Best Practices for Responding to a Request for Production of Documents
| Publication year | 2020 |
Billie-Jean Lee has been a practicing attorney for 18 years, of which 13 years have been devoted to the practice of family law. She is the owner of Lee Family Law, Inc., which serves the East Bay and Greater Sacramento Area. She is a Certified Family Law Specialist, and she currently serves as a Member of the Executive Committee of the California Lawyers Association, Family Law Section (FLEXCOM).
Opposing counsel served you with a Request for Production of Documents ("RPD"), you promptly informed your client, and a miracle occurs; your client promptly produced all documents that she has in her possession, custody, and control. Now it is time for you to draft your response. Before you recycle that last response to RPD that you drafted just a few months ago (or the sample response that someone drafted in 2015), you may want to consider reviewing the Code of Civil Procedure and see if your responses and objections are in compliance with the law. Don't have time to wade through the Code of Civil Procedure? No worries, let me summarize for you here (and if you are short on time, see the flow chart at the end of this article).
When you respond to a RPD, you have three basic options as to your response: 1) your client will comply and produce;1 2) your client lacks the ability to comply and does not produce;2 or 3) you object and do not produce.3
If your client complied and produced the documents in her possession, custody, and control, then you must respond as to whether you are complying in whole or in part.4 If your client produced all documents in her possession, custody, and control, you must state that you are producing all documents in responding party's possession, custody, and control. If you do not, then you may get a meet-and-confer letter from opposing counsel asking you why you did not comply in whole.
The best practice when your client is producing everything in her possession, custody, and control is to respond as follows: "Responding Party complies with this request in whole and that all documents in the demanded category that are in her possession, custody, and control, and to which no objection is being made, are produced."
Sometimes your client cannot produce the documents requested. Note that "cannot" here means the lack of ability to comply, and not the lack of desire to comply. If your client cannot comply with the request by producing all documents in her possession, custody, and control, it is insufficient to merely state: "Responding Party lacks the ability to comply and cannot produce the documents requested." You must...
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