Points of Law

Strategies in Responding to Discovery Demands

Douglas Robbins
March 21, 2022

Much litigation is consumed in a process known as discovery. One side propounds discovery, asking questions, demanding documents. The so called, "respondent" then has about thirty days to respond, answering the questions and producing the documents requested. It hardly ever goes right. The responses are often evasive. The document set is invariably incomplete. So the parties fight it out in what is known as a discovery motion. The central issues at play are often about whether the responses were code compliant, i.e. whether they abided by the rules as set out in the Discovery Act--a subsection of the California Code of Civil Procedure.

Failure to make code compliant responses is an easy way for a respondent to lose a discovery motion. The Discovery Act tells us exactly how to respond to the requests. It means what it says.

Code Compliance for Requests for Admission.When it comes to Requests for Admissions, for example, the responding party must either (1) admit as much of the request as is true; and/or (2) deny so much is untrue and/or (3) specify that the responding party lacks sufficient information to respond. See Cal. Civ. Proc. Code § 2033.220(b). If the respondent lacks information, then it must state that it performed a reasonable investigation seeking to obtain the missing information. Asserting ignorance is not enough. A code compliant response states all of these things.

Code Compliance for Interrogatories. A similar obligation arises in the context of responding to interrogatories (among other requirements). Unlike depositions where the deponent is allowed to simply plead ignorance, responses to interrogatories must declare that a reasonable and good faith investigation was performed before the respondent may state that it lacks the information requested. Cal. Civ. Proc.Code § 2030.220(b).

Code Compliance for Requests for Production. A perennial frustration for practitioners everywhere is the sense that the opposition is withholding documents in their possession. Invariably this does happen. The question is:  what can be done? For good or bad, discovery judges are neither omniscient nor omnipotent. They cannot force untruthful parties to be truthful. And they cannot make missing, or even hidden documents magically materialize. But courts do have the power to order parties, at least, to make code compliant responses.

In response to requests for production, respondents must (among other things) explain why they cannot produce the sought-after documents, stating that the documents (1) never existed; (2) were destroyed, lost, misplaced, stolen, or (3) never in the respondent’s possession. Cal. Civ.Proc. Code § 2031.230. Compelling code compliance may not force the opposition to produce the documents sought, but it does create a basis for impeachment at trial, and provide an explanation to the court as to which side should be held responsible for the vacuum of evidence on a subsequent dispositive motion. A code compliant response is also a powerful tool for excluding any said missing documents at trial. Surprisingly, the second best thing to getting the documents you want is locking those same documents out of the body of evidence.


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