RPD Meet and Confer Letter Generator

Below are common deficiencies found in responses to Requests for Production of Documents, and appropriate citations to the requirements of the code of civil procedure. Click the bottom text to copy to ClipBoard.

“The party to whom a demand …has been directed shall respond separately to each item or category of item…” (CCP § 2031.210(a).)

Each response must contain “A statement that the party will comply with the particular demand… by the date set for the inspection…” (CCP § 2031.210(a)(1).)

If a party cannot respond, they must state that he/she “lacks the ability to comply with the demand for inspection…of a particular item or category of item.” (CCP § 2031.210(a)(2).)

A party must “respond separately to each item or category of item” … [with ] “an objection to the particular demand for inspection….” (CCP § 2031.210(a)(3).)

A party must provide a Statement of Compliance in full or in part by affirming that it “will comply with [this] particular demand”… “either in whole or in part, and that all documents . . . in the demanded category that are in the possession, custody, or control of [Defendant] and to which no objection is being made will be included in the production.” (CCP § 2031.220.)

A party must “affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand,” to support it alleged “an inability to comply.” (CCP § 2031.230.)

When claiming “an inability to comply” with a document demand, a party must specify why – e.g. the responsive documents “never existed, has been destroyed, has been lost, misplaced, stolen, or has never been, or is no longer, in Defendant’s possession, custody, or control….” (CCP § 2031.230.)

When a request is partly objected to, the responding party must include a “statement of compliance” with respect to the remaining responsive documents. (CCP § 2031.240(a).)

A party must “identify with particularity any document… falling within any category of item in the demand to which an objection is being made.” (CCP § 2031.240(b)(1).)

A party must set forth “clearly the extent of, and the specific grounds for the objection.” (CCP § 2031.240(b)(2).)

A party asserting “an objection based on a claim of privilege” must state “the particular privilege invoked.” (CCP § 2031.240(b)(2).)

An objection based on work product “shall be expressly asserted.” (CCP § 2031.240(b)(2).)

When objecting based on work product, a party must provide “sufficient factual information for other parties to evaluate the merits of that claim including, if necessary, a privilege log.” (CCP § 2031.240(c)(1).)

An objection based on work product “shall be expressly asserted.” (CCP § 2031.240(b)(2).) When objecting based on work product, a party must provide “sufficient factual information for other parties to evaluate the merits of that claim including, if necessary, a privilege log.” (CCP § 2031.240(c)(1).)

All responses shall be “under oath unless the response contains only objections.” (CCP § 2031.250(a).)

Any responsive documents or category of documents “…shall be identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).)

Vague references to previously produced documents violates the requirement that any responsive documents or category of documents “…shall be identified with the specific request number to which the documents respond.” (CCP § 2031.280(a).)

“The documents shall be produced on the date specified in the demand…, unless an objection has been made to that date. If the date for inspection has been extended pursuant to Section 2031.270, the documents shall be produced on the date agreed to …”(CCP § 2031.280(b).)

Objecting to the production of some document(s) without identifying them violates CCP § 2031.240(b)(1). Also, this violates CCP § 2031.240 (c)(1) since it asserts a privilege without providing “sufficient factual information for [the asking party] to evaluate the merits of that claim…”

There is no statutory authority allowing the assertion of a privilege to prevent a future wavier of an unidentified privilege to unknown or non-existent documents. In Bihun v. AT&T Info. Systems, Inc. (1993) 13 Cal.App.4th 976, the court at p. 991 at fn. 5 made clear that an attorney’s assertion of a privilege, privacy or objection to the production of a non-existent document was made “in bad faith” and “in violation of the ethical duty of an attorney ‘[t]o employ … such means only as are consistent with truth.” [CC § 128.5; B&P Code § 6068(d).

It is not permissible to claim unidentified privilege(s) for unidentified and/or unknown document(s). Doing so violates CCP § 2031.240(b)(2) since that response fails to state the particular privilege invoked. Objecting to the production of some document(s) without identifying them violates CCP § 2031.240(b)(1). Also, this violates CCP § 2031.240 (c)(1) since it asserts a privilege without providing “sufficient factual information for [the asking party] to evaluate the merits of that claim…”There is no statutory authority allowing the assertion of a privilege to prevent a future wavier of an unidentified privilege to unknown or non-existent documents. In Bihun v. AT&T Info. Systems, Inc. (1993) 13 Cal.App.4th 976, the court at p. 991 at fn. 5 made clear that an attorney’s assertion of a privilege, privacy or objection to the production of a non-existent document was made “in bad faith” and “in violation of the ethical duty of an attorney ‘[t]o employ … such means only as are consistent with truth.” [CC § 128.5; B&P Code § 6068(d).

The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise. (Citizens for Ceres v. Sup. Ct. (2013) 217 Cal. App. 4th 889, 911.) California law has long recognized that otherwise unprivileged communications or other documents that are forwarded to an attorney do not thereby become privileged (see, Wellpoint Health Networks, Inc. v. Sup. Ct. (1997) 59 Cal. App. 4th 110, 119), nor do communications on which an attorney was simply “cc’d” if the substance of the communication does not include legal advice. (Costco Wholesale Corp v. Sup. Court Costco Wholesale Corp v. Sup. Court (2009) 47 Cal. 4th (2009) 47 Cal. 4th 725, 735; Caldecott v. Sup. Ct. (2015) 243 Cal. App. 4th 212, 227). Similarly, the attorney-client privilege does not protect underlying facts which may be referenced within a qualifying communication. (State Farm Fire & Cas. Co. v. Sup. Ct. (1997) 54 Cal. App. 4th 625.) And it does not protect communications where the relationship between the parties to the communication is not one of attorney client such as when an attorney acts merely as a negotiator or provides business advice. (Caldecott v. Sup. Ct., supra, 227.)

The attorney-client privilege is a privilege against disclosure only of “a confidential communication between client and lawyer.” Cal. Evid. Code § 954; State Farm Fire & Cas. Co. v. Superior Court Superior Court (1997) 54 Cal.App.4th 625, 639 (“the attorney client privilege only protects disclosure of communications between the attorney and the client”). The privilege does not extend, and cannot be extended, to anything else. D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 739 (“the statute is to be strictly construed against the claim of privilege”); McKesson HBOC, Inc. v. Superior Court McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal. (2004) 115 Cal. App.4th 1229, 1236 (“In California, the attorney-client privilege is a legislative creation. (See §§ 950–962.) The courts of this state have no power to expand it”); Cal. Evid. Code § 911(b) (“Except as otherwise provided by statute … No person has a privilege to refuse to disclose any matter or to refuse to produce any writing”).

Within the foregoing subject and scope of the privilege, some communications between non-attorneys can be privileged, but
only to the extent that they actually discuss or contain legal advice from counsel. Only if “legal advice is discussed or contained in the communication between [non-attorney] employees, then to that extent, it is presumptively privileged.” Zurich Am.
Ins. Co. v. Superior Court Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1502 (emphasis added).

To the extent any non-attorney communication sets forth other matter, it is in no way or sense “a confidential communication between client and lawyer,” and it is not privileged. See id. Thus, where a non-attorney communication includes, in part, “a confidential communication between client and lawyer,” that part may be redacted, and the rest of the document must be produced. This conclusion is plain and unavoidable, as similar federal cases also show. See, e.g., In re Premera Blue Cross Customer Data Security Breach Litigation (D. Or. 2017) 296 F.Supp.3d 1230, 1250 (“Plaintiffs argue that Premera may redact documents that contain some privileged and some nonprivileged information and must then produce the nonredacted portions. The Court agrees. When an email chain contains an email that is privileged or contains privileged information and the remaining emails in that chain do not contain privileged information, the privileged material may be redacted, but the remaining material must be produced”); U.S. v. Chevron Corp. (N.D. Cal. March 13, 1996) 1996 WL 264769, *5 (“If non-privileged material is contained in a document which the Magistrate finds to be privileged, then that material should be disclosed”).

The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise. (Citizens for Ceres v. Sup. Ct. (2013) 217 Cal. App. 4th 889, 911.) California law has long recognized that otherwise unprivileged communications or other documents that are forwarded to an attorney do not thereby become privileged (see, Wellpoint Health Networks, Inc. v. Sup. Ct. (1997) 59 Cal. App. 4th 110, 119), nor do communications on which an attorney was simply “cc’d” if the substance of the communication does not include legal advice. (Costco Wholesale Corp v. Sup. Court Costco Wholesale Corp v. Sup. Court (2009) 47 Cal. 4th (2009) 47 Cal. 4th 725, 735; Caldecott v. Sup. Ct. (2015) 243 Cal. App. 4th 212, 227). Similarly, the attorney-client privilege does not protect underlying facts which may be referenced within a qualifying communication. (State Farm Fire & Cas. Co. v. Sup. Ct. (1997) 54 Cal. App. 4th 625.) And it does not protect communications where the relationship between the parties to the communication is not one of attorney client such as when an attorney acts merely as a negotiator or provides business advice. (Caldecott v. Sup. Ct., supra, 227.)
The attorney-client privilege is a privilege against disclosure only of “a confidential communication between client and lawyer.” Cal. Evid. Code § 954; State Farm Fire & Cas. Co. v. Superior Court Superior Court (1997) 54 Cal.App.4th 625, 639 (“the attorney client privilege only protects disclosure of communications between the attorney and the client”). The privilege does not extend, and cannot be extended, to anything else. D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 739 (“the statute is to be strictly construed against the claim of privilege”); McKesson HBOC, Inc. v. Superior Court McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal. (2004) 115 Cal. App.4th 1229, 1236 (“In California, the attorney-client privilege is a legislative creation. (See §§ 950–962.) The courts of this state have no power to expand it”); Cal. Evid. Code § 911(b) (“Except as otherwise provided by statute … No person has a privilege to refuse to disclose any matter or to refuse to produce any writing”).
Within the foregoing subject and scope of the privilege, some communications between non-attorneys can be privileged, but only to the extent that they actually discuss or contain legal advice from counsel. Only if “legal advice is discussed or contained in the communication between [non-attorney] employees, then to that extent, it is presumptively privileged.” Zurich Am. Ins. Co. v. Superior Court Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1502 (emphasis added).
To the extent any non-attorney communication sets forth other matter, it is in no way or sense “a confidential communication between client and lawyer,” and it is not privileged. See id. Thus, where a non-attorney communication includes, in part, “a confidential communication between client and lawyer,” that part may be redacted, and the rest of the document must be produced. This conclusion is plain and unavoidable, as similar federal cases also show. See, e.g., In re Premera Blue Cross Customer Data Security Breach Litigation (D. Or. 2017) 296 F.Supp.3d 1230, 1250 (“Plaintiffs argue that Premera may redact documents that contain some privileged and some nonprivileged information and must then produce the nonredacted portions. The Court agrees. When an email chain contains an email that is privileged or contains privileged information and the remaining emails in that chain do not contain privileged information, the privileged material may be redacted, but the remaining material must be produced”); U.S. v. Chevron Corp. (N.D. Cal. March 13, 1996) 1996 WL 264769, *5 (“If non-privileged material is contained in a document which the Magistrate finds to be privileged, then that material should be disclosed”).

Discovery is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing
for trial, or aids in settlement of the case (Gonzalez v. Superior Court (1995) 33 Cal. App.4th 1539, 1546), or merely assists (1995) 33 Cal. App.4th 1539, 1546), or merely assists a party in evaluating the case and preparing for trial “that is enough to justify discovery.” (Lipton v. Superior Court Lipton v. Superior Court (1996) 48 Cal. App.4th 1599,1616.)

The target of discovery is relevant if it is “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) “Under the Legislature’s “very liberal and flexible standard of relevancy,” any “doubts as to relevance should generally be resolved in favor of permitting discovery.(Cite omitted.)” (Williams v. Superior Court (2017) 3 Cal.5th 531, 542.)
Discovery is “relevant to the subject matter of the litigation” if it possibly assists the party in evaluating the case, preparing for trial, or aids in settlement of the case (Gonzalez v. Superior Court (1995) 33 Cal. App.4th 1539, 1546), or merely assists (1995) 33 Cal. App.4th 1539, 1546), or merely assists a party in evaluating the case and preparing for trial “that is enough to justify discovery.” (Lipton v. Superior Court Lipton v. Superior Court (1996) 48 Cal. App.4th 1599,1616.)

An objection based on burden is only valid when the burden is shown to result in injustice since a “burden” is inherent in
responding to all discovery demands. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418; Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 504.) To suffice as a valid objection, “burden” must be supported by some showing of injustice. (Durst v. Superior Court (1963) 218 Cal.App.2d 460, 468.) All discovery imposes some burden, therefore to support an objection of oppression there must be some showing that the ultimate effect of the burden is incommensurate with the result sought. (Mead Reinsurance Co. v. Supt Ct. (1986) 188 CA3d 313, 318.)

An objection based on burden is only valid when the burden is shown to result in injustice since a “burden” is inherent in
responding to all discovery demands. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418; Pantzalas v. Superior Court (1969) 272 Cal.App.2d 499, 504.) To suffice as a valid objection, “burden” must be supported by some showing of injustice. (Durst v. Superior Court (1963) 218 Cal.App.2d 460, 468.) All discovery imposes some burden, therefore to support an objection of oppression there must be some showing that the ultimate effect of the burden is incommensurate with the result sought. (Mead Reinsurance Co. v. Supt Ct. (1986) 188 CA3d 313, 318.)

“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, citing Hunter v. International Systems & Controls Corp. (W.D.Mo. 1972) 56 F.R.D. 617.) “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Id.)

“A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, citing Hunter v. International Systems & Controls Corp. (W.D.Mo. 1972) 56 F.R.D. 617.) “Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Id.)

It is well established that the burden of proof is on the party making an objection to sustain its objection. (See e.g., Coy v. Superior Court (1962) 58 Cal.2d 210, 220; Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12; West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 422.) Boilerplate objections have been condemned by appellate courts as “nuisance objections” and, even when involving important privileges, have necessitated monetary sanctions to compensate for the time wasted in eliminating them. (See e.g., Standon v. Superior Court (1990) 225 Cal.App.3d 898 (re impropriety of boilerplate “nuisance” objections); Clement v. Alegre (2009) 177 Cal.App.4th 1277 (re imposition of sanctions for “meritless” and “nitpicking” objections.)

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