How To Respond To Requests For Production Of Documents Misplaced Or Lost Or Destroyed

Assume you receive the following response to your Requests for Production of Documents:

Responding party hereby incorporates its general objections as if fully stated herein. Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as information technology invades their and third parties' right of privacy. Responding party objects that the asking fails to specifically describe each individual particular sought or reasonably particularize each category of item sought. Responding political party objects that it is unduly burdensome and overbroad. Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of open-door testify. Responding party objects that plaintiff has equal admission to these documents. Responding party objects that the request seeks documents already in plaintiff's possession custody or control. Notwithstanding said objections, no documents.

In reviewing the response, it is likely you lot are focusing in on the fact that there are garbage objections to your asking and that you lot weren't provided a privilege log. Yet, there is some other issue that you should take very seriously—the document response is not in compliance with California Code of Ceremonious Procedure section 2031.230.

C.C.P. §2031.230 requires the responding party to provide in their response:

(1) A representation of inability to comply with the detail demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an attempt to comply with that demand.

(ii) This argument shall also specify whether the inability to comply is because the detail item or category has:

(a) never existed,

(b) has been destroyed,

(d) or has never been, or is no longer, in the possession, custody, or control of the responding party.

(3) The statement shall set forth the name and address of any natural person or organization known or believed past that party to take possession, custody, or control of that item or category of item.

Such requirement is more than than a mere technicality.

As to the party making the request, making sure the responding political party's response is in compliance with C.C.P. §2031.230 is crucial. The propounding political party must be able to rely on the response to decide whether whatsoever documents should have been produced, never existed, has been lost, stolen or destroyed or might be obtained through subpoenas to third parties. Only with the response complying with C.C.P. §2031.230 is the propounding party in a position to decide whether there is a need to bring a motility for issue, evidentiary or terminating sanctions due to Responding Party's disability to obtain the documents in question.

The JUDGE'S PERSPECTIVE found in California Civil Discovery Practice (CEB 4th Ed. 2020) at Department viii:78 gives the best communication as to why you should demand compliance of this code section:

An assertion of inability to comply may preclude the responding party from using a "recently discovered" requested document at trial unless the responding party can establish that a good faith effort was fabricated to discovery the document, and that the certificate was not available at the fourth dimension of the response. Because the ability to search for the document exists with the responding party, any error or neglect in the search may well accrue to the detriment of the responding political party, thus limiting the responding party'due south ability to "sandbag" the requesting party at trial.

The case of Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967 gives a long give-and-take as to how the failure to comply with C.C.P. §2031.230 tin atomic number 82 to issue, evidence and terminating sanctions.

How To Respond To Requests For Production Of Documents Misplaced Or Lost Or Destroyed,

Source: https://www.resolvingdiscoverydisputes.com/request-for-production-of-documents/document-production-code-compliant-demand/nail-down-documents-existence/

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