Requests for Production: Ensuring Code Compliance
Kristen M. Bush, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Often through Hollywood’s lens, legal controversies rise and resolve at hyper-speed. Little to no attention is paid to the significance of documentary evidence. However, real life litigation largely encompasses locating and organizing documentary evidence to support claims and defenses. The ability to receive and review relevant documents are essential to both proper case evaluation and trial preparation. With this in mind, the Legislature crafted Code of Civil Procedure sections 2031.210 et seq. to assist litigators with the tools necessary to ensure parties are properly responding to document requests.
Every response to a demand for inspection, copying, testing, or sampling is required to include one of the following three options: (1) a statement of compliance; (2) a representation of an inability to comply; or (3) an objection. Code Civ. Proc. § 2031.210 (a)(1)-(3). Keeping these three requirements in mind when examining individual responses to requests for production of documents, can serve as a guide to ensuring that no stone is left unturned when it comes to documentary evidence.
Complying: In Whole or In Part
When a party indicates that he or she will comply with the demand, the party is required to indicate whether the inspection “will be allowed in whole or in part.” Code Civ. Proc. § 2031.220. Essentially, the responding party must identify whether all documents or things in the demanded category that are in possession, custody, or control of that party (if no objection is made) will be included in the production or if only part of the documents will be made available.
Why should a party require a response that identifies whether a party is producing “all the documents that are in the possession, custody, or control of that party”? Imagine a response to a document request simply stating: “Please see the documents produced at ABC00001 – ABC00055.” While this may appear to be sufficient, the responding party did not indicate if the response is in whole or in part. The requesting party has no way of determining whether this response is intended to be all-inclusive. Has the requesting party been given only a piece of the puzzle? Are there additional responsive records?
A direct meet and confer letter to the responding party in order to get the Code-required language may be required. Opposing counsel may balk at the prospect of providing supplemental responses based upon this frequently over-looked Code requirement, but a civil and respectful tone explaining why the Code-compliant language makes a difference may be all that is necessary to receive a further response. You should not be surprised if the further responses that contain the required language have additional documents produced with them.
Inability to Comply
It is not enough to state that there is an inability to comply with a demand for documents. The requesting party is entitled to know why there are no responsive documents. Code Civ. Proc. § 2031.230. When there are no responsive documents, the responding party must affirm that a diligent search and reasonably inquiry has been made to comply with the demand for production. Further, the responding party must specify whether the inability to comply is because the item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer in possession, custody, or control of the responding party. Code Civ. Proc. § 2031.230. When the document is not available, but the responding party has knowledge of the person or entity that may have the document, the Code requires this information to be disclosed. The responding party must include 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. Code Civ. Proc § 20301.230.
Why is it necessary to know not only whether the document ever existed but whether it has been destroyed, lost, misplaced, stolen? Spoliation remedies may be available. For example, Judicial Council of California Advisory Committee on Civil Jury Instructions provides under instruction 204 that the jury may consider whether one party intentionally concealed or destroyed evidence. If the jury decides that a party did so, the jury may decide that the evidence would have been unfavorable to that party. This jury instruction may only be available to a party that pressed for fully compliant responses that indicate the reason for a party’s inability to respond to a document request.
If a responding party refuses to produce records based upon an objection, the Code requires specificity with respect to both the applicable objections and identity of what items are being withheld. The responding party must state any applicable objections for each item, category or item, or part of an item or category, for which responding party has not indicated a willingness to comply or has not represented an inability to comply. Code Civ. Proc. § 2031.240(b). When a party objects to the production of documents under Code of Civil Procedure section 2031.240(b), the implication is that the document or category or documents exists. See Bihun v. AT&T Info. Sys (1993) 13 Cal.App.4th 976, 991 (noting that an objection made to a request for documents that do not exist may violate an attorney’s ethical duty to act truthfully) (reversed on other grounds).
If an objection is based on privilege or work product protections, the particular privilege or work product claim must be expressly stated. Code Civ. Proc. § 2031.240(b)(2). Additionally, the response “shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Code Civ. Proc. § 2031.240(c)(1). The purpose of a privilege log is to provide specific factual description of documents in order to substantiate a claim of privilege and it is intended to permit a judicial evaluation of the privilege claim. Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181.
When crafting a privilege log identifying documents withheld based upon privilege, caution should be taken with respect to how much information is divulged in order to avoid waiving the privilege. Evidence Code section 912 makes clear that a privilege holder waives a privilege if it “has disclosed a significant part of the communication or has consented to disclosure by anyone.” This means that an objecting party must provide sufficient information for the other parties and the court to evaluate the claim without disclosing a significant part of the communication.
In Catelina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, the court instructed that while an adequate privilege log will vary from case to base based on the privileges asserted and the underlying circumstances, “a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” Catelina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.
In some cases, opposing counsel will refuse to provide Code-compliant responses to requests for production. If meet-and-confer efforts are unsuccessful, the Code’s specific requirements for responses provide the necessary outline for a successful motion to compel further responses. It is doubtful Hollywood will ever detail the intricacies of this tedious discovery practice, but the importance of recovering complete documentary evidence should not be overlooked. While not the most glamorous part of litigation, forcing compliance with document requests could make or break the case.