Have you ever had a situation where the opposing side has responded to each of your document production requests with the response?
All responsive documents within the custody and control of responding party will be produced.
and then they dump thousands of documents on you with no rhyme or reason as to how they are organized.
You then diligently send your meet and confer letter stating that the documents are so disorganized that you “can’t make heads or tails as to which documents are responsive to which request.” Opposing counsel responds saying that the document production was in compliance with the code as the documents were produced “as they are kept in the usual course of business” and they will neither modify their response nor the production. So what do you do?
Code of Civil Procedure section 2031.280(a) states:
(a) Any documents produced in response to a demand for inspection, copying, testing, or sampling 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.
Though, opposing counsel claims that the documents are in compliance as they were produced in the“as they are kept in the usual course of business” Case law and the treatise Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2016) supports Plaintiff’s position. At §8:1471 of the treatise titled “ What Constitutes Compliance” the Practice Pointer states that this tactic:
…can’t be used to evade discovery, however. For example, a responding party attempts to discourage your inspection by producing a truck loaded with files. When you protest that these go far beyond your demand, opposing counsel claims, “Sorry, but this is the way my client keeps files in the ordinary course of business.
Your remedy in such a case is to seek a court order requiring the responding party to label and sort the files to correspond to the categories demanded. I.,e., the responding party should not be permitted to evade discovery by providing too much!
In fact, sanctions may be assessed for production of documents that are in complete disorder if the court finds that the producing party is responsible for the disordered state! [Kayne v. The Grande Holdings Limited (2011) 198 Cal. App. 4 th 1476, 130 CR3d 751, 755–producing party ordered to pay more than $74,000 of costs incurred by opposing party to organize documents.]
Many cases rise and fall on the supporting documents of a party’s claims and defenses. Make sure you get all the documents responsive to each of your requests so there are no surprises at trial.