents is the experienced senior attorney who has a relationship with the client and knows what questions to ask. If the senior attorney still chooses to delegate, then they need to be “hands on” and take responsibility whether or not a “diligent search” and “reasonable inquiry” were in fact made prior to the response and production being served.
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