A vital part of any litigation matter is discovery. Whether it is a severe personal injury matter or a divorce, a correct approach is critical to the success of your case. A litigant has the absolute right to engage in discovery by requesting the opposing party to produce documents to be used at trial and responses to proper questioning regarding the litigation; called interrogatories. Request for Admissions, although technically not discovery are as equally important.
It is both significantly important to the “propounding” party and the “responding” party to approach this aspect of litigation with the utmost particularity. What is intended to be an “informal” method of investigating evidence to a case; at times one side may engage in improper “gamemanship” by attempting to withhold evidence from the opposing party.
It is therefore critical to look carefully at discovery whether it be “responses” to discovery or “requests.” Remember, the court does not really want to be involved in what has been deemed an “informal” method of requesting evidence from the imposing party. There are deadlines to abide by and a motion to “compel” compliance must be approached with the utmost caution. If served with such a motion, the responding party better be able to explain it’s noncompliance; or comply.
Good Cause for the Discovery.
There must be good cause for discovery.
Code of Civ.Pro. § 2017.010 provides that:
Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter not privileged, that is relevant to the subject matter involving the pending action or to the determination of any motion made in that action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.
Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody condition, and location of any document, tangible thing, or land or other property. [Emphasis added.]
Discovery requests must both be relevant and material to the litigation. A party is prohinited from engaging in “fishing trips,” but the broad test is “reasonably calculated to lead to the discovery of admissible evidence.” id.
A Responding Party Must Use Proper Objections.
When responding to a discovery request for documents, it is important to object. Ff you fail to object within the statutory time limits, objections are waived including the objection based on “privilege.” That explains the attorney-client and work product privileges (to be explained in another post.) However, objections must be proper and not frivolous just for the sake of objecting.
The objections made to a document demand that are too general and/or meritless and/or frivolous, could warrant sanctions. Sanctions are imposed monetarily on a party that abuses discovery, infra. Below are common objections that when used must be lawful.
First, use of “General Objections”, are improper.
Code of Civ. Pro. § 2031.210 (a) (3) and § 2031.240 (b), require separate objections to document demands, including identification “with particularity” of each document “to which an objection is being made,” and further, a clear statement of the “specific grounds” for the objection, including but not limited to any privilege.
Vague and ambiguous: objections that the requested category of documents is “vague” and “ambiguous” can be without merit. A vagueness question “presents a question merely of whether under the circumstances and situation generally, considered in the light of reason and common sense, [a party] ought to recognize and be able to distinguish the particular thing that is required.” Pacific Auto. Ins. Co. v Superior Court (1969) 273 Cal.App.2nd 61, 66.
Second, “overbroad” is not a valid objection to an inspection demand unless either undue burden or irrelevance to the subject matter is demonstrated. California Judges Benchbook: Civil Proceedings–Discovery (Cal CJER 1994, §15.25 p. 243, citing Perkins v. Superior Court (1981) 118 Cal.App.3d 761,764-765, and Durst v. Superior Court (1963) 218 Cal.App.2d 460.
Third, the objection of “undue burden” can be both meritless and frivolous if blanketly asserted.
There is a “burden” inherent in the discovery process in all lawsuits, and a general “objection” of burden is insufficient to deny a party’s discovery rights. West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 418, 417-418.
As further noted in Cal. Prac. Guide: Civ. Pro. Before Trial (TRG, 2007), § 8:1476, in connection with document demands, responding counsel should:
Avoid raising the “burdensome and oppressive” objection unless the facts are truly unusual (e.g., very fragile property which could be damaged by any movement, touching, etc.). If you are going to object in such case, state the reasons for your objection and offer to permit whatever inspection can be allowed under the circumstances. [Italics in original.]
A party is entitled to seek a “protective order” limiting discovery if a party is seeking evidence improperly. However, the statutory test for a protective order on the basis of “burden” is set forth in Code of Civ. Pro. § 2017(c):
(c) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to admissible evidence. [Emphasis added.]
The California Supreme Court has held that before a trial court may restrict a discovery method for being unduly burdensome there must be evidence in the record to sustain that conclusion. Indeed, there must be evidence specifically quantifying the burden imposed on the responding party. West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at 417-419. (interrogatories); and Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428 (requests for admission). A moving party must clearly identify any undue burden. Additionally, the objections were frivolous, warranting sanctions.
A responding party’s “substantive” response, cannot be evasive.
A response cannot ambiguously and conditionally state for example: “After engaging in diligent search and reasonable inquiry documents produced to the extent possible. Discovery and investigation are ongoing and continuing, and this Responding Party reserves the right, without undertaking and affirmative duty to do so, to amend and/or supplement this response when and if additional information becomes available.”
A propounding party is entitled to an unequivocal statement that all documents responsive to a demand are being produced. Code of Civ. Pro. § 2031.220 sets forth the requirements for a “statement of compliance” to a document demand.
A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
The conditional response is completely noncompliant with the Code.
Instead of stating that “all” documents will be produced, the response unilaterally sets conditions or limits on what is being produced.
The response first indicates that the responding party has unilaterally decided what a “relevant” document is. The response means that documents are being withheld that responding party has decided are “not relevant.” That is unacceptable under the Code meriting sanction by the court.
An article published in the San Francisco Daily Journal on September 6, 2007, and authored by Richard M. Coleman, Esq., who is “a full-time neutral with Alternative Resolution Centers, as well as a discovery referee” in the Los Angeles area, finds that these types of purported responses that are made with and subject to objections do not comply with the Code.
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 responses 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.
Code of Civ. Pro. Section 2031.240(b) (l) provides that a responding party: Identify with particularity any document … to which an objection is being made.[Emphasis added.]
This 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 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.[Italics in original; bold added.]
The 9th Circuit Court of Appeals ruled that a responding party must state unequivocally that no documents are being withheld.
In Merrick v. Paul Revere Life Ins. Co., — F.3d —-, 2007 WL 2458503 (August 31, 2007), a case venued in Nevada Federal Court, the 9th Circuit Court upheld a trial court judge order in limine which barred the defendant from introducing evidence at trial where the documents were withheld during discovery.
The insurers also challenge the district court’s order suppressing certain evidence placed in the claim file after litigation commenced. The district court granted this motion upon finding that the insurers withheld evidence that they were ordered to produce regarding their post-litigation treatment of Merrick’s claim. The insurers argue that the court erred in finding that they had withheld any evidence. “Courts need not tolerate flagrant abuses of the discovery process” and have “inherent power” to exclude evidence as a sanction for such abuses. Campbell Indus. v. MIV Gemini, 619 F.2d 24, 27 (9th Cir.1980). We review the imposition of discovery sanctions for abuse of discretion and the underlying factual determinations for clear error. Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1052 (9th Cir.1998). Based upon the record, we cannot conclude that the district court’s finding that the insurers withheld evidence is clearly erroneous. The insurers’ pretrial behavior gives rise to such an inference. The insurers invoked the privilege in response to a specific document production request, and continued to do so even after the magistrate judge instructed them not to invoke the privilege unless the privilege was actually shielding documents. Their responses expressly objected on the basis of privilege and attested that “subject to these objections,” their production was complete. fn3 Only after the magistrate ordered the privileges waived (in response to Merrick’s assertion that defendants were withholding evidence), and Merrick brought his motion in limine, did the insurers state unequivocally that no documents were withheld on the basis of privilege. fn4 Even then, counsel’s statement at the hearing could be understood as admitting the existence of withheld documents
The 9th Circuit Court of Appeals further held that the paucity of documents actually produced supports an inference that documents are being withheld.
In addition, the existence of withheld documents may be inferred from the paucity of material actually produced. Although the insurers received over 3000 pages of documents pertaining to Merrick’s claim after litigation began, it produced only three short memos analyzing this material, none of which was generated by the attorneys who were actively managing the case file after Merrick filed his complaint. fn5
Against these facts, the defendants offer only their sworn statement that documents were not withheld. While proving a negative is difficult, the defendants’ pre-trial conduct and the dearth of documents actually produced support an inference that the defendants withheld documents in violation of the magistrate’s order. Given the district court’s superior position to adjudge the insurers’ culpability, we conclude that the district court did not clearly err in so finding, and did not abuse its discretion in granting Merrick’s motion in limine.[Id., at p. 6: bold added.]
Again, the example very ambiguously and conditionally states: “After engaging in diligent search and reasonable inquiry documents produced to the extent possible. Discovery and investigation are ongoing and continuing, and this responding party reserves the right, without undertaking an affirmative duty to do so, to amend and/or supplement this response when and if additional information becomes available.” This response is not code compliant and a discovery abuse. No diligent search and reasonable inquiry was conducted of documents with the responding party’s possession, custody and control.
A propounding party is entitled to an unequivocal statement that all documents responsive to the demand are being produced. Code of Civ. Pro. § 2031.220 sets forth the requirements for a “statement of compliance” to a document demand.
A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. [Emphasis added.]
A conditional response is completely noncompliant with the Code.
Instead of stating that “all” documents will be produced, the response unilaterally sets conditions or limits on what is being produced; which was nothing.
The response first indicates that the party has unilaterally decided what a “relevant” document is. It did so because it never conducted a diligent search of reasonable inquiry. The response means that documents are being withheld that the party has decided are “not relevant.” That is unacceptable under the Code.
Documents Within Responding Party’s Control.
The case law is very clear when it comes to responses to document requests, “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782-785; See Smith v. Superior Court (1961) 189 Cal.App.2d 6, 8-9; Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427,433.
Records are all records that are within responding party’s control when he can merely go to the entities and request copies, order them, or, the responding party is in possession of these documents. The entities can all be local and no burden would therefore exist. The fact that a propounding party may be able to gather these documents is irrelevant and does not excuse responding party’s discovery abuse; propounding party requested it produce them in an action. He must comply with the Code.
This could set the stage for requests of a court order requiring further response that is not “conditioned” in any manner, and an unequivocal statement that all documents have been produced, or, that a diligent search and reasonable inquiry was conducted. Absent such a court order, the concealment of relevant information and documents by a responding party will continue, and will deny justice to the propounding party.
If in the event no documents have been identified, and in sum the responses to the document demand is totally flawed meriting sanctions. Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513; Bob Barker Company, Inc. v. Ferguson Safety Products, Inc., 2006 WL 648674 (N.D.Ca.2006). No documents were even identified. Volkswagen of America, Inc. v. Superior Court (Rusk) (2006), 139 Cal.App.4th 1481.
When responding to interrogatories, the Discovery Act requires a party to make a reasonable and good faith effort to obtain the information before responding to the interrogatories. Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496. This includes a party’s lawyer Smith v. Superior Court (Alfred) (1961) 189 Cal.App.2d 6, agents or employees Gordon v. Superior Court (1984) 161 Cal.App. 3d 151, 167-168. family members Jones v. Superior Court (1981) 119 CAl.App.3d 534, 552. See Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1051-1060. This means that an attorney can’t just pawn off the responses to the client or spend an hour and dictate the responses off the top of his head. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390.
Once gain, the standard is clearly set forth in Deyo v. Kilbourne (1978) 78 Cal.App.3d 771, 783. However, if the interrogatory, request for admission or request for production of documents is found to be vague and/or ambiguous, many courts require that the interrogatory or request be rephrased. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430. This is not a valid objection. It is only valid if the interrogatory or request imposes an undue burden or is irrelevant to the subject matter. See §2017(a); id., Perkins v. Superior Court (1981) 118 Cal.App.3d 761, 764-765; and Durst v. Superior Court (1963) 218 Cal.App.2d 460.
Reference is made to Mead Reinsurance Co. v. Superior Court (1986) Cal.App.3d 313. In that case the objecting party showed that it would take 5 claims adjusters working full time a total of 6 weeks to sort and evaluate 13,000 claim files. Is would be very difficult for a responding party to assert this sort of oppression? Rare indeed.
Reference is similarly made to Greyhound v. Superior Court (1961) 56Cal.2d 355, 383-385 for a responding party’s alleged “fishing trip.” Reliance on Calcor Space Facility, Inc. v Superior Court (1997) 53 Cal.App.4th 216, 224-225 would be misplaced and distinguished. In that matter, a party served a subpoena on a nonparty requesting documents going back nearly 10 years. The subpoena was 12 pages. A propounding party’s documents request must point to the subject matter of the litigation.
The costs of the records are not always burdensome for discovery purposes. Oppressiveness and burdensome are inadequate objections. Responding party has the burden of showing that the demand was oppressiveness, burdensome, vague and ambiguous. Evid. Code §500.
In short, a responding party must produce the propounded documents forthwith as they are under his “control.” The case law is very clear when it comes to responses to document requests, “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, See Smith v. Superior Court (1961) 189 Cal.App.2d 6, Sigerseth v. Superior Court (1972) 23 Cal.App.3d 427,433. This means obtaining them from the custodians who possess them. Extraordinary costs here for a fee shift my not exist. San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400.
General, boilerplate and “nuisance objections” are totally improper, as this is what a defendant did here. Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513; Standon v. Superior Court (1990), 225 Cal.App.3d 898.
Proper Responses to Interrogatories.
The purpose of discovery is to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute before a trial is necessary. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2018) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 55 Cal.3d 335, 376.
Serving “[a]ppropriate written interrogatories are one of the means to accomplish the general goals of the discovery process designed to facilitate a fair trial.” Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389 [Emphasis added]
“Interrogatories expedite the resolution of lawsuits … [by detecting] sham claims and defenses … [and] may be employed to support a motion for summary judgment or a motion to specify those issues which are without substantial controversy.” Deyo v. Kilbourne, supra, 84 Cal.App.3d 779.
It is patently obvious ungrounded refusal to answer, prolonged delay and incorrect answers to interrogatories seriously inhibit “the principal aim of discovery procedures in general [which] is to assist counsel to prepare for trial….” Smith v. Circle P. Ranch Company et al. (1978) 87 Cal.App.3d 267, 273.
In Clement v. Alegre (2009), 177 Cal.App.4th 1277 [No. A123168. First Dist., Div. Two. Sep. 23, 2009.], a court issued sanctions for “meritless” and “nitpicking” objections. An award of $6,632.50 as discovery sanctions was not an abuse of discretion where the party was avoiding discovery “(in this case by responding to straightforward interrogatories with nitpicking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel”. Slip Opn. Page 2. The court found there was no substantial justification for such disputes to be forced into court “when no genuine dispute exists.” Slip Opn. Page 15.
The Court also confirmed that abuses need not be willful to be sanctionable. “There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed.” (Cal. Civil Discovery Practice (Cont.Ed.Bar 4th ed. May 2009 update) § 15.94, p. 1440, citing Code Civ. Proc. § 2023.030, subd. (a); 2
Hogan & Weber, Cal. Civil Discovery (2d ed. 2004) Sanctions, § 15.4, p. 15-8 [“Whenever one party’s improper actions — even if not ‘willful’ — in seeking or resisting discovery necessitate the court’s intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party.” (Fn. omitted)]; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)
A court issued monetary sanctions for evasive or non-responsive interrogatory answers. Saxena v. Goffney (2008), 159 Cal.App.4th 316, 330-334.
Request for Admissions.
When responses to requests for admissions are evasive or incomplete, or when objections are without merit or too general, the propounding party may move for an order compelling responses. Code of Civ. Pro. §§2033.290 (a) (1); (a) (2).
A responding party must either “admit” or “deny” a request for admissions. There is no in between. Evasiveness is not allowed. Deyo v. Kilbourne, supra, 84 Cal.App.3d 783.
Discovery is an important part of any litigation matter. However, if faced with abuse it must be approached with the utmost lawfulness or you can be faced with dire consequences.
If you are faced with a difficult discovery issue, you need a highly skilled civil litigation attorney on your side.
Robert Rodriguez, Attorney at law
Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the State of California Court of Appeal.