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Los Angeles Daily Journal

Bad Legal Form - Framing An Objection To Discovery Without An Explicit Focus Forum Column


by: Richard M. Coleman, Esq.

©The Daily Journal Corporation

 


A motion was brought to compel inspection/production of documents. X Corp. prefaced its response to the request for inspection with what it called "Objections Applicable to All Requests" - another way of asserting improper "General Objections."

One objection was: "X Corp. objects to each and every document request to the extent the request seeks documents protected from discovery by the attorney-client privilege, work product doctrine, California Evidence Code Sections 1152 and 1119, Section 2018 of the Code of Civil Procedure, the right to privacy under California law, or any other lawfully recognized privilege or immunity from disclosure which may be triggered by the information or documents requested."

The objection is improper.

The code provisions governing responses to demands for inspection/production are similar to those governing interrogatory responses. There is no allowance for "General Objections" or "Objections Applicable to All Requests."

The Code of Civil Procedure Section 2031.210(a) specifies: "The party to whom an inspection demand has been directed shall respond separately to each item or category of item by any of the following ... (1) a statement that the party will comply with particular demand ..., (2) a representation that the party lacks ability to comply with the demand ..., (3) an objection to the particular demand." Section 2031.210(a) requires a separate response to each inspection demand and mandates that an objection be made to a particular demand.

Section 2031.240(b)(1) provides that the respondent: "Identify with particularity any document ... to which an objection is being made." [Emphasis added.] The above does not meet this requirement.

Here's another objection: "X Corp. objects to each and every document request to the extent the request seeks documents protected from discovery by the attorney-client privilege, work product doctrine, California Evidence Code Sections 1152 and 1119, Section 2018 of the Code of Civil Procedure, the right to privacy under California law, or any other lawfully recognized privilege or immunity from disclosure which may be triggered by the information or documents requested." [Emphasis added.] The wording "to the extent that..." does not meet the clear statement requirements.

X Corp. failed to set forth the objection separately, failed to give a clear statement of what privilege it was asserting as to what demand and failed to identify the document with particularity. The motions to compel were granted.

In law school, we were taught that we had left behind the medieval legalisms by which certain words were required to obtain a binding result. However, the Code of Civil Procedure still requires magic words. Consider this response to a second demand for production of documents.

"X Corp. has already produced [previously] the documents in its possession, custody or control responsive to the request."

The motion to compel further response was brought on the ground that certain particular items requested had not been produced previously and were not addressed in the response. Opposition to the motion included a declaration stating: "... the documents were all the documents that X Corp. was able to locate after a diligent search."

Motion to compel further response - Recommended ruling: Grant.

Sound unreasonable? Maybe so. But Section 2031.210(a) specifies: "The party to whom an inspection demand has been directed shall respond separately to each item or category of item by any of the following ... (1) a statement that the party will comply with particular demand ..., (2) a representation that the party lacks ability to comply with the demand..., (3) an objection to the particular demand."

Note the requirement of responding to the particular item. If the responding party does not have the particular item, it must so state pursuant to Section 2031.210(a)(2). The content of that statement is specifically prescribed in Section 2031.230:

"A representation of inability to comply with the particular demand for discovery shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced or stolen, or has never been, or is no longer, in the possession, custody or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody or control of that item or category of item."

The response of X Corp. above failed to meet the statutory requirements. The recommended ruling was: "Further response is ordered to conform to the requirements of CCP Section 2031(g)(2) [predecessor section.] Respondent filed a declaration in opposition to the motion which respondent contended substantially conformed to the requirements of [the statute]; however, the section requires specific language to appear in the response itself."

In responding to discovery, there is no substitute for reading the applicable statutes.

Richard M. Coleman is a full-time neutral with Alternative Resolution Centers, as well as a discovery referee. He is the former president of the Los Angeles County Bar Association and a faculty member at Pepperdine University's Strauss Institute for Dispute Resolution.

 

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