ARC Articles

Compliance With Production Requests Is Harder Than It Looks

by: Richard M. Coleman, Esq.
©The Daily Journal Corporation

Here are three instances in which respondents asserted they complied with the requested production. Did they?

  • After stating objections in general terms, the respondent concluded with the following language: "Without waiving these objections and subject to them, and specifically excluding any communications between attorney and client, defendant responds as follows: Defendant will produce all responsive documents."
  • Did the respondent comply with the statutes? No. The response "specifically" excludes attorney-client documents, but does not state whether any in fact exist. If there are privileged documents, they must be identified with particularity.

    C.C.P. Section 2031.240(b)(1) provides that the respondent: Identify with particularity any document ... to which an objection is being made. [Emphasis added.]

    The response is also ambiguous: "Without waiving these objections and subject to them."

    What does that mean? The documents will be produced but objections made to them are preserved? Or, any documents to which objection has been made are being withheld?

    The movant is entitled to an unequivocal statement that all the documents responsive to the request are being produced. If withheld based on objection, as with claims of privilege, the documents must be identified with particularity.

  • In a case where the demand requested certain records for five years prior to the incident that was the subject of the suit, the response stated: "Attached hereto are ... records ... going back to one year prior to the subject accident."
  • OK? No! The recommended ruling was to grant the motion to compel response to the five-year period. The respondent may not unilaterally limit the time period for documents.

    The respondent argued that it had objected to the demand because the five-year length of time was "burdensome and oppressive," and, pursuant to C.C.P. 2031.240(a) , the respondent had complied with the non-objectionable part of the demand.

    While correct in responding to what it believed was not objectionable, the respondent had not complied with C.C.P. 2031.240(b) (2), which calls for the party to "Set forth clearly the extent of, and the specific ground for,the objection."

    An objection that a request is burdensome must be supported by detailed information demonstrating why compliance would be unduly burdensome and unreasonable. West Pico Furniture Company v. Superior Court 56C.2d 407, 418 (1961).

    There is authority saying that the showing can be made after a motion to compel is brought. I suggest better practice is to be forthcoming in the response. It may lead to discouraging the motion or to an agreement modifying the request. It also is a showing of good faith which may be of help in opposing sanctions.

  • In a motion to compel, the respondent cited C.C.P. Section 2031.240(b) (2) in its opposition and argued: "The motion to compel must be denied because the respondent has since produced all additional documents required."

    Two considerations are involved here:
  • (1) Any additional production must be accompanied by a verified response. C.C.P. 2031.250 (a) says, "The party to whom the demand for inspection response is directed shall sign the response under oath unless the response contains only objections." Compliance must meet the code requirements.

    (2) While the additional production may be grounds to deny the motion, sanctions may still be awarded for forcing the party to bring the motion. California Rules of Court, Rule 3.1030 [formerly Rule 341]: "Sanctions despite no opposition - The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed."

    In complying with discovery requests, there is no substitute for reading the applicable statutes.

Richard M. Coleman, a Fellow of the American College of Trial Lawyers and former president of the Los Angeles County Bar Association, is a mediator with Alternative Resolution Centers [ARC] who also serves as discovery referee. He is on the faculty of Pepperdine’s Straus Institute for Dispute Resolution.

copyright © By Richard M. Coleman, Esq.

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