The greatest discovery abuses come from responses to Requests for Production of Documents. Many responses contain a myriad of garbage objections, fail to contain a privilege log, along with producing documents that are not organized by category. Due to the responding party’s failure to comply with Codes of Civil Procedure § 2031.220, §2031.230, §2031.2400 and §2031.280, a motion to compel further responses and production of documents is the most common motion on the court’s docket. It is also the most time-consuming motion to not only prepare, but for the court to rule on.
On January 1, 2020, Code of Civil Procedure §2023.050 became effective which imposes mandatory sanctions for motions regarding Requests for Production of Documents. This new statute requires the court to impose mandatory sanctions on motions involving requests for production of documents. This sets up a party’s ability to bring issue, evidence and terminating sanctions as there will be an adjudication of prior discovery abuse.
The new statute reads:
(a) Notwithstanding any other law, and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose a two hundred and fifty dollar ($250) sanction, payable to the requesting party, upon a party, person, or attorney if, upon reviewing a request for a sanction made pursuant to Section 2023.040, the court finds any of the following:
(1) The party, person, or attorney did not respond in good faith to a request for the production of documents made pursuant to Section 2020.010, 2020.410, 2020.510, or 2025.210, or to an inspection demand made pursuant to Section 2031.010.
(2) The party, person, or attorney produced requested documents within seven days before the court was scheduled to hear a motion to compel production of the records pursuant to Section 2025.450, 2025.480, or 2031.320 that is filed by the requesting party as a result of the other party, person, or attorney’s failure to respond in good faith.
(3) The party, person, or attorney failed to confer in person, by telephone, letter, or other means of communication in writing, as defined in Section 250 of the Evidence Code, with the party or attorney requesting the documents in a reasonable and good faith attempt to resolve informally any dispute concerning the request.
(b) Notwithstanding paragraph (3) of subdivision (o) of Section 6068 of the Business and Professions Code, the court may, in its discretion, require an attorney who is sanctioned pursuant to subdivision (a) to report the sanction, in writing, to the State Bar within 30 days of the imposition of the sanction.
(c) The court may excuse the imposition of the sanction required by subdivision (a) if the court makes written findings that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(d) Sanctions pursuant to this section shall be imposed only after notice to the party, person, or attorney against whom the sanction is proposed to be imposed and opportunity for that party, person, or attorney to be heard.
(e) For purposes of this section, there is a rebuttable presumption that a natural person acted in good faith if that person was not represented by an attorney in the action at the time the conduct that is sanctionable under subdivision (a) occurred. This presumption may only be overcome by clear and convincing evidence.