Tips For New Lawyers: Requests for Production of Documents, Tangible Things, Land, and Other Property

By Katherine Dishongh, Esq.

In civil cases, parties can use Requests for Production of Documents (RFP) to obtain documents. There is no limit on the number of RFPs. Keep your RFPs in mind when drafting other discovery devices to avoid wasting limited Special Interrogatories or Requests for Admission.

Tip: To improve the quality and thoroughness (and reduce the number of objections), consider sending multiple sets of RFPs. (E.g., 2 sets of 20 questions vs. 1 set of 40 questions.) Also, instead of asking questions for information in a document, just ask for the document. This will also limit that opposing attorney’s ability to shift the narrative to favor their side. (E.g., instead of sending a Special Interrogatory for “State your returns policy,” or Request for Admission to “Admit you have a 30-day return policy,” send an RFP for the return policy.)

Code Compliant Responses

The California Code of Civil Procedure (CCP) essentially gives responding parties four code-compliant responses for each RFP. CCP §§ 2031.210-2031.240.

No Production: Legal Objections

If all of the RFPs are not produced based solely on legal objections, the requests for production do not need to be verified. CCP § 2031.250. A party can not avoid complying based on burdensome objections. Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 722. If documents are withheld based on attorney-client privilege or attorney work product, “the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” CCP § 2031.240 (c). The CCP requires responses to each request. CCP § 2031.210 (c). Although common, General Objections and Preliminary Statements are impermissible as they do not respond to each request.

Tip: A motion for further responses may overrule or strike General Objections, Preliminary Statements, or unmeritorious objections. CCP §§ 2031.310 (a)(3) [motion to compel further responses if an objection is without merit or too general]; 2023.010 (e) [misuse of the discovery process to make an unmeritorious objection]; 2023.010 (f) [misuse of the discovery process to make an evasive response]; 2023.030 [the court has the power to issue monetary and evidentiary sanctions for misuse of the discovery process]. This can be useful to avoid arguing those objections down the road, and let all parties know what, if any, objections apply each response.

2. No Production: Inability to Comply

If a party is unable to comply with a particular demand, the party must state three things: (1) a diligent search and reasonable inquiry have been made, (2) The item or category has either (a) never existed, (b) been destroyed, (c) been lost, misplaced or stolen, or (d) has never been, or is no longer in the possession custody and control of the responding party; and (3) the name and address of any person or organization believed to have possession, custody, or control of that item or category of item. CCP § 2031.220.

Tip: In meet and confer efforts, always cite the legal authority to support your position. Keep in mind, meet and confer conversations may be viewed by a judge, so be as reasonable and professional as possible. It never hurts to add “To avoid the need for judicial intervention….” when asking the party to produce documents by a certain deadline. This can be beneficial for prompt resolution and demonstrates consideration for the court’s potential involvement.

3. Production in Part

Where a party indicates that only some of the documents are being produced, the party must comply with CCP § 2031.220 and 2031.240 (c) with respect to the withheld documents.

Tip: Attorneys will often respond something to the effect of “Subject to and without waiving the foregoing objections, Responding Party responds as follows: Responding party will produce documents in its possession, custody or control.” This response is vague as to whether all, or some, of the documents are being produced. As such, this response is not code compliant. This approach can prove advantageous in the future if you wish to restrict the scope of documents to those disclosed during the discovery phase.

4. Production in Full

The response will state that all documents are being produced. CCP § 2031.280 (a) requires produced documents to be “identified with the specific request number to which the documents respond.” This can be done by citing specific bates numbers, or by labelling the documents (or a folder containing the documents) with the requests numbers to which they relate. Discovery sanctions may be appropriate where a party fails to organize or categorize the documents See Kanye v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470.

RFP and Discovery Delays

Upon receipt of non-compliant RFP responses, the propounding party should meet and confer. Be mindful of the motion to compel deadline. CCP § 2031.310(c) [Notice must be given within 45 days of the response or supplemental response.] If necessary, a propounding party can request a specific date for the motion to compel beyond the 45 days, as long as the parties agree. Even if the responding party agrees to supplement, setting deadlines for the supplementation and corresponding motion to compel are important. If the responding party later changes its mind and decides not to supplement, the propounding party may have lost its ability compel, absent an agreement.

RFA Genuineness of Documents

Sometimes during the meet and confer process, or throughout litigation, documents will be sent bates, or shown during a deposition, but without verification. In this instance RFA genuineness of documents is a useful tool, and an easy form (DISC-020). There is no limit to RFA Genuineness of documents “except as justice requires to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” CCP § 2033.030 (c). This will avoid authentication issues later on.

In a case where you want to verify the accuracy of an RFP, it would be wise to send an RFA asking the opposing party to verify the accuracy of the RFP, citing the date of the response and set number.

Motions for Compliance

If a responding party responded that they will “Produce all documents in its possession, custody or control,” and haven’t, or if the RFPs were not labeled to correspond with the categories in the demand, a Motion to Compel Compliance (MCC) may be necessary. In an MCC, the requesting party is not looking for the responding party to provide further responses, but rather to act in compliance with the responses given. CCP § 2031.320. MCCs do not hold a 45-day time limit, nor require a meet and confer, or separate statement pursuant to CRC rule 3.1345. Note, however, some courts require the parties to meet and confer on all motions, check the local and department rules.

Conclusion

While RFP’s can be a useful tool, it is important to remember why you drafted them in the first place, and how they will be read by the responding party, and the court. Always keep your motion dates in mind and meet and confer early. Maintain regular communication with challenging opposing counsel throughout the process to ensure an effective and efficient meet and confer process, without affecting your motion deadline. Utilize RFAs to get the information you need, and avoid extra work down the road. By keeping these tips in mind, you can maximize the benefits and effectiveness of Requests for Production of Documents.