Production of Documents and Other Things

• Author: Robert F. Kane/Donald G. Rez
• Pages: 69-160

Chapter 21

Production of Documents

and Other Things

QUICK VIEW

Definitions: A notice to produce and permit discovery is a written demand by a party to inspect, copy, test or

photograph documents or other tangible things in another party’s possession, custody, or control. A party can also

obtain access to documents and other things from a nonparty pursuant to a subpoena.

Scope: Rules and techniques applicable to noticing the production of documents, responding and objecting to a

notice, producing documents, and compelling production and related motion practice. Stipulations and protective

orders for confidential materials. Subpoenas to third parties. Public records.

Strategic and Tactical Considerations:

Both parties: To avoid the delay and expense of extraneous arguments about procedure, strictly comply with the

formalities of providing notice and producing documents. Consider stipulating to procedures for exchanging documents.

Demanding party: Serve written demands for production of documents early. Draft notices that identify the

demanded items with reasonable particularity. Use definitions and instructions sections to make the detailed

demands more concise, effective, clearer, and less objectionable.

Respondent: Work with the client to compile the responsive items. Segregate the items you will withhold (e.g.,

nonresponsive, privileged, confidential, and trade-secret matters) from materials you will produce and prepare a

privilege documents log for service on the demanding party. To avoid waiving objections to the demand, timely

serve a written response asserting all the objections you want to preserve. If the demand seeks confidential infor-

mation, propose the parties enter into a confidentiality agreement or stipulation and consent to a protective order.

Statutes and Rules: CCP §§2020.010-2020.510, 2031.010-2031.510; Evid C §1560 ff; Gov C §6250 ff; 5 USC §552.

Related Topics: Motion Practice, Ch 14; All Discovery, Ch 20.

California Pretrial Practice & Forms 21-2

Forms in Digital Access: See digital access for the following forms:

• Form 21:10 Request for Production of Documents to Plaintiff.

• Form 21:20 Request for Production of Documents to Defendant.

• Form 21:30 Response to Request for Production of Documents.

• Form 21:40 Supplemental Response to Request for Production of Documents [with verification and proof

of service].

• Form 21:50 Privilege Log.

• Form 21:60 Confidentiality Agreement.

• Form 21:65 Litigation Hold Memo.

• Form 21:70 Stipulated Protective Order.

• Form 21:80 Meet and Confer Letter With Regard to Responses to Requests for Document Production.

• Form 21:90 Notice of Motion to Compel Document Production.

• Form 21:100 Points and Authorities in Support of Motion to Compel Document Production.

• Form 21:110 Notice of Motion and Motion to Compel Further Responses to Requests for Production of

Documents #1.

• Form 21:120 Points and Authorities in Support of Motion to Compel Further Responses to Requests for

Production of Documents.

• Form 21:130 Declaration in Support of Motion to Compel Further Response #1.

• Form 21:140 Notice of Motion and Motion to Compel Further Response to Request for Production of

Documents #2.

• Form 21:150 Declaration in Support of Motion to Compel Document Production #2.

• Form 21:160 Statement of Items in Dispute in Support of Motion to Compel Further Response.

21-3 Production of Documents and Other Things

TABLE OF CONTENTS

I. PARTY DOCUMENT DEMANDS

A. GENERAL POINTS

§21:01 Important Discovery Procedure

§21:02 Governing Statute: CCP §§2031.010-2031.510

§21:03 No Local Rules

§21:04 Governing Cases

§21:05 “Demand to Produce” Defined

§21:06 “Document” Defined

§21:06.1 “Electronically Stored Information” Defined

§21:07 Timing

§21:08 Who Can Be Made Respondents

§21:09 All Parties in a Multi-Party Case Are Entitled to Production

§21:10 Scope of Demands

§21:11 No Limit on Number

§21:12 Production Does Not Make Items Admissible

§21:13 Overview of New “Electronically Stored Information” Provisions in

Discovery Act

B. USING DEMANDS TO PRODUCE WITH OTHER DISCOVERY TOOLS

§21:20 Document Discovery Often Comes First

§21:21 Authenticate Documents

§21:22 Identify Documents

§21:23 Testimony and Documents Subpoena

§21:24 Follow Up With More Document Demands—But...

§21:25 Informal Investigation

C. STEPS TO OBTAIN DOCUMENTS

1. Prepare Demands

a. Form of Demands

§21:30 Put Demands in Writing

§21:31 Informal Demands

b. Format

§21:40 Caption

§21:41 Title/First Paragraph

§21:42 Definitions Section

§21:43 Instructions Section

§21:44 “Privilege Log” Instruction

§21:45 “Time, Place, and Manner” Designation

§21:46 Disclose Testing

§21:47 General Form of Individual Demands

§21:48 Numbering

§21:49 Signature

§21:50 Consider “Sampling” as an Alternative to Massive Copying or Inspection in

Cases Involving Multiple Sources of Electronically Stored Information

§21:51 Specify the Form or Forms in Which Each Type of Electronically Stored

Information Is To Be Produced

c. Substance

i. General Points

§21:60 Goals and Strategies

§21:61 Consult Client and Experts

§21:62 Beware of “Boomerang” Demands

§21:63 Specify by Individual Item or Category

§21:64 “Reasonably Particularizing” Categories of Documents and ESI

§21:65 Avoid Compound Demands