The Importance of Code-Compliant Discovery in Litigation
Discovery is perhaps the most disliked aspect of a case by most litigators. Imagine the following scenario: It’s Friday afternoon and you just finished the sometimes-painstaking process of getting preliminary discovery responses from your client and serving verified responses on the opposing party. The client’s responses may have stated that you would comply and produce all non-privileged documents but at this time you have no documents to produce. Or perhaps your client gathered thousands of documents and expects you to produce them in bulk. These types of responses and “document dump” tactics, which used to be more commonplace in litigation, are no longer allowed and will likely draw a meet-and-confer letter from the opposing attorney that the responses are not “code-compliant.”
So what does “code-compliant” mean, and why is agreeing to produce “all documents” no longer acceptable? How did the discovery rules change and how are they impacting litigation preparation?
Previously, civil attorneys would respond to discovery document demands with a simple statement of compliance. Sometime thereafter, the documents (as defined under the code at that time) were required to be produced as they were “kept in the usual course of business.” This allowed for a more traditional “document dump” with no specific identification of which documents were responsive to which discovery demands. The prior rules traditionally gave the bigger party (i.e., corporation versus individual) the upper hand as the corporation could “bury” the other side in paper with no real guide as to which documents were responsive to which requests.
In early 2020, rules were adopted to help curb the historically popular “document dump” by requiring that documents be identified as responsive to specific requests. California Civil Procedure § 2031.280(a) requires that “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”
Under the new rules, the document production may be Bates-numbered, indexed, or organized sequentially according to the specific discovery request. While many attorneys have been slow to adopt CCP § 2031.280(a), from our experience the rules have curbed the popular discovery tactic of document dumping on opposing counsel. Now if a party wants to document dump, they must specifically state which of their documents are responsive to which requests.
In many cases, this rule change has led to increased costs for both the propounding and responding parties. For example, the propounding party may now serve many more narrowly tailored requests instead of broader requests that could encompass more documents. At the same time, the responding party must not only label which documents are responsive, but they may be more likely to stand on their objections and force motion practice. For instance, instead of producing all documents and letting the other side figure out which documents are responsive to which requests, the responding party may not have the time, patience, or indeed the desire to label responsive documents and would therefore be more inclined to simply object to the request. This approach, while saving time on the front end of the responses, may actually result in an overall waste of time as the parties may then engage in meet and confer efforts, and the filing, opposing, and arguing of a motion to compel. Clients involved in current litigation have already felt these increased costs and seen the increased work by their attorneys to organize and prepare documents that will be subject to these disclosure requirements, particularly in document-intensive litigation.
Although every case is different, most litigation attorneys agree that following this rule change reviewing documents produced by the opposing side has become more efficient and decreased the potential for motions to compel non-compliance. As the California Assembly Committee on Judiciary recognized, “making sense of an unorderly production is an inefficient use of time and effort by litigants.” Accordingly, CCP § 2031.280(a) may be seen as a positive development but likely subject to further legislative refinement to improve the discovery process.
Contact our experienced team of attorneys at Adkisson Pitet to help with any litigation matters.
Carl Berthold
Author