Sarah A. Thompson
Hersh Mannis LLPEmail: sthompson@hershmannis.com
Hersh Mannis LLP, a family law firm in Beverly Hills specializing in representing high-asset, high profile clientele in complex custody and litigation matters. Ms. Thompson is a member of the Beverly Hills Bar Association and the Los Angeles County Bar Association. Ms. Thompson practiced family law in San Francisco and was also a professor at the University of San Francisco School of Law.
So you just were served with a demand for production of documents. How do you respond?
Recall that the Code of Civil Procedure requires either a statement that the party will comply, a representation that the party lacks the ability to comply, or an objection to the particular demand. See Code Civil Procedure Section 2031.210(a). A statement indicating compliance must say whether compliance "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." CCP Section 2031.220.
One must also provide a statement of compliance or inability to comply when the request is only objectionable in part. "If only part of the demand is objectionable, the response shall contain a statement of compliance or inability to comply with respect to the remainder of the item or category." CCP Section 2031.240.
Below are common objections to consider in drafting your responses.
Burdensome, oppressive and/or harassing
Code Civil Procedure Section 2023.010(c) explains that one misuse of the discovery process is "[e]mploying a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." For instance, see Mead Reinsurance Co. v. Superior Court, 188 Cal. App. 3d 313 (1986), wherein a request was found burdensome and oppressive because responding would require the review of over 13,000 case files.
However, "[o]ppression must not be equated with burden [all discovery imposes some burden on the opposition] ... to support an objection of oppression there must be some showing ... that the ultimate effect of the burden is incommensurate with the result sought." West Pico Furniture Co. v. Superior Court, 56 Cal. 2d 407, 417 (1961) (internal citations omitted).
The unduly burdensome and oppressive objection can also be used to the extent a request purports to require a party to search electronically stored information from a source not reasonably accessible because of undue burden or expense absent an agreement or court order. CCP 2031.210(d).
Harassing, unduly burdensome and/or oppressive may be valid objections if a party is requesting significant personal documents, such as calendars or journals, yet there are only financial issues at stake. They also may be useful when the other party is requesting documents that he or she has access to, such as email or text messages with your client.
In addition, one may object if the probative value of the request may be substantially outweighed by the expense of responding and the probability that the information will necessitate undue consumption of time and create a substantial danger of undue prejudice or of confusing the issues. See Evidence Code 352. This may be a useful objection if, for example, the parties are only fighting about custody post-judgment, yet the other party requests bank records.
Vague, ambiguous and/or overbroad
You may also object if you believe the wording of the request is vague, ambiguous or overbroad. The overbroad objection should be considered when a party is requesting documents that span over an extended period of time.
Even when a request is ambiguous, a party has a duty to respond if the "nature of the information sought is apparent." Deyo v. Kilbourne, 84 Cal. App. 3d 772, 783 (1977) ("A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. (Hunter v. International Systems & Controls Corp., supra, 56 F.R.D. 617, 625.) Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response. (See Cal. Civil Discovery Practice, supra § 8.54.)"). In other words, you should still respond unless the question is totally unintelligible.
Information equally available to asking party
This objection is often used in family law when other parties request joint bank account statements or the like. It should be considered when the request requires a party to obtain public records or interview independent witnesses.
Irrelevant
The standard for relevance in discovery is much broader than in admitting evidence in the courtroom. However, a request may be objected to as irrelevant if it is not calculated to lead to the discovery of admissible evidence. See CCP Section 2017.010.
In post-judgment matters in family law specifically, requests may also be irrelevant if they violate Family Code Section 218 (discovery reopens only as to the issues raised in the post-judgment pleadings before the court).
Attorney-client privilege and attorney work product privilege
Confidential communications with your client are protected from discovery under the attorney-client privilege. In addition, work product is privileged. In fact, there is an absolute privilege for those writings that reflect an attorney's impressions, conclusions, opinions, legal research and theories. Note also that there is case law which supports privilege for invoices and billing statements, at the very least while the case is pending. See Evidence Code Sections 952 and 954; Code of Civil Procedure Section 2018.030; L.A. County Bd. of Supervis-ors v. Superior Court (ACLU of So. Cal.), 2 Cal. 5th 282, 297 (2016); L.A. County Bd. of Supervisors v. Superior Court (ACLU of So. Cal.), 12 Cal. App. 5th 1264, 1274-75 (2017).
Physician/ Psychotherapist-patient privileges
One can also claim physician or psychotherapist-patient privileges. However, these may be waived if the party has placed his or her mental or medical state at issue, such as when a party has claimed he or she cannot work based on a disability.
Marital privilege
Communications between spouses may be privileged pursuant to Evidence Code Section 980 et seq. This can be an especially important issue if a party remarries, and there is thereafter post-judgment litigation surrounding financial or custody issues with the prior spouse.
Privacy rights
Certain requests may intrude on the constitutional rights of privacy of your client or third parties. For instance, parties and third parties generally can claim financial privacy protecting bank records, although the applicability of this privilege is not as clear in family law cases, particularly as related to the parties' records. For reference, see California Code of Constitution, Article 1, Section 1; Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652 (1975); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992); DeMasi v. Weiss, 669 F.2d 114, 119-20 (3rd Cir. 1982); Schnabel v. Superior Court, 21 Cal. App. 4th 550 (1993).
Untimely
Discovery requests may also be untimely under Code Civil Procedure Section 2024.020, which sets the "close of discovery" at 30 days before trial.
There are many ways to object to discovery requests; the above is only meant to provide a sampling of common objections. Of course, there is risk in providing merely objections. The other party will likely send a meet and confer letter and threaten to file a motion to compel. You and your client will have a decision to make: either produce the documents voluntarily or maintain your objections and potentially be forced to respond to a motion to compel. Remember that sanctions are mandatory if the other party files a motion to compel and you unsuccessfully oppose the motion without justification. It may be worth engaging in meaningful meet and confer efforts to narrow the scope of discovery or define vague or ambiguous requests more narrowly.