Request for Production of Documents

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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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?


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Hand of referee with red card and whistle in the soccer stadium.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.


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iStock_000012781059_SmallUnlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses.  Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315.  Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”


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ANSWER:     A fictional document. A non-existent objection neither based in statutory authority nor found in case law. A statement by a party during the discovery phase that they will neither be held to the Code of Civil Procedure nor the rules of evidence.

In my years as a discovery referee, I have found that lawyers have gotten into the bad habit of inserting a preamble in their responses to interrogatories, requests for production and requests for admissions. These preambles often state the obvious as to what their rights are as responding parties. However, many times these preambles state general objections to the entirety of the propounded discovery and insert rights that are contrary to the obligations of the Discovery Act, the evidence code and current case law. Even though several interrogatories, requests for documents and request for admissions may be objectionable on the same ground they may not be objected to as a group. See Hogan and Weber, California Civil Discovery (2d. ed 2009) §51
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