Court Declines to Make the Dumbest Rule in the Discovery Act Even Dumber

Pollock v. Superior Court, No. B321229 (D2d1 Jul. 31, 2023)

Back in 2019, the Legislature amended Code of Civil Procedure § 2031.280 to include a requirement that a party producing documents must identify the specific demand number they are responsive to. Which perhaps makes sense if you are the kind of lawyer who handles cases where the total amount of discovery is a couple hundred pages. But in modern complex litigation with substantial e-discovery—where parties propound scores of RFPs and document discovery can easily run to the hundreds of thousands or even millions of pages—it’s completely insane. Fortunately, there’s sort of an unspoken detente in biglaw world that nobody is going to follow this rule. (If someone tried to make me, I’d move for a protective order.)

Without waiting for any RFPs, Plaintiffs’ Counsel in this dependent adult elder abuse case unilaterally produced about 1,500 pages of stuff. The Bates numbers lined up to her various clients. She didn’t identify which RFPs the files were responsive for the obvious reason that no RFPs had been propounded yet. Defendant eventually got around to that and subsequently filed a motion to compel on the ground that Plaintiffs’ responses didn’t identify what documents were responsive to what requests. The motion was pending for a long time. And during the interregnum, Plaintiffs lawyer produced a chart lining up the documents with the RFPs. That, apparently, was still not good enough. The trial court ultimately granted the motion to compel and issued a $910 sanction against one plaintiff and Counsel for the trouble. Plaintiff took a writ.

The Court of Appeal sensibly notes that there is a difference between the written response to a document demand and an actual production of documents. Often they don’t even happen on the same date. (§ 2031.280(b) says they are supposed to unless there’s an objection to the date. But objections are pretty cheap to make.) The form and content of the response is governed by §§ 2031.210-.270. The production is governed by § 2031.280. The requirement to identify RFPs to which produced documents are responsive is in the latter. So there’s no requirement that the identification be set out in the responses.

Writ granted.