DISCOVERY CASE OUTLINE
©Richard E. Best 1998-2006 All rights reserved

 Discovery
Basics
DISCOVERY
REFEREE
CONTACT


Deposition
Interrogatory
Document
Admission
Experts
Med.Exam  Sanctions Meet & Confer Disc.Cutoff Referee

E-discovery
Atty.- Client
 Work Product
Privacy
Phys-Patient
Med.Qual.Rev
Reporter Priv
Official Info
Tax Return

DOCUMENT PRODUCTION

CONTENTS

CASE OUTLINE

CASES

SEE ALSO DEPOSITION CASE OUTLINE
PRODUCTION OF DOCUMENTS AT DEPOSITION

SEE ALSO
California Spoliation
Cost Shifting
Preservation Duty & Spoliation

CONTENTS


REQUESTS

Electronically Stored Information
Reasonable particularity from prospective of responding party
Preliminary discovery to focus production request
Definitions & instructions

ELECTRONICALLY STORED INFORMATION
RESPONSES
OBJECTIONS & DOCUMENT IDENTIFICATION
WAIVER OF OBJECTIONS

Lack of timely objection
Lack of verification of timely objection not waiver
Improper assertion not waiver

RELIEF FROM WAIVER OF OBJECTIONS
WAIVER OF DISCOVERY

Failure to move within 45 days of response [C.C.P. §2031.310(c)]
No bar to alternative discovery device of deposition

PRODUCTION & GOOD CAUSE
PROTECTIVE ORDERS
COST SHIFTING
SANCTIONS [for detailed discussion of sanctions including spoliation see the Sanctions Case Outline] See also Preservation Duty & Spoliation
RECOVERY OF DOCUMENTS IMPROPERLY HELD
RETURN OF PRIVILEGED DOCUMENTS INADVERTENTLY PRODUCED
ALTERNATIVES TO FORMAL DISCOVERY

DEPOSITION ALTERNATIVE

TOP
CASE OUTLINE

DOCUMENTS PRODUCTION CASES

In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542
Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181
Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339
Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.CA.2006)
Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court  408 F.3d 1142(9th Cir.2005). cert. den. 2005 WL 2493946 Oct 11, 2005
Calcor v. Superior Court (1997), 53 Cal.App.4th 216
Camp v. Jeffers Mangels Butler & Marmaro (1995), 35 Cal.App.4th 620
Cash v. Superior Court (1959), 53 Cal.2d 72
Coalition Against Police Abuse v. Superior Court(1985), 170 Cal.App.3d 888
In re Marriage of Candiotti (1995), 34 Cal.App.4th 718
Conn v. Superior Court (1987), 196 Cal.App.3d 774
Deary v. Superior Court (Hendrick) (2001), 87 Cal.App.4th 1072, 1078 -79
Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414
Elmore v. Superior Court (1967), 255 Cal.App.2d 635
Food 4 Less Supermarkets Inc. v. Superior Court (1995), 40 Cal.App.4th 651
Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819.
Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 69.
Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767
Glenfed Development Corp. v. Superior Court(1997), 53 Cal.App.4th 1113
Hernandez v. Superior Court (2003), 112 Cal.App.4th 285
Hill v. Superior Court (1974), 10 Cal.3d 812
Kayne v. Grande Holdings Ltd. (2011) ,198 Cal.App.4th 1470
Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390
Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913
Nelson v. Superior Court(1986), 184 Cal.App.3d 444
Northpoint Homeowners Assn. v. Superior Court (1979) 95 Cal.App.3d 241
People v. Superior Court (1967) 248 Cal.App.2d 276
Person v. Farmers Insurance Group of Companies(1997), 52 Cal.App.4th 813
Pillsbury, Madison & Sutro v. Schectman(1997), 55 Cal.App.4th 1279
Pullin v. Superior Court (2000), 81 Cal.App.4th 1161
Puritan Ins. Co. v. Superior Court(1985), 171 Cal.App.3d 877
Raymond Handling Concepts Corp. v. Superior Court (1995), 39 Cal.App.4th 584
Rico v. Mitsubishi Motors Corp. (2004), 116 Cal. App. 4th 51;2004 Cal. App. LEXIS 219
San Diego Unified Port Dist. v. Douglas Barnhart Inc.(2002), 95 Cal.App.4th 1400
Scottsdale Insurance Co. v. Superior Court(1997), 59 Cal. App.4th 263
Sexton v. Superior Court (1997), 58 Cal.App.4th 1403
Slagle v. Superior Court(1989) 211 Cal.App.3d 1309
Sperber v. Robinson (1994), 26 Cal.App.4th 736
Standish v. Superior Court (1999), 71 Cal.App.4th 1130
Standon v. Superior Court (1990), 225 Cal.App.3d 898
Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67
Swartzman v. Superior Court(1964), 231 Cal.App.2d 195
TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443
Toshiba America Electronic Components, Inc. v. Superior Court (2004), 124 Cal. App. 4th 762, 21 Cal. Rptr. 3d 532
Volkswagen of America, Inc. v. Superior Court (Rusk) (2006), 139 Cal.App.4th 1481
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110
Westinghouse Electric Corp. v. Newman & Holtzinger(1995), 39 Cal.App.4th 1194
Zellerino v. Brown (1991), 235 Cal.App.3d 1097

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San Francisco Discovery

CALIFORNIA DISCOVERY

OUTLINE


REQUESTS

Electronically Stored Information  Note the special provisions of the Electronic Discovery Act  effective July 2009

C.C.P.§2031.010(e) provides for a specific demand for "electronically stored information" that is in a distinct category separate from the demand for inspection of documents in subpart (b); this subject has its own set of rules which were grafted on top of the existing rules of discovery of documents etc.
E-Discovery Pocket Guide HERE from the  Litigation Section of the California Bar.
Article reviewing Calif. E-Discovery Act HERE.
See below re use of subpoena for ESI

ESI defined: C.C.P.§2016.020

(d) "Electronic"means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similarcapabilities.
(e) "Electronically stored information" means information that is stored in an electronic medium.

ESI C.C.P.§2031.030 "may specify the form or forms in which each type of electronically stored information is to be produced."

R & R Sails Inc. v. Ins. Co. of Pa.(S.D. Cal. 2008), 2008 WL 2232640    Sanctions for failure of a claims examiner to search for and produce electronic notes in database in an insurance breach of contract case.
Documents requested in state court under C.C.P. §2031 were defined by reference to the definition in Evidence Code 250. After removal to federal court, the Magistrate noted that the “boilerplate definition of "document" ... did not provide clear notice that Plaintiff sought discovery from electronic sources” but considered electronic documents to be within the scope of the request


Reasonable particularity from prospective of responding party

See also cases found at California Discovery Law   re production at depositions.

C.C.P.§2031.030(c)(1) "describing each individual item or by reasonably particularizing each category...."

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Request for PC owned by employer seeking production to search for relevant information upheld. Wrongful termination of 12 year executive 3 days before vesting of stock options.. Employer claimed termination was for misuse of company computer and accessing pornography. Empolyee admitted computer primarily used by him and by wife and children per normal practice contrary to official policy. Request for entire computer (including personal information and tax returns when owned by employer and no reasonable expectation of privacy) upheld over claim of privacy. Trial court had denied production motion; writ issued to require production subject to further proceedings including a protective order limiting discovery to "directly relevant" material and excluding "financial and other information that has no rational bearing on this case"]


Calcor v. Superior Court
(1997), 53 Cal.App.4th 216 [Evalute adequacy from prospective of producing party; subpoena duces tecum on 3rd party competitor; although facially detailed and particular, it was a demand for all mateial on a product for a 10 year period comprising 32 braod categories with no identification of specific documents, 12 pages with 3 pages of definitions, and 3 pages of instructions; ".... the grossly excessive use of 'definitions' and 'instructions' in and of itself, makes the subpoena unduly burdensome."; trial court modifications, limitations and protective order were insufficient and court of appeal rev'd.]

Designation requirements apply to requests for production and a subpoena duces tecum.

Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819.
Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 69.
Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 786.

Preliminary discovery to focus production request

Calcor v. Superior Court (1997), 53 Cal.App.4th 216 [Appropriateness depends on case; if deposition required, court should be liberal re 2d deposition]

Definitions & instructions not expressly permitted or prohibited for documents

C.C.P. §§2031.030
[Cf. interrogatories C.C.P. § 2030.060(d)&(e): no instructions but definitions permitted]

Calcor v. Superior Court (1997), 53 Cal.App.4th 216 [...the grossly excessive use of definitions and instructions, in and of itself, makes the subpoena unduly burdensome;]

See also Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913. Although the legal basis for the original motion to compel execution was not discussed and the deposition process was not used, the case was dismissed for refusal to comply with a court order requiring execution of an authorization required by hospitals to release medical records.

TOP --CASES-- CONTENTS
San Francisco Discovery

CALIFORNIA DISCOVERY

ELECTRONICALLY STORED INFORMATION,  "ESI"

C.C.P.§2031.010(e) provides for a specific demand for "electronically stored information" that is in a distinct category separate from the demand for inspection of documents in subpart (b); this subject has its own set of rules which were grafted on top of the existing rules of discovery of documents etc.
E-Discovery Pocket Guide HERE from the  Litigation Section of the California Bar.
Article reviewing Calif. E-Discovery Act HERE.

E-discovery has received considerable attention and publicity since the 1990s culminating in national publicity surrounding the adoption of amendments to the Federal Rules in 2006. California joined the parade with the Electronic Discovery Act effective in late July 2009. The act borrows several terms used in the Federal Rules and cases interpreting those terms and provisions should be consulted for guidance. However, california has always had its unique provisions, terms and case law which also apply. More important, the basic concepts and rules applicable to non-electronic discovery apply. Despite the hype, e-discovery is just a part of discovery of information in a media different from paper. Understanding electronic media that contains that information is a challenge more important and more demanding than just reading and understanding the new rules. Nevertheless, the new rules are vital and may contain some traps. Those applicable to a demand for production will be incorporated in this outline.

RESPONSES C.C.P. § 2031.210

ESI Respond as to "form" of ESI requested: C.C.P. §2031.280(c)

Object to form specified in request  See below re need to object to search as to inaccessible ESI
If no form is specified in the demand. the responding party shall state in its response the form in which it intends to produce each type of information

Respond separately to each item

will comply in whole or in part
lack the ability to comply
objection + identify with particularity the document and objection

Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [failure to respond properly may result in sanctions]

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court noted the failure to respond to a document request in accord with the discovery rules which necessitated granting the motion for further responses: "responses are too ambiguous to ... determine the extent to which [responding party] may be withholding responsive documents based on its other objections rather than asserting that no responsive documents exist. While ... responses were not "boilerplate" in the sense of containing only generalized objections of a sort that might be found in any case, Ferguson did repeat the same long paragraph of objections and explanations in all of its responses, regardless of the applicability of that recitation to the particular request."

Rodriguez v. City of Fresno (E.D.Cal.2006. Slip Copy)  2006 WL 903675.
"
At the beginning of the hearing, the Court inquired into Defendants' responses and explained that it was unclear whether documents were withheld and on what basis. Pursuant to this discussion, it appears that Defendants have produced the documents in their possession, and/or identified the documents withheld, in response to Request for Production Numbers 14, 15, 17, and 22, and that these requests are no longer an issue. The fact that the Court was required to undertake this inquiry, however, illustrates the inherent vice of the type of “boilerplate” objections used by Defendants. Such objections are not only nettlesome because the propounding party is left to speculate whether any documents have been withheld in reliance on the objections, but are also of little use to the responding party in light of the provisions of F.R.Civ.P. 34 which require the responding party to indicate whether or not production or inspection of the requested documents will be permitted."

Powerhouse Marks, L.L.C. v. Chi Hsin Impex Inc (E.D.Mich.2006) Copy, 2006 WL 83477 
The court criticized the use of boilerplate general objections stating: "Defendant Wal-Mart has asserted perfunctory "general objections" to each Interrogatory, asserting nearly every ground for objecting to an Interrogatory ever available to any party with respect to each and every one of Plaintiffs' Interrogatories. These objections can be easily discarded by a plain reading of Rule 33(b) which requires that "[a]ll grounds for an objection to an interrogatory shall be stated with specificity."


"Privilege Logs"

Hernandez v. Superior Court (2003), 112 Cal.App.4th 285, 292 ["...the expression, "privilege log," does not appear in section 2031 or anywhere else in the Code of Civil Procedure, whether in black letters or any other color. The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031. (See e.g., Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1223; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 269.) The purpose of a "privilege log" is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. (See Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516-1517.) The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege. (Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339, 346; Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492.)

Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.

PRIVILEGE LOG??? Although the two courts referred to a "privilege log", it is clear that they were discussing two different documents. The term is not found in the C.C.P. The trial court was referring to a document under oath that would provide facts supporting a claim of privilege. The appellate court was referring to a response in accord with CCP 2031(g)(3), though at one point it used the term in the same manner as the trial court. The term is commonly used by trial lawyers in a third manner: a document, often not even under oath, that identifies documents with varying degrees of particularity and adds additional information such as dates, recipients, senders, and privileges claimed. Some provide a factual basis to support the privilege claimed and some do not. There is no consistency among lawyers in the form of the privilege log.


Floeter v. City of Orlando  (M.D.Fla., March 2006 Slip Copy),  2006 WL 1000306  [PRIVILEGE LOG DESCRIBED "If responsive documents, or portions thereof, contain privileged information, the City shall produce a privilege log describing each document or portion thereof withheld on the basis of privilege. The privilege log must identify each document withheld pursuant to a claim of privilege by date, author, recipients (including recipients of copies), specific privilege or protection claimed and shall describe the subject matter of each document in sufficient detail to permit opposing counsel and the Court to assess the applicability of the claimed privilege or protection. Fed.R.Civ.P. 26(b)(5); Golden Trade S.r.L. v. Lee Apparel Co., Nos. 90 Civ. 6291(JMC), 90 Civ. 6292(JMC) and 92 Civ. 1667(JMC), 1992 WL 367070, at *5 (S.D.N.Y. Nov. 20, 1992) (quoting von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.1987))."]

Investigation: diligent search and reasonable inquiry [C.C.P. §2031(g)(2)]

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [P.M.K. deposition after corporation had financial problems and knowledgeable employees had left. The appellate court made clear that a "reasonable search" for documents had to be conducted and documents had to be reproduced at deposition: "…the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held."]

R & R Sails Inc. v. Ins. Co. of Pa.(S.D. Cal. 2008), 2008 WL 2232640    Sanctions for failure of a claims examiner to search for and produce electronic notes in database in an insurance breach of contract case. The Court ordered payment within 30 days of $39,914.68 [Cf. $67,154.72 requested and itemized] as reasonable expenses incurred due to the failure to conduct a reasonable investigation and produce electronic records from a data base. Sanctions were mandated since the failure to produce electronic notes was not “substantially justified” because the claims examiner “failed to recognize that the ... database that he entered notes into contained the 'daily activity logs or telephone records' that Plaintiff had been requesting.”
The Court also precluded evidence “Based on Defendant's past failure to timely produce electronically- stored information, and Plaintiff's concern that additional responsive electronically-stored information may be in Defendant's possession.

Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (January 7, 2008)
“...the Court finds that these attorneys did not conduct a reasonable inquiry into the adequacy of Qualcomm's document search and production and, accordingly, they are responsible,[*56] along with Qualcomm, for the monumental discovery violation.”
In Footnote 10 the court stated. "Leung's attorney represented during the OSC hearing that Leung requested a more thorough document search but that Qualcomm refused to do so. October 12, 2007 Hearing Transcript at 14-15. If Leung was unable to get Qualcomm to conduct the type of search he deemed necessary to verify the adequacy of the document search and production, then he should have obtained the assistance of supervising or senior attorneys. If Mammen and Batchelder were unable to get Qualcomm to conduct a competent and thorough document search, they should have withdrawn from the case or taken other action to ensure production of the evidence. See The State Bar of California, Rules of Professional Conduct, Rule 5-220 (a lawyer shall not suppress evidence that the lawyer or the lawyer's client has a legal obligation to reveal); Rule 3-700 (a lawyer shall withdraw from employment if the lawyer knows or should know that continued employment will result in a violation of these rules or the client insists that the lawyer pursue a course of conduct prohibited under these rules). Attorneys' ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court. Id.; Rule 5-200 (a lawyer shall not seek to mislead the judge or jury by a false statement of fact or law); see also, In re Marriage of Gong and Kwong, 157 Cal. App. 4th 939, 951 (1st Dist. 2007)  [*50] ("[a]n attorney in a civil case is not a hired gun required to carry out every direction given by the client;" he must act like the professional he is)."

In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542  [corporation must provide discovery in the possession, cusody or control of  its wholly owned subsidiary]

F.R.C.P. Rule 26(g)  certification of attorney "after a reasonable inquiry"  re complete, correct, proper etc.

Possession, Custody & Control

In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542, 544   Legal Control Test in Federal Court
Plaintiffs rely on a Ninth Circuit decision that "[a] corporation must produce documents possessed by a subsidiary that the parent corporation owns or controls." United States v. International Union of Petroleum and Industrial Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir.1989). The Ninth Circuit stated this in dictum but in dictum that is cited by numerous courts throughout the United States for the same proposition, that for purposes of compliance with Rule 34, a parent company has control of documents in the custody and possession of its wholly owned subsidiary
See also In re Citric Acid Litigation, 191 F.3d 1090 (9th Cir.1999) (court affirmed the "legal control" test as the standard for a parent's obligation to produce documents in the possession and custody of its subsidiary)("Even if International Union does not conclusively settle the question, we conclude-consistently with all of our sister circuits who have addressed the issue--that the legal control test is the proper standard under Rule 45).[citations] Courts apply the legal control test to requests for documents under both Rule 34 and Rule 45. "A rule 45 subpoena, as well as a rule 34 document request, may reach only those documents within the possession, custody or control of the subpoenaed person.[citations]
The Ninth Circuit in both International Petroleum and in the Citric Acid case reiterated the law as reflected in other rulings throughout the U.S. See, e.g. Hubbard v. Rubbermaid, Inc., 78 F.R.D. 631 (D.Md.1978) (stating that the nonparty status of wholly owned subsidiaries does not shield their documents from production, since the crucial factor is that the documents must be in the custody, or under the control of, a party to the case); In re Investigation of World Arrangements, Etc., 13 F.R.D. 280 (D.D.C.1952) (holding that corporation has control over subsidiary and must produce subpoenaed documents); see also Advance Labor Service, Inc. v. Hartford Acc. & Indem. Co., 60 F.R.D. 632 (N.D.Ill.1973) (corporation required to produce books and records of sister corporation with same directors and shareholders), cited in International Union of Petroleum and Indus. Workers, 870 F.2d at 1452.


Duty to create compilations & documents from available raw data unless unduly burdensome or oppressive

Person v. Farmers Insurance Group of Companies(1997), 52 Cal.App.4th 813 [Dr. holding records and refused to comply with subpoena duces tecum until attorney signed lien for fees; final narative report and billing records not prepared; Held: Dr. must compile and provide itemized statment if the raw data exits and the preparation of the compilation is not unduly burdensome or oppressive

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court denied production of a database "because it is unclear how a party could go about producing "a database," which ordinarily is a dynamic collection of data that changes over time. It denied without prejudice a request for access to the database in order to generate its own information or reports provided there was an "adequate showing of need, and with adequate procedural safeguards in place to minimize business disruption and to restrict disclosure of irrelevant or proprietary material

See also   Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913. Although the legal basis for the original motion to compel execution was not discussed and the deposition process was not used, the case was dismissed for refusal to comply with a court order requiring execution of an authorization required by hospitals to release medical records.

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc.(2002), 95 Cal.App.4th 1400 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery." Trial Court handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the trial court order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414  [Not an issue but the trial court ordered that "the reasonable cost to Defendants to review the copied files for irrelevant and privileged documents was to be borne by [plaintiff], subject to reallocation by the trial court."]

See comment re COST SHIFTING

ESI Note the unique cost shifting provisions included in the Electronic Discovery Act in 2009.
CCP 2031.060(e)
CCP 2031.310(f)
CCP 2031.280(e)


OBJECTIONS

See cases cited re Objections, waiver etc. in case outline on Interrogatories and other discovery outlines.

ESI  Objection as to form of production of ESI C.C.P. §2031.280(c) if one is specified in the demand
Must object as to the form of "each type of information" being requested

ESI  "SOURCE THAT IS NOT REASONABLY ACCESSIBLE" "BECAUSE OF UNDUE BURDEN OR EXPENSE"  and
Responding party will not search the source absent an agreement or court order.  C.C.P. §2031.210(d)
Responding party must identify each type or category
Making objection as to inaccessibility preserves all other objections
NOTE: Protective order alternative to objection.  C.C.P. §2031.060(c)
Burden of proof is on party making this objection  C.C.P. §2031.310(d)
If so, burden shifts to party seeking ESI to show good cause for production  C.C.P. §2031.310(e)
If so, production can be ordered subject to conditions including cost allocation C.C.P. §2031.310(f)
      and other limitations C.C.P. §2031.310(g)
      if specified conditions exist  C.C.P. §2031.310(g)(1)-(4)
Thereafter, all other objections must be resolved since they have been reserved  C.C.P. §2031.210(d)



BURDEN OF PROOF

Evid.Code §500.  Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

California Civil Discovery Practice, 4th Ed. 2006 C.E.B., §15.54 "In drafting the opposition papers, counsel should remember that the burden rests with the party objecting to discovery to justify its failure to respond." Citing Coy v. Superior Court which involved interrogatories
Id §6.124 "...the moving party makes a preliminary showing that the question or request for production was relevant....Thereafter, the burden of proof rests on a deponent who has refused or failed to answer ...or produce a document...to show that the refusal or failure was justified...."

Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355 at p. 379 "...there are several situations where the litigant starts the discovery process without prior court intervention. The burden is then on the party seeking to deny that right."

In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542 , 545 [Motion re document production granted. "Finally, this Court finds that BAC fails to support its claim of burden, making only a blanket objection without specifics sufficient to justify denying discovery. The objecting party has the burden to substantiate its objections. Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir.1984), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985). The litany of overly burdensome, oppressive, and irrelevant does not alone constitute a successful objection to a discovery request. Employers Commercial Union Insurance Company of America, et al. v. Browning-Ferris Industries of Kansas City, Inc., 1993 WL 210012 (D.Kan.1993); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292 (E.D.Pa.1980)."]

In re subpoena duces tecum to AOL, LLC. (E.D.VA.,2008) 2008 U.S. Dist. LEXIS 39349 ["When a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome. Vaughan Furniture Co. v. Featureline Mfg., Inc., 156 F.R.D. 123, 125 (M.D.N.C. 1994)."]


GENERAL OBJECTIONS IMPROPER 

See express wording and requirements of rules and statute; see comment in the Practice Points section

Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [C.C.P. 2031.210 et seq. provides clear rules for responding. Instead of following the rules, plaintiff filed three successive non-compliant responses consisting of geneneral objections and later objections to specific requests based on inter alia attorney client privilege. Apparently, there was no attempt to identify documents and privileges with particularity in compliance with C.C.P. 2031.241(b). Before a hearing by a discovery referee, plaintiff served a privilege log. The referee ruled the attorney-client and work product objections were waived as untimely. The referee denied a motion for relief from waiver. The trial court found the privileges were waived. The Appellate Court held that timely boilerplate and non-compliant objections were sufficient to prevent a waiver stating "while we recognize the use of "boiler plate" objections as were provided in this case may be sanctionable, the appropriate sanction is not a judicially imposed waiver of the attorney-client privilege." ]

Standon v. Superior Court (1990), 225 Cal.App.3d 898 [Motion to compel document production more than 45 days after the response denied as untimely. Court referred to
objection of "vague, ambiguous, and unintelligible" "...as a 'nuisance' objection, and not as an attempt to justify a complete failure to comply. Had Kim relied on this objection to the extent of refusing to produce any medical bills or expense documentation, it is beyond question that this would have been subject to sanction."]

Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court  408 F.3d 1142(9th Cir.2005). cert. den. 2005 WL 2493946 Oct 11, 2005    Trial court affirmed in holding boilerplate objection without identification of documents to be waiver of privilege as to the documents requested. A timely,boilerplate, privilege objection that was not accompanied by a "privilege log" identifying documents withheld was a waiver of the privilege and the district court order to produce all documents was upheld. The appellate court rejected a mechanistic "per se" waiver rule and suggested consideration of facts surrounding the discovery including the familiarity of the producing party with litigation and document production, the ultimate timing of document identification, and the magnitude of the document production. The court noted: "...one circuit has refused to issue a writ of mandamus to a trial court, where the latter had ruled that untimeliness had destroyed the attorney-client privilege, even though 'it does not seem seriously disputed that the privilege would have attached if the objection had been timely and adequately asserted.' Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1985) (per curiam). A survey of district court discovery rulings reveals a very mixed bag, running the gamut from a permissive approach where Rule 26(b)(5) is construed liberally and blanket objections are accepted, to a strict approach where waiver results from failure to meet the requirements of a more demanding construction of Rule 26(b)(5) within Rule 34's 30-day limit. In general, a strict per se waiver rule and a permissive toleration of boilerplate assertions of privilege both represent minority ends of the spectrum." Note that the decision was revised slightly from 403 F.3d on denial of the rehearing petition.

Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). The trial court noted the failure to respond to a document request in accord with the discovery rules necessitated granting the motion for further responses: "responses are too ambiguous to ... determine the extent to which [responding party] may be withholding responsive documents based on its other objections rather than asserting that no responsive documents exist. While ... responses were not "boilerplate" in the sense of containing only generalized objections of a sort that might be found in any case, Ferguson did repeat the same long paragraph of objections and explanations in all of its responses, regardless of the applicability of that recitation to the particular request."

Powerhouse Marks, L.L.C. v. Chi Hsin Impex Inc (E.D.Mich.2006) Copy, 2006 WL 83477  The court criticized the use of boilerplate general objections stating: "Defendant Wal-Mart has asserted perfunctory "general objections" to each Interrogatory, asserting nearly every ground for objecting to an Interrogatory ever available to any party with respect to each and every one of Plaintiffs' Interrogatories. These objections can be easily discarded by a plain reading of Rule 33(b) which requires that "[a]ll grounds for an objection to an interrogatory shall be stated with specificity."

Williams v. Taser Int'l, Inc.  (N.D.Ga 2007), 2007 U.S. Dist. LEXIS 40280
"To the extent that Plaintiffs wish to compel Taser to omit boilerplate objections from its answers to interrogatories and requests to produce, Plaintiffs' motion is granted. Even a cursory review of Taser's discovery responses in this case reveals that its answers to Plaintiffs' discovery requests are, almost without exception, qualified by boilerplate objections to the relevancy of the discovery sought, the undue burdens associated with its production, etc. While the Court appreciates Taser's desire to avoid waiving an otherwise legitimate objection by failing to assert it, such objections are improper under the Federal Rules. As this Court has previously explained,"[m]erely stating that a discovery request is vague or ambiguous, without specifically stating how it is so, is not a legitimate objection to discovery."[citations omitted] Rather, objections to discovery requests must be sufficiently plain and specific to allow the Court to understand precisely how the challenged discovery requests are alleged to be objectionable. ...What is more 'such non-specific objections operate to render the producing party the final arbiter of whether it has complied with its discovery obligations under [F.R.C.P.Rule 26] because the requesting party lacks sufficient information to understand either the scope of the objection, or to frame any argument as to why that objection is unfounded.The problems which flow from such non-specific objections to discovery requests are manifest in this case. Taser's constant inclusion of such boilerplate objections has unnecessarily clouded the discovery process and invited dispute and disagreement by needlessly sowing doubt about the exhaustiveness of Taser's production and responses. n3 This is especially true in a case where, as here, the information Plaintiffs require is in large part within Taser's sole custody or control, and yet, Taser has been minimally responsive to Plaintiffs' discovery requests. The Court is determined to see discovery in this case proceed in an orderly and expeditious manner, and will not consider any future objection to discovery requests which fails to comply with the Federal Rules of Civil Procedure. Accordingly, Taser should refrain from asserting boilerplate, non-specific objections to Plaintiffs' discovery requests.

IO Group, Inc. v. Veoh Networks, Inc.( D. 2007), 2007 U.S. Dist. LEXIS 31639 (April 13, 2007) General objections stricken as improper boilerplate.
Preliminarily, plaintiff seeks a blanket order overruling all of Veoh's stated objections -- whether asserted as "General Objections" or in response to specific requests -- on the ground that the objections are merely conclusory. Grounds for objection to discovery requests must be stated with specificity. [citing federal rules]
“Here, Veoh asserted a number of General Objections which it, in boilerplate fashion, purported to incorporate into its specific responses -- whether or not those objections were actually raised in response to a particular request. This practice obscures the extent to which Veoh is withholding information and does not satisfy the requirement for specificity under Fed.R. Civ. P. 34(b). Thus, any General Objections which Veoh only implicitly asserted by incorporation to a specific request are overruled.
“... this court has considered Veoh's objections asserted in response to the particular requests at issue; and, it finds that not
all of Veoh's objections are baseless. Accordingly, this court declines to issue a blanket order overruling all of Veoh's objections at the outset.

UNDUE BURDEN 

See other case outlines for specific cases
Certain objections are related but differ:
undue burden and harassment which must be quantified and supported by a factual showing by the objecting party ;
lack of particularity in request such that the responding party cannot determine what is being requested
Calcor v. Superior Court (1997), 53 Cal.App.4th 216  ["...motion for a protective order contending the subpoena was unreasonably burdensome and overly broad for service on a nonparty....  At page 223 the court noted:
"Because of the potential for promiscuous discovery imposing great burdens, even though ultimately the probative value of the discovered material may be questionable, trial judges must carefully weigh the cost, time, expense and disruption of normal business resulting from an order compelling the discovery against the probative value of the material which might be disclosed if the discovery is ordered. A carelessly drafted discovery order may result in cost and inconvenience far outweighing the potential usefulness of the material ordered to be produced. Because of the difficulty in drawing clear lines as to what is and what is not proper, this danger is particularly great with respect to orders requiring the production of materials.

In re subpoena duces tecum to AOL, LLC. (E.D.VA.,2008) 2008 U.S. Dist. LEXIS 39349 ["When a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome. Vaughan Furniture Co. v. Featureline Mfg., Inc., 156 F.R.D. 123, 125 (M.D.N.C. 1994)."]

DOCUMENT IDENTIFICATION [C.C.P. §2031.240(b) objection + identify with particularity the document and objection]

Volkswagen of America, Inc. v. Superior Court (Rusk) (2006) , 139 Cal.App.4th 1481  The court criticized the document response's lack of particularity of identification of withheld documents, despite a supplemental response, when the original was only objections; it suggested that production should be ordered when the request appears to contain some discoverable documents but the response is inadequate to identify and distinguish any that are not discoverable.

Wellpoint Health Networks v. Superior Court (1997), 59 Cal.App.4th 110, ["The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not in fact privileged."]

Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [inadequate or improper identification of documents is not waiver of privilege]

Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 [dictim;  case management order. "... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]

Banks v. Office of the Senate Sergeant-at-Arms & Doorkeeper, 226 F.R.D. 113 , 116 (D.D.C.2005) In awarding monetary sanctions for late filing of a privilege log instead of finding a waiver the court discussed a law review article and summarized the inconsistent existing federal law.

"...(citing John E. Tyler III, Analyzing New Protections for Intangible Work Product and Harmonizing That Protection with the Use of Privilege Logs, 64 Univ. Miss. Kan. City L.Rev., 743, 751-52 (1996)). But on analysis of the cases discussed by that author in fact indicates that federal courts have not hesitated to invoke the extreme sanction of waiver when a party fails to submit its privilege log in a timely manner, Fn.4. and one court even did so when the party did not produce the log simultaneously with the rest of its response to a request to produce documents. Fn.5 In other cases, involving differing sets of facts, courts have permitted privilege logs to be served after other developments in the case occurred. Fn6 One court even declined altogether to order a party to submit a privilege log when it was self-evident to that court that the discovery request was completely improper. Fn7.

4. First Sav. Bank v. First Bank Sys., Inc., No. CIV.A.95-4020, 1995 WL 250394 (D.Kan. March 30, 1995). See also Nat'l Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan.1994) (general allegation of privilege insufficient; if privilege is not specified and substantiated it may be lost); John Labatt Ltd. v. Molson Breweries, Nos. CIV.A.93-75004, 94-71540, 1995 WL 23603 (S.D.N.Y. Jan. 20, 1995) (failures to produce privilege log at hearing held on motion to compel and to bring contested documents to court for in camera justified granting of motion to compel, despite claim of privilege).
5. Rural Water Sys. Ins. Benefit Trust v. Group Ins. Adm'r, 160 F.R.D. 605 (D.Kan.1995)
6. Mader v. Motorola Inc., No. CIV.A.92-8089, 1994 WL 535125 (N.D.Ill. Sept.30, 1994); Hurley v. JARC Builders, Inc., 164 F.R.D. 39 (E.D.Pa.1995); In re Brand Name Prescription Drugs Antitrust Litig., No. CIV.A. 94-897, 1995 WL 613126 (N.D.Ill. Oct.17, 1995); Trzeciak v. Apple Computers, Inc., No. CIV.A. 94-1251, 1995 WL 20329 (S.D.N.Y. Jan.19, 1995).
7. Garner, Lovell & Stein P.C. v. Burnett, 911 S.W.2d 108 (Tex.App.1995).


Electronic Communications Privacy Act  18 U.S.C. §§ 2701-03 (2000)

In re subpoena duces tecum to AOL, LLC. (E.D.VA.,2008) 2008 U.S. Dist. LEXIS 39349. The Electronic Communications Privacy Act ("Privacy Act"), codified as 18 U.S.C. §§ 2701-03 (2000) prohibits the disclosure of a party's e-mails by an ISP when sought by civil subpoena by another party.
...the plain language of the Privacy Act prohibits AOL from producing the Rigsbys' e-mails, and the issuance of a civil discovery subpoena is not an exception to the provisions of the Privacy Act that would allow an internet service provider to disclose the communications at issue here.”
the Court holds that 'unauthorized private parties' and governmental entities are prohibited from using Rule 45 civil discovery subpoenas to circumvent the Privacy Act's protections.”
Theofel v. Farey-Jones (9th Cir. 2004), 359 F.3d 1066, 1071-72, 1077
Federal Trade Commission v. Netscape Communication Corp.,(N.D. Cal. 2000), 196 F.R.D. 559, 559, 561
O'Grady v. Superior Court (2006),139 Cal. App. 4th 1423, 44 Cal. Rptr. 3D 72, 76-77, 84, 86-87


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CASE OUTLINE


WAIVER OF OBJECTIONS [C.C.P. §§2031300(A); see also Evid. C. 912]

Written consent

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [employer agreement acknowledged employer owned home computer, that it could be monitored, that communications via it were not private, that it could only be used for business purposes, and that misuse was grounds for termination which was the issue in this wrongful discharge case]


Lack of timely objection [RD failure to claim privilege = consent to disclosure]

Deary v. Superior Court (Hendrick) (2001), 87 Cal.App.4th 1072, 1078 -79 ["These requirements [2025(m)(1) & 2031(l)] have been generally construed as meaning that if a party contends a demand for the production of documents is violative of a privilege, an objection on that ground, specifying the protected items and the particular privilege alleged to apply, must be included in the initial response to a production request or deposition question, or may be deemed waived. (See Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1140-1141 [84 Cal.Rptr.2d 350]; Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274 [69 Cal.Rptr.2d 112].)" However, the ambiguity of request and uncertainty that tax returns were requested nullified the need to make an objection at the outset and the court held that under the facts of the case that the objection had been timely raised."

Scottsdale Insurance Co. v. Superior Court (1997), 59 Cal. App.4th 263 [failure to include specific objection in initial response is waiver; court rejects argument that making any response defeats waiver]

Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [timely A/C objection though not properly made in accord with 2031 avoids waiver; boilerplate objection sanctionable]

Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.

Standish v. Superior Court (1999), 71 Cal.App.4th 1130, 1141 [waiver of trade secret by failure to assert but no waiver of attorney client or work product made in general objection boilerplate response]

Lack of verification of timely objection not waiver

Blue Ridge Ins. Co. v. Superior Court (1988), 202 Cal.App.3d 339, 345 [decided under prior law but analysis re current law]

Food 4 Less Supermarkets Inc. v. Superior Court (1995), 40 Cal.App.4th 651 [Mixed responses with late verification; trial court held no verification = no response = waiver; rev'd; objections need not be verified in a mixed response containing objection ]
Cf. Appleton [poorly reasoned dictum]

Improper or inadequate assertion not waiver [Cf failure to meet burden of proof to establish privilege on a motion to compel.]

Korea Data Systems Co.Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513,[General AC / WP objection w/o id of document preserves privilege Though sanctionable conduct]  Cf. Burlington Northern case where a waiver was upheld.

Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.

Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 [dictim;  case management order. "... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]

Standish v. Superior Court (1999), 71 Cal.App.4th 1130

People ex rel Lockyer v. Superior Court (2004), 122 Cal.App.4th1060, 1072 1075 Deficiencies in a timely response claiming privilege is not a waiver of the privilege.
"Cole points to deficiencies in the People's privilege log and asserts that because the People never produced a proper one, the court properly ordered any privileges not adequately stated therein to be waived. However, as detailed above, this argument is unavailing. First, deficient objections or claims of privilege are not grounds for waiver, so long as a party, such as the People here, made timely objections in their original response. Further, there is no obligation to produce a privilege log at all, unless ordered to do so by the court upon a motion by a party seeking such a document. No such motion was made, and no such order was entered. Second, even if the court had ordered the People to produce a privilege log, or to produce a more detailed one, and the People failed to do so, no waiver of privileges could be found. While the court would have other sanctions available to it in such a situation, a waiver of privileges was not authorized by statute.
"Cole's remedy at this point is to compel the People to produce a more detailed privilege log. Then, if the People fail to do so, or their response is inadequate, they may seek relief from the court pursuant to section 2031, subdivision (m). However, to be clear, even at that stage Cole could not seek a waiver of any privileges raised. Thus, the court erred as a matter of law in ordering the People to produce documents without regard to whether they were privileged and that in response to Cole's subpoenas they produce documents and witnesses without objection on the basis of privilege. We therefore grant the People's petition and order the court to set aside these orders."

TOP --CASES-- CONTENTS
San Francisco Discovery

CALIFORNIA DISCOVERY

RELIEF FROM WAIVER OF OBJECTIONS

Two requirements for relief perC.C.P. §2031.300(a):

(1) proper response per C.C.P. §2031.210-.280
(2) untimely response "was the result of mistake, inadvertence, or excusable neglectetc."
Scottsdale Ins. Co. v. Superior Court(1997), 59 Cal. App.4th 263

Tactical mistakes not basis for relief

Scottsdale Ins. Co. v. Superior Court(1997), 59 Cal. App.4th 263, [counsel raised blanket objections w/o reviewing documents or consulting with client and took positions contrary to clear language of statute; after losing, counsel discovered privileged documents]

C.C.P. §§473 relief for attorney fault not available

Scottsdale Insurance Co. v. Superior Court (1997), 59 Cal. App.4th 263 [§473 principles applied to similar relief provisions within the discovery act]

Zellerino v. Brown (1991), 235 Cal.App.3d 1097 [§473 relief from defective expert disclosure demand granted; relief not limited to that provided in discovery act]

CF Inadvertent disclosure as not being a waiver

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201[disclosure in good faith belief that law required it not a waiver; "An honest mistake of law, where the law is unsettled and debatable, both militates against a finding of waiver (citing B P Alaska) and offers a possible basis relief...."]

State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [No waiver by inadvertent disclosure; documents reviewed but overlooked by attorney& paralegal; not on privilege log; 273 pages produced with 3 boxes of previously produced documents; "obviously", "patently" and "plainly" privileged; B of P on party asserting inadvertence to demonstrate it; IF (1) attorney receives obviously documents and (2) they are obviously privileged and inadvertently disclosed, notify opponent and refrain from further examination; trial court awarded sanctions which were not upheld only because the appellate court felt the standards were not clear in California ]

Aerojet General Corp. v. Transport Indemnity Ins. (1993), 18 Cal.App.4th 996 [AC claimed in complex document case after inadvertent disclosure; underlying facts in document were discoverable; 128.5 sanctions sought for investigating & plugging leak: trial court granted, Ct.Ap. reversed on sanctions issue; dictum suggests innocent party can use document ]

O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal.App.4th 563 at p.577

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CASE OUTLINE


WAIVER OF DISCOVERY

Failure to move within 45 days of response [C.C.P. § 2031.310(c)]

"notice of this motion...given"

Sperber v. Robinson
(1994), 26 Cal.App.4th 736 [suggests motion must be "made" or "filed" w/in 45 days, CF statutory wording. Filing and dropping earlier and timely motion does not satisfy statute]

Sexton v. Superior Court
(1997), 58 Cal.App.4th 1403 [objection raised 1st at hearing is timely; court lacks jurisdiction except to deny motion as untimely; no power to extend]

Standon v. Superior Court (1990), 225 Cal.App.3d 898 [Motion to compel document production more than 45 days after the objection was served denied as untimely. Court referred to
objection of "vague, ambiguous, and unintelligible" "...as a 'nuisance' objection, and not as an attempt to justify a complete failure to comply. Had Kim relied on this objection to the extent of refusing to produce any medical bills or expense documentation, it is beyond question that this would have been subject to sanction."]

Cf. Crippen v. Superior Court(1984) 159 Cal.App.3d 254 [trial Court denied production; writ issued court of appeal declines to follow Vidal Sasoon re lack of trial court jurisdiction but facts in case may not be complete]

Vidal Sasoon v. Superior Court (1983), 147 Cal.App.3d 681

Deyo v. Kilbourne
(1978), 84 Cal.App.3d 771, 788

No bar to alternative discovery device

Carter v. Superior Court (1990), 218 Cal.App.3d 994 [ Waiver by failing to move within 45 days not bar to seeking same documents by deposition]

See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [Waiver not issue but corporation required to produce documents at P.M.K. deposition even though previously produced in discovery]

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PRODUCTION

Produce on date specified in demand  C.C.P.§2031.280(b)

Form of Production

C.C.P.§2031.280(a) Any documents demanded shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. C.C.P.§2031.280(e)If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.

ESI need only be produced in one form, absent court order or agreement C.C.P.§2031.280(d)(2)
ESI if no form specified produce in form  "ordinarily maintained" or "reasonably usable"   C.C.P.§2031.280(d)(1)


See Oklahoma ex rel. Edmondson (N.D. Okla. May 17, 2007), 2007 U.S. Dist. LEXIS 36308 which discusses the orderly form of production required for those produced as kept in the normal course of business and refers to several federal cases including Williams v. Tasser Int'l., Inc., 2006 U.S. Dist. LEXIS 47255, 2006 WL 1835437 (N.D. Ga. 2006).

Document dumps.

Kayne v. Grande Holdings Ltd. (2011) ,198 Cal.App.4th 1470  [2d dist. 9/2/11]  $74,809 sanctions to cover costs of reorganizing documents produced in disorderly manner. Following objections, agreement after motion filed , disorderly document dump, failure to produce and label categories, discovery sanctions in the amount of $74,809 were awarded  “...to pay the sums plaintiffs incurred to organize the documents, as a sanction for willful abuse of discovery procedure and failure to comply with sections 2023.010, 2031.280, and 2031.320.” The appellate court affirmed and held the award was not an abuse of discretion and that the motion was timely as a motion to compel compliance with the agreement reduced to a court order.
“In sum, plaintiffs incurred substantial costs in organizing the documents which Grande produced in contravention of the requirements of section 2031.280, subdivision (a), thereby employing a discovery method in such a manner as to cause undue burden and expense to plaintiffs. With respect to these 55,000 pages of documents, plaintiffs were not requesting further responses, but rather sanctions as provided in the discovery statutes. The motion to compel compliance was timely filed.”
The burden of proof is on the producing party to show it produced in accord with the manner prescribed in the CCP

Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202 [discussed in New Albertsons, Inc. v. Superior Court (Shanahan) (2008).sanctions imposed for series of discovery abuses including failure to produce "documents as they were kept in the ordinary course of business after being ordered to do so" and evading "discovery by producing an excessive volume of documents without proper itemization"


See federal cases below re "document dumps"

Electronic form  
See also outline on Discovery of  Electronic Data

Prior California C.C.P.§2031.280(b)  Note the statutory language was retained in the revised §2031.280 in 2009


"...as they are kept in the usual course of business, or
be organized and labeled to correspond with the categories in the demand."   [New §2031.280(a)]

"If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form."   [New §2031.280(e)]

Toshiba America Electronic Components, Inc., v. Superior Court (2004), 124 Cal. App. 4th 762. The requesting party must pay the costs of recovering e-mail and other usable information from computer backup tapes pursuant to the mandatory cost shifting provisions of CCP 2031(g)(1)[now 2031.280(b). The Court stated: “The clause is unequivocal. ... its plain language clearly states that if translation is necessary, the responding party must do it at the demanding party’s reasonable expense.” No objection or showing of undue burden is required. Recovery involved conversion tools for obsolete software and some tapes had deteriorated from age. The parties did not dispute the recovery and production at issue was covered by the statute. The court suggested trial court discretion on 2 issues: the applicability of former §2031(g)(1) now C.C.P.§2031.280(b) and the reasonableness of expenses.

“The trial court’s order was an abuse of discretion not because section 2031 (g)(1) necessarily requires Lexar to pay all of TAEC’s expenses in recovering data from its backup tapes, but because the trial court was never asked to decide whether and to what extent that subdivision applies to the production in dispute. An order compelling TAEC to produce all responsive documents contained in the tapes without also requiring Lexar to pay any of the expense involved in translating the tapes into usable form, is an abuse of discretion absent a finding that translation is not necessary or that section 2031 (g)(1) does not apply for some other reason.

The case was remanded for further proceedings to determine (1) whether and to what extent translation of data compilations was required and (2) what the reasonable costs might be that the requesting party must pay under the mandatory cost shifting provisions of  former C.C.P. §2031(g),  current  C.C.P.§2031.280(b)



National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency (S.D.N.Y. 2011), Usable ESI must be searchable and include metadata. Specific meta data identified.

Bergersen v. Shelter Mut. Ins. Co.  (D.Kan.2006, Slip Copy), 2006 WL 334675 Dictim re proper manner of document production though motion denied as untimely.

"Defendants have provided Plaintiff with three CDs containing a total of 7,253 documents which, according to Plaintiff, are not “kept in any perceivable sequential order.”... Plaintiff argues that this does not comply with Fed.R.Civ.P. 34(b), which requires a party producing documents for inspection to produce them “as they are kept in the usual course of business or ··· organize and label them to correspond with the categories in the request.” This provision was specifically designed to prevent parties from “deliberately ··· mix[ing] critical documents with others in the hope of obscuring significance.” See Advisory Committee Note for 1980 Amendment to Rule 34 (quoting Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association (1977)).
....a party who chooses the 34(b) option to produce documents as they are kept in the ordinary course of business bears the burden of showing that the documents were in fact produced in that manner. A mere assertion that they were so produced is not sufficient to carry that burden. In addition, merely categorizing the documents produced does not, without some further explanation, satisfy the requirement that they be produced as kept in the usual course of business.Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D.Kan.2005). Thus, the Court does not accept Defendants' assertion of their duty in this case.
It is clear that the documents produced by Defendants were not produced “as they are kept in the usual course of business.” Instead, at least some of the documents were kept as hard-copies, but were then scanned onto a CD for production. When this is done, a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file. Faced with problems such as this, some courts have required a producing party to label, organize or index documents being produced, if doing so is necessary to make the documents usable by the requesting party. [citation]  Parties producing documents electronically often enter into agreed orders concerning the protocol to be followed. [citation] Those agreements may contain provisions for (1) keying which documents were produced from electronic files and which were scanned from hard-copy files, (2) keeping multi-page documents as a unit, (3) providing source information which identifies, where possible, the custodian of a particular document or set of documents, etc. ...."

Zakre v. Norddeutsche Landesbank Girozentrale (2004),  2004 WL 764895 (S.D.N.Y No. 03 Civ. 0257(RWS)..4/9 2004) Production of two CD's containing 6000 emails that is text-searchable by words or phrases but lacks an index satisfies FRCP Rule 34 (b) requirements for the manner of  production. The producing party had searched for privilege but not responsiveness. No index, labeling, or production by category was required. See In Re Lorazepam & Clorazepate Antitrust Litigation   [MDL No. 1290] (D.D.C. 1/16/04)
The case was distinguished in Pass & Seymour in that e-mail provides more information for access and content than other documents.

Pass & Seymour, Inc. v. Hubbell Inc.(N.D.N.Y. Sept. 12, 2008), 2008 WL 4240490 Applying basic discovery concepts and case law, the court held production of ESI as maintained in the ordinary course of business requires some meaningful access to the documents beyond the ability to perform text searches and does not authorize the proverbial document dump.
Plaintiff had produced “in digital format ... 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff's business.”
"Since plaintiff has neither carried its burden of proving that the documents now at issue were produced in the manner in which they are maintained, nor has it otherwise produced the information necessary to make the production useful to the defendant, I will grant defendant's motion, in part, and direct that plaintiff provide the defendant with further information regarding its document production."
"...plaintiff shall produce to defendant an index of the documents produced, revealing the custodian, location and a general description of the filing system under which each document was maintained in the ordinary course of plaintiff's business, further including an indication of whether the document is kept in digital format, hard copy, or both."

In re Honeywell Intern., Inc. Securities Litigation
(S.D.N.Y. 2003),
230 F.R.D. 293,  2003 U.S. Dist. LEXIS 20602 Produce in electronic form if that is how documents are kept in the normal course of business. Non-party production of accounting work papers in class action securities fraud case. Plaintiffs sought documents in more usable form after hard copy production. This Court finds that PWC's prior production of its workpapers is insufficient because they were not produced as kept in the usual course of business.” ... “PWC is obligated to produce its workpapers in their electronic form.”.... “...this Court directs PWC to produce electronically its workpapers by either: (1) producing a copy of its workpapers on CD-ROMs that could be viewed using commercially-available software; or (2) producing a copy of its workpapers on CD-ROMs that could be viewed using PWC's proprietary software, as well as producing the proprietary software to the extent it is necessary to view the workpapers.”PWC's main argument...is that electronic copies of its workpapers are only accessible with the aid of its proprietary software, and therefore any production of the electronic files would reveal PWC's trade secrets.” The court rejected the trade secret argument because there was a confidentiality order and plaintiff was not a competitor. $30,000 cost shifting was rejected because the producer was given a cheaper alternative and because the producer could have avoided additional costs by proper production initially. A request to convert to PDF was not ruled upon.

Williams v. Sprint/United Mamagement Co.,   230 F.R.D. 640, 2005 WL 2401626 (D.Kan.2005. ) discovery of metadata
The Court ordered Defendant to "produce the electronic spreadsheets in the manner in which they were maintained, which includes the spreadsheets' metadata." The court denied sanctions for the "scrubbing" of metadata and the locking of certain data on electronic spreadsheets prior to production because "the production of metadata is a new and largely undeveloped area of the law." The Court also held: "Any assertion of attorney-client privilege or work product protection with regard to the metadata contained within these Excel spreadsheets, other than the metadata directly corresponding to the adverse impact analyses and social security number information, is deemed waived due to Defendant's failure to object and produce a privilege log regarding the metadata." In the decision, the court discusses the nature of metadata, alternative approaches to discovery and general guidelines.

Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 2006 WL 524708 (N.D.Cal. 2006) "...Nanometrics offers no reason why the documents should not be produced in their native format. Indeed... it has agreed to do so. ....if it has not already done so, it must produce the documents in their native file format, with original metadata. See In re Verisign, 2004 WL 2445243 at 1 (N.D.Cal.2004)(upholding discovery orders requiring production of documents in native format with metadata as not clearly erroneous: " '[t]he electronic version must include metadata as well as be searchable')". See also In re Honeywell International, Inc., 230 F.R.D. 293, 296 (S.D.N.Y.2003).

Good Cause [2031.310(b)(1)]: Burden of Proof on party seeking production to show good cause.
Note e-discovery rules requiring additional "good cause" to overcome showing that documents are not reasonably accessible.

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Citing Glenfed below in dictum the court stated: "unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact specific showing of relevance"]

Kirkland v. Superior Court (2002), 95 Cal.App.4th 92, at p.98 115 Cal.Rptr.2d 279 [dictim summarizing factors in discovery: "Third, ample good cause for the production of the SEC documents has been shown. Code Civ. Proc. § 2031, subds. (l), (m); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) Discovery, ¶¶ 8:1495 to 8:1495.10, pp. 8H-24 to 8H-26 [absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].)"

Calcor v. Superior Court (1997) [Specific facts required and attorney argument insufficient to show relevancy and good cause]

City & County of San Francisco v. Superior Court (1993), 21 Cal.App.4th 1031 [mere desire for info insufficient; atty. Declarations regarding investigation by OCC of complaint and witness statements that was subject of action + in camera review of documents by trial court insufficient to establish good cause]

Glenfed Development Corp. v. Superior Court(1997), 53 Cal.App.4th 1113
[Claims manual discoverable on coverage issue; absent a privilege issue, good cause is shown by fact-specific showing of relevance ]

Nelson v. Superior Court(1986), 184 Cal. App.3d 444 [no showing by declaration]

Hill v. Superior Court [good cause apparent from nature of material sought; "Manifestly, it would be of help in preparing a defense"]

Cash v. Superior Court [common sense supported by affidavit that party did not remember details of conversation that lasted over an hour]

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal. App. 4th 1400;116 Cal. Rptr. 2d 65 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery." trial court handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the trial court order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414  [Not an issue but the trial court ordered that "the reasonable cost to Defendants to review the copied files for irrelevant and privileged documents was to be borne by [plaintiff], subject to reallocation by the trial court."]

Toshiba America Electronic Components, Inc., v. Superior Court (2004), 124 Cal. App. 4th 762. The appellate court recognized that costs may be shifted as part of the normal discovery process.  However, it noted that, when certain discovery of electronic data is involved, the special provisions of C.C.P. §2031.280(b) may apply to mandate cost shifting of that discovery covered by the statute and to the extent such costs are "reasonable". 

TOP--- CASES--- CONTENTS
San Francisco Discovery

CALIFORNIA DISCOVERY

PROTECTIVE ORDERS

Procedure

Standish v. Superior Court (1999), 71 Cal.App.4th 1130 [protective order can be sought and obtained in opposition to motion to compel without a separate motion for a protective order; party should not have power to designate protected documents without provisions for court review and determination]

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Protective order after privacy objection overruled authorized as part of writ reversing trial court denial of discovery]


Timing

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Protective order after privacy objection overruled authorized as part of writ reversing trial court denial of discovery]

Slagle v. Superior Court
(1989) 211 Cal.App.3d 1309 [Prior to production; objection that motion was brought after date set in the subpoena termed "frivolous" by appellate court; time specifications in  §1985.3 not controlling]

Standish v. Superior Court (1999), 71 Cal.App.4th 1130 [Protective order to limit dissemination to others sought after production to party ]


Personal information on home computer

TBG Insurance Services Corp. v. Superior Court (2002), 96 Cal.App.4th 443 [Computer owned by employer and subject to agreement re use for business, subject to monitoring;  misuse grounds for termination]


Confidential business information

Standish v. Superior Court (1999), 71 Cal.App.4th 1130 [Trade secret waived by failure to assert timely; but, protective order limiting dissemination could be sought in opposition to a motion to compel production without a separate motion

Elmore v. Superior Court (1967) 255 Cal.App.2d 635, 639.
(". . . business interests can and should be protected by an appropriate protective order carefully limiting the people who are permitted to inspect the documents." customer lists.)

People v. Superior Court (1967) 248 Cal.App.2d 276, 280.[Sealing customer list reversed for failure to show good cause.]

Raymond Handling Concepts Corp. v. Superior Court (1995), 39 Cal.App.4th 584 [ not abuse of discretion to allow Plt. to share with other plaintiffs in similar pending litigation so long as they agree to be bound and sign off on protective order; court noted economic benefits of shraring information in avoiding unnecessary duplicative discovery]

Preservation of Evidence

See also:
Sanctions Outline
California Spoliation
Comment on Preservation and Spoliation
Injunction for return of documents taken without consent

Comment: At least two appellate decisions have suggested that an injunction or bond is required to preserve evidence and that a protective order without bond may not be the appropriate means of preserving evidence. In the Dodge Warren case, the court upheld an injuction and stated that the preservation order pursuant to C.C.P. §2019 was not available as an alternative. The decision does not discuss the need for an undertaking. The case can be read to base the order on the inherent power of the court (the federal approach) rather than the injuction provisions of the C.C.P.  In Northpoint  the trial court had issued a preservation order and the writ issued to vacate the order or require a bond. Thus, the appellate courts appear to be split: Dodge Warren requires an injunction or order based on inherent power and holds that a protective order pursuant to C.C.P. §2019 is not an alternative; Northpoint appears to permits a protective order so long as it is  supported by a bond. Other jurisdictions use the protective order remedy without requiring a bond.  In Capricorn Power Company, Inc. v. Siemens Westinghouse Power Corporation (W.D. Pa.2004) 220 F.R.D. 429, the court noted the injunction standards did not apply, that courts commonly issued preservation orders, that there was no definitive standard or law  and that the court should formulate an order under appropriate circumstances of demonstrated need. It suggested a 3 part balancing test: demonstrated need; irreparable harm; burden of preservation.  See also Treppel v. Biovail Corp.    233 F.R.D. 363 , 2006 WL 278170  (S.D.N.Y. 2006).

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414
Issuance of preliminary injunction to preserve electronic data affirmed; no abuse of discretion; departing employees copied documents onto disc for later use in new business; Plaintiff had already served formal request for the same documents; order "prohibited Defendants from destroying, deleting or secreting from discovery any of their electronic storage media and required them "to allow a court-appointed expert to copy [documents], including computer hard drives and discs, to recover lost or deleted files and to perform automated searches of that evidence under guidelines agreed to by the parties or established by the court."; in addition the trial court order provided:

"media would be copied in Defendants' presence and after working hours so as to not interrupt their ability to conduct business.
No damage to or loss of information would result from the copying.
The copied material would be unavailable to anyone except upon agreement of the parties or order of the court. Thus, concerns over privacy and privilege were minimized to the point of nonexistence.
Further, the reasonable cost to Defendants to review the copied files for irrelevant and privileged documents was to be borne by Dodge, subject to reallocation by the trial court."

Northpoint Homeowners Assn v. Superior Court (Arutunian/Kinney & Associates) (1979) 95 Cal.App.3d 241 , 157 Cal.Rptr. 42. A property owner "alleged that the root systems of plants interfere with the underground utility system." The Court issued a protective order pursuant to C.C.P.§2019 prohibiting the property owner from destroying the tress causing damages. "... petitioner contends that respondent's order 'is, in effect, an injunction and without an undertaking the order is void.' This contention is sound."  The appellate court held: "A writ will issue commanding respondent court to vacate its order or require real party in interest to furnish an undertaking."
Note that the court held that the protective order issued without bond was improper and allowed the court to correct the problem by requring a bond.


In re Marriage of Van Hook (1983), 147 Cal.App.3d 970 [Family law preliminary injunction against creditor requires bond]

Swartzman v. Superior Court(1964), 231 Cal.App.2d 195 [protective order preventing discovery of expert]

First Amendment issues when restricting speech and dissemination of information

Westinghouse Electric Corp. v. Newman & Holtzinger(1995), 39 Cal.App.4th 1194

Coalition Against Police Abuse v. Superior Court (1985), 170 Cal.App.3d 888

In re Marriage of Candiotti (1995), 34 Cal.App.4th 718 [only proper to restrict dissemination of information gained through discovery; not information independently acquired]

Enforcement

Contempt & Sanctions
Westinghouse Electric Corp. v. Newman & Holtzinger(1995), 39 Cal.App.4th 1194 [agreements merged into trial court order enforceable by contempt and other sanctions; no private enforcement of original contract since it is extinguished when incorporated into court order

Lawsuit for damages etc.
Westinghouse Electric Corp. v. Newman & Holtzinger(1995), 39 Cal.App.4th 1194 [no private enforcement of original contract since it is extinguished when incorporated into court order; violation of discovery order is not a tort; demurrer sustained w/o leave]

Retention of jurisdiction

Coalition Against Police Abuse v. Superior Court(1985), 170 Cal.App.3d 888 [retention of jurisdiction allowed court to order return of documents after case settled even though order did not provide for disposition of documents]

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc.(2002), 95 Cal. App. 4th 1400;116 Cal. Rptr. 2d 65 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery." Trial court Handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the trial court order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order.]

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414  [Not an issue but the trial court ordered that "the reasonable cost to Defendants to review the copied files for irrelevant and privileged documents was to be borne by [plaintiff], subject to reallocation by the trial court."]

TOP--- CASES--- CONTENTS

CASE OUTLINE

COST SHIFTING   Note changes in special e-discovery rules effective July 2009

See cost shifting article in pdf

Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355,p.380 "In those situations wherein the only valid objection to disclosure is that it entails an undue burden on the other party, the trial court should give consideration to various alternatives provided in the statute. Requiring such party to pay the costs of disclosure is not the only such method.
[56 Cal.2d at p.382]"Certainly, in some cases, consideration should be given to the purpose of the information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.

West Pico Furniture Co. v. Superior Court (1961), 56 Cal.2d 407, 417-418.

Toshiba America Electronic Components, Inc. v. Superior Court
(2004), 124 Cal. App. 4th 762, 21 Cal. Rptr. 3d 532  ["The trial court always has discretion to condition the production of documents upon "specified terms and conditions," which would include the discretion to shift costs in an appropriate case. (§2031, Subd. (f)(4)"
]

Stony Brook I Homeowners Ass'n. v. Superior Court (Diehl) (2000), 84 Cal.App.4th 691 , 101 Cal.Rptr.2d 67 [Expert required to provide bias information re % of cases for Plt./Def. and total compensation was given the option to hire persons to gather information at the expense of the party requesting it. Although cost shifting was not an express issue decided in the case, the was the appellate court's response to a burdensome objection.]

San Diego Unified Port Dist. v. Douglas Barnhart Inc.(2002), 95 Cal. App. 4th 1400;116 Cal. Rptr. 2d 65 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery." Trial court Handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the trial court order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order.]

Dodge Warren & Peters Ins. Serv. v. Riley (2003), 105 Cal.App.4th 1414  [Not an issue but the trial court ordered that "the reasonable cost to Defendants to review the copied files for irrelevant and privileged documents was to be borne by [plaintiff], subject to reallocation by the trial court."]

Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002)

Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) aka Zubulake I


COST SHIFTING FOR E-DATA

C.C.P. §2031.280.(b) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.

Toshiba America Electronic Components, Inc. v. Superior Court (2004), 124 Cal. App. 4th 762, 21 Cal. Rptr. 3d 532 [Cost shifting is mandatory if the the statute applies but the court must determine if it applies and the "reasonable amount".

Note proposed changes in special e-discovery rules

  DeGeer v. Gillis (N.D. Ill.Dec.8,2010)  In derterming a cost shifting motion, Judge Nolan found the most significant factor to be the  parties' efforts to confer to resolve issues. She decided both failed to do so and split future ESI discovery costs between a non-party deponent and the subpoenaing party. The court noted “significant “ cost should be shifted pursuant to Rule 45 but found the costs were not significant; it identified factors recognized to be considered in cost shifting and found none relevant in this case.The trial court concluded by stating:
“This case demonstrates the importance of candid, meaningful discussion of ESI at the outset of the case, including discovery of ESI from non-parties. Had that been done, the parties should have been able to avoid the issuance of multiple subpoenas to Huron. After service of Defendants' subpoena, Huron and Defendants should have collaborated on the use of particular search terms and the data custodians to be searched in advance of Huron's searches. Counsel are ordered to confer in person (not via email, letters, or phone) to establish reasonable limits on the scope of Huron's future ESI production, including restricting the searches to certain key data custodians and agreeing on a narrow list of search terms and date ranges. Counsel are on notice that going forward the Court expects them to genuinely confer in good faith and make reasonable efforts to work together and compromise on discovery issues whenever possible.”
Factors to consider in cost shifting:
“Cost-shifting is not to be "considered in every case involving the discovery of electronic data, which in-today's world-includes virtually all cases. . . . The Supreme Court has instructed that `the presumption is that the responding party must bear the expense of complying with discovery requests . . .' Any principled approach to electronic evidence must respect this presumption." Barrera v. Boughton, 2010 WL 3926070, at *3 (D. Conn. Sept. 30, 2010) (quoting Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D. N.Y. 2003)). In the subpoena context, cost-shifting should occur when an order requiring compliance subjects a non-party to "significant expense." See Rule 45(c)(2) (stating that an order compelling production "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance."). Courts have considered three equitable factors when considering cost-shifting and non-parties: (1) whether the nonparty has an interest in the outcome of the case; (2) whether the nonparty can more readily bear its costs than the requesting party; and (3) whether the litigation is of public importance. Sound Security, Inc. v. Sonitrol Corp., 2009 WL 1835653, at * (W.D. Wash. June 26, 2009); The Dow Chemical Co. v. Reinhard, 2008 WL 1968302, at *1 (S.D. N.Y. April 29, 2008). The Sedona Commentary outlines best practices regarding the acquisition of information from non-parties, including the following factors to be considered in connection with cost-shifting discussions: (a) the scope of the request; (b) the invasiveness of the request; (c) the need to separate privileged material; (d) the non-party's interest in the litigation; (e) whether the party seeking production of documents ultimately prevails; (f) the relative resources of the party and the nonparty; (g) the reasonableness of the costs sought; and (h) the public importance of the litigation."

SANCTIONS

See Sanctions Outline
See Spoliation topic in the Sanctions Outline
California Spoliation
See comment on Preservation and Spoliation

Appropriate to failure to provide discovery

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [preclusion of testimony or defenses denied when such a remedy was excessive and no violation of prior order]

Puritan Ins. Co. v. Superior Court (1985), [Expert's inability to produce object per court order justified preclusion of object but not preclusion of photo of object or testimony based on photo]

R & R Sails Inc. v. Ins. Co. of Pa.(S.D. Cal. 2008), 2008 WL 2232640    Sanctions for failure of a claims examiner to search for and produce electronic notes in database in an insurance breach of contract case. The Court ordered payment within 30 days of $39,914.68 [Cf. $67,154.72 requested and itemized] as reasonable expenses incurred due to the failure to conduct a reasonable investigation and produce electronic records from a data base. Sanctions were mandated since the failure to produce electronic notes was not “substantially justified” because the claims examiner “failed to recognize that the ... database that he entered notes into contained the 'daily activity logs or telephone records' that Plaintiff had been requesting.”
The Court also precluded evidence “Based on Defendant's past failure to timely produce electronically- stored information, and Plaintiff's concern that additional responsive electronically-stored information may be in Defendant's possession.

Prohibition on sanctions for ESI lost etc due to routine, good faith operation of systiem if duty to preserve is not violated

C.C.P. §2031.060(i)
C.C.P. §2031.310(j)
The statutes provide that they do not affect any duty to preserve ESI


RECOVERY OF DOCUMENTS IMPROPERLY OBTAINED OR RETAINED

Pillsbury Madison & Sutro v. Schectman(1997), 55 Cal.App.4th 1279 [Documents improperly taken by potential employee-plaintiffs recoverable via writ of possession, injunction or court's inherent authority to administer resolution of disputes; only injunction challenged & upheld but court of appeal volunteered to rely on inherent authority]

Conn v. Superior Court (1987), 196 Cal.App.3d 774 [Absent formal discovery or consent, employee has no right to documents obtained through employment relationship & trial court can order return; can keep documents of personal nature properly obtained]

Camp v. Jeffers, Mangel, Butler & Marmaro (1995), 35 Cal.App.4th 620

See also cases regarding duty to return privileged documents

Rico v. Mitsubishi Motors Corp. (2004), 116 Cal. App. 4th 51;2004 Cal. App. LEXIS 219

State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644

Aerojet General Corp. v. Transport Indemnity Ins. (1993), 18 Cal.App.4th 996

RETURN OF PRIVILEGED DOCUMENTS
INADVERTENTLY PRODUCED

In the Rico case, the Supreme Court confirmed certain ethical obligation which included procedures for resolving privilege, work product and other issues for nondisclosure of documents.
Shortly thereafter, the Judicial Council proposed legislation establishing procedures for a party to reclaim attorney -client privileged and work product information applicable only to ESI.
There are significant differences between the two rules as set forth in the comparison table below  See also  PDF version

Rico v. Mitsubishi Motors
(2007), 42 Cal.4th 807

C.C.P. §2031.285

ESI Statutory Rule

Ethical duty applies to lawyer

Statutory duty applies to parties etc.

Applies to all privileges, work product, and confidential information  “or any other similar doctrine that would preclude discovery based on the confidential nature of the document.”

Applies to claims of privileged or work product

Recipient duty to refrain from using and notify producing party

Duty applies upon receipt of materials that
          “obviously appears” privileged
          reasonably apparent it was  inadvertently produced

Party asserting claim notifies recipient

Notice of claim & basis for claim

Refrain from exam except to determine possibly privileged nature

Recipient sequesters information and
retrieves from other persons if previously disclosed

Use or disclosure precluded until issue resolved


Recipient returns info or presents to court under seal

Parties resolve or resort to court for decision

Recipient makes motion w/in 30 days

of claim receipt and deposit into court


Rico v. Mitsubishi Motors Corp. (2004), 116 Cal. App. 4th 51;2004 Cal. App. LEXIS 219
Case follows State Compensation and narrowly construes Aeorojet.  A document,  essentially considered to be clearly attorney notes and protected by absolute work product,  was obtained and used by opposing counsel. Both opposing counsel using the protected document and his expert were disqualified.  At p.24. of the slip opinion the court stated: "State Fund provided the decisional authority that was lacking in Aerojet. For cases following State Fund, there is an ethical duty immediately to disclose inadvertently received privileged information. More precisely, an attorney who inadvertently receives plainly privileged documents must refrain from examining the materials any more than is necessary to determine that they are privileged, and must immediately notify the sender, who may not necessarily be the opposing party, that he is in possession of potentially privileged documents." 
The trial court had found that “...counsel knew it was a confidential work product document and violated his ethical duty by failing to notify opposing counsel and using the document.”

State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [No waiver by inadvertent disclosure; documents reviewed but overlooked by attorney& paralegal; not on privilege log; 273 pages produced with 3 boxes of previously produced documents; "obviously", "patently" and "plainly" privileged; B of P on party asserting inadvertence to demonstrate it; IF (1) attorney receives documents and (2) they are obviously privileged and inadvertently disclosed, notify opponent and refrain from further examination; trial court awarded sanctions which were not upheld only because the appellate court felt the standards were not clear in California.]

Aerojet General Corp. v. Transport Indemnity Ins. (1993), 18 Cal.App.4th 996 [AC claimed in complex document case after inadvertent disclosure; underlying facts in document were discoverable; 128.5 sanctions sought for investigating & plugging leak: trial court granted;, Ct.Ap. rev'd on sanctions issue; dictum suggests innocent party can use document ]


ALTERNATIVES TO FORMAL DISCOVERY

Pullin v. Superior Court (2000), 81 Cal.App.4th 1161 [Evidence obtained in any lawful manner, even from the opposing party, without using formal discovery, may be introduced at trial. Formal discovery is permissive and evidence is not inadmissible because obtained by investigation rather than formal discovery.]

CASE OUTLINE

TOP CASES CONTENTS

San Francisco Discovery

CALIFORNIA DISCOVERY

DEPOSITION ALTERNATIVE
Carter v. Superior Court (1990), 218 Cal.App.3d 994 [ Waiver by failing to move within 45 days not bar to seeking same documents by deposition]

See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [Waiver not issue but corporation required to produce documents at P.M.K. deposition even though previously produced in discovery]

CCP 1985.8 re subpoena of electronically stored information