January 1, 2021, marks the one-year anniversary of the effective date amending the Code of Civil Procedure requiring that “any documents or category of documents produced in response to a demand for inspection, copying, testing or sampling shall be identified with the specific request number to which the documents respond.” (Cal. Civ. Proc. § 2031.280(a)). This change in the law evidenced a significant departure in civil discovery from the good old days of documents being produced “as kept in the ordinary course of business,” effectively shifting substantial additional discovery costs from the propounding party to the responding party.
So now that a year has gone by, what have we learned about the new statute in practice? From the courts, almost nothing. The timing of the new statute ran headlong into the COVID-19 pandemic and its accompanying drag on civil case and appellate timelines as courts implemented limiting orders to protect their staff, parties, attorneys, juries and other court participants. This, in turn, impacted discovery timelines in current and existing cases.
Not a single published (or unpublished) decision in California took on the ambiguities left by the statute, such as (1) how to identify documents that are responsive to multiple requests; (2) how to update, amend or supplement a responding party’s original labeling of responsive documents; (3) how other Code of Civil Procedure protections against impermissibly burdensome or expensive discovery procedures (see, e.g., Code Civ. Proc. § 2023.010(c)) will be harmonized with the additional expenses imposed by the response requirement; or (4) will opposing parties be able to weaponize the responding party’s identification under penalty of perjury of particular categories for particular documents to use against the responding party at a later time, since the categorization itself could be viewed as an admission of responsiveness.
As a refresher, the stated purpose of the legislative change from the California Senate Judiciary Committee was to “provide more streamlined and responsive document production, if at the slight expense of the producing parties.” The Assembly Committee on Judiciary reasoned that “making sense of an unorderly production is an inefficient use of time and effort by litigants” and further stated that the amendment “will serve as a great tool to help people clarify whether documents were in fact produced in response to each category.” Both the Consumer Attorneys of California and the California Defense Counsel reported to the legislature that “often responsive discovery simply hands over reams of documents without specifying the specific demands they are responsive to, leaving the requesting party to make the connections.”
In practice, the additional burden laid upon the shoulders of responding parties created – particularly in large scale document productions – one or more additional layers of document review or in certain cases, a more senior attorney’s review at an earlier stage, each leading to increased costs. In doing a cost-benefit analysis, some parties have taken the strategic approach to object to discovery requests that in the past they would not have challenged to further limit the scope of the discovery thereby offsetting the additional costs of the category identification for the documents now required by the amendment.
And cost is not the only issue at stake: the statutory requirement also fails to recognize that requiring a responding party to explicitly delineate potentially responsive categories risks sanctioned invasion of attorney-client privilege and attorney work product, which are not the proper subject of discovery. (See Code Civ. Proc. § 2017.010 – discovery is for matters “not privileged”.) Where the document demands are for more generalized discovery, such as “Request #1: All communications between Plaintiff and Defendant,” the risk is far less than document requests tied to specific legal theories, such as “Request #2: All documents related to Defendant’s Fourth Affirmative Defense for Notice.”
Imagine further an email between Plaintiff and Defendant that appears innocuous on its face and would be properly categorized as responsive to Request #1. But a savvy defense attorney may have picked up on certain statements buried in that email that the attorney learned through an attorney-client communication or the attorney’s own investigation support or undermine the Notice Affirmative Defense. Without the benefit of the privileged communication or work product, opposing counsel may have missed it altogether, but now gets the benefit of that otherwise privileged information by the designation of the email by the responding party as responsive to both Request #1 and Request #2. This is particularly egregious where the document may be detrimental to the client if the additional insight from the responding party’s counsel in the identification of the document category is provided.
Until there is case law clarifying the new statute’s specific requirements with the other constraints embedded in the Code of Civil Procedure to protect the parties, there are certain steps responding parties can take now to protect their interests as much as reasonably possible:
- State a general objection in the responses to document demands that objects to the providing of specific document category identification to the extent such identification invades attorney-client privilege and/or attorney work product.
- For document demands related to particular legal theories as opposed to generalized fact discovery, specifically object that such document demands invade the attorney-client privilege and/or work product.
- Include a disclaimer in identification of each document’s responsive categories that (1) the identification of particular categories is for reference to the demanding party per the statute and cannot be used as an admission of whether the documents bear any actual relation to the case nor whether the documents are relevant; (2) the category list for each document is based on initial review, is not necessarily intended to be exhaustive and further investigation of the case may lead to different conclusions regarding to what categories a particular document may be responsive; and (3) the verification provided as required by the Civil Discovery Act is for the responses to each document request and not to the identification of particular categories for each document produced except to the extent required by law.
- For larger document review/production projects, plan additional investment in orientation to provide initial document reviewers with further understanding of the document categories so they can tag all responsive categories in the initial review to limit the need for an additional level of review later.
Though the statute remains largely uncharted waters, following this guidance will help responding parties stay the course.
Brian D. Walters is a partner at Poole, Shaffery & Koegle, LLP specializing in innovative legal strategy and creative problem solving on behalf of clients in litigation, appellate, transactional and regulatory issues.