Common Discovery Response Errors
Attorneys hate discovery, so they cut and paste from responses they receive or use antiquated responses. In doing so, discovery responses are typically fraught with frivolous objections, jumbled responses or errors in the law.
Frivolous Objections.The most common mistake is "general objections." These are not allowed - so don't do them. You must object specifically to each RFP. You cannot incorporate general objections since they are improper, so just insert the objections you would ordinarily list in the "general" list into each RFP.
In doing so, however, do not use boilerplate, nuisance objections - they are frivolous and are ignored. If you believe a term is vague and ambiguous, identify it "The Responding Party objects to the term "mission" because it is vague and ambiguous." This will serve you well in a meet and confer when you do not answer because it will specifically tell opposing counsel what you need clarified. Same goes for overly broad, burdensome, and oppressive ... explain how/why and you will defeat the "boilerplate objection" problem.
Discovery relevance is far broader than evidence relevance. Fishing trips for fact finding is permissible so one may obtain irrelevant documents because they may lead to admissible evidence. Accordingly, be careful in using an irrelevant objection because mostly everything is relevant in discovery law.
The most egregious, unethical errors I have seen is when an attorney chose to respond to a Family Law Form Interrogatory based on information e-mailed to her by her client without obtaining a verification, which we all know voids the response and when this attorney objected to every RFP, not yet receiving any of the documents from her client. The attorney did not want to ask for an extension because there was a pending hearing. It is bad faith to object to discovery on the basis of privilege and privacy when no documents exist. Moreover, it is a violation the attorney's duties of B&P 6068(d). No privilege log accompanied the request, so the unethical objections were compounded by this often overlooked requirement by attorneys asserting privacy and privilege issues. Create a privilege log - it's not that hard.
We are not paid by the word.Since we are not paid by the word, how about shortening up responses.
I have seen: "The Responding Party refers the Propounding Party to the Response and Production to Request for Production Number 1 for information and documentation relating to the request of this Instant Request for Production because information and documents provided in response to that Request for Production are responsive to this Request for Production."
That summed up is "As items responsive to this request are responsive to a prior (or subsequent) request, the Responding Party directs the Propounding Party to the response and production of RFP No. 1."
No longer do we use the "party of the first part" and "the party of the second part." In family law, more often than not, we use the party names, such as Mark and Mary before we use Petitioner and Respondent. I prefer to use Husband and Wife for dissolution actions or Mother and Father. For same-sex cases, I will use the party names more often than not.
Be efficient in your writing - be direct. It annoys me when I have to wade through words to decipher what my opponent is writing. Just tell me.
Law ErrorsThe most common errors are citing law that has been superseded by new case law and referencing the Civil Code instead of theCode of Civil Procedure. It is always a good practice to double check your citations, particularly when citing cases.