Before Requesting Discovery, Have a Plan to Enforce It

When starting discovery, your focus is on the specific requests you will make. But don’t forget to have a plan to enforce your discovery efforts.

Anticipate deficient responses. Don’t wait until after you receive deficient responses to consider an appropriate enforcement plan. Think about how you might enforce your discovery from the moment you begin drafting requests. What you will ultimately do to enforce your discovery will depend on a number of factors, including

  • The importance of the discovery;
  • Whether there are other options to get the information;
  • Whether there’s a legitimate disagreement about the discovery;
  • The degree to which the responding party is noncompliant;
  • Whether you believe opposing counsel is acting in good faith;
  • Whether you think the responding party conducted a diligent search for the information;
  • Whether the way the response is drafted makes it difficult to tell whether information is being withheld; or
  • Whether the problem was caused by poor drafting on your part.

Example 1: If you have concerns that the other side may delay or evade your discovery, begin the meet and confer process before the discovery responses are due.

Example 2: If you realize, before a response is due, that you had drafted an unintelligible or ambiguous discovery request, serve another set of revised requests or clarify the requests with opposing counsel before hand.

Review the response for compliance. The Civil Discovery Act contains strict requirements for the format and content of written responses to interrogatories, inspection demands, requests for admission, and other discovery methods. Noncompliant responses make it difficult to determine whether the responding party is providing all, some, or none of the information requested. For example, if the responding party lacks sufficient personal knowledge to answer an interrogatory, that party must conduct a reasonable and good faith investigation to obtain the information and try to get the information from others. CCP §2030.220(c).

Respond quickly and forcefully when necessary. If the other side is stonewalling by serving clearly deficient responses, taking obviously unreasonable positions, or intentionally delaying or obstructing discovery, you may need to:

  • Limit extensions of time for responding to discovery;
  • Start the meet and confer process immediately;
  • Focus on the most important issues first;
  • Impose a prompt deadline on the meet and confer process;
  • File a motion to compel and for sanctions; or
  • File an ex parte application to shorten time for the hearing on the motion when the discovery is critical.

Example 1: When you receive plainly deficient discovery responses after granting a time extension, further extensions will likely invite further delays. In these instances, consider limiting any future extension absent a very good reason.

Example 2: If a party is using the meet and confer process to further delay or obstruct discovery, draft an immediate meet and confer letter requiring a prompt and substantive response and file a motion to compel and for sanctions, if necessary.

Don’t waste time on minor issues. To ensure the timely production of important discovery matters, don’t waste your time (or the client’s money) quibbling over minor ones.

This practical advice is from CEB’s Action Guide Creating Your Discovery Plan. For more on creating a discovery plan, turn to CEB’s California Civil Discovery Practice, chap 2 and CEB’s program Written Discovery Planning, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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