What to Do If a Party Fails to Produce Requested Documents
Documents Are the Cornerstone of Most CasesAnyone who has ever been party to or observed a trial knows that many, if not most, cases are founded upon documents.
While not all cases will have a smoking gun document such as the secret memorandum which acknowldges a vehicle can explode upon impact, almost every case will have documents that are critical to the case.
It is therefore essential to request and procure all documents from the other side, including electronic information, such as that stored on computers.
As documents are often the cornerstone of a case, it is important that they be requsted and obtained long before trial
Many Parties Fail to Produce Requested Documents.While a party is supposed to produce all requsted documents that are even remotely relevant to any claim or defense in the case, many attorneys will routinely serve objections to document requests, and refuse to produce some or all of the requested documents.
It often happens, for example, that important documents are not produced until after threats are made by requesting counsel, or after the court has ordered production.
Send a Meet and Confer LetterUpon receipt of objections to document requests, the propouding attorney should send a meet and confer letter to the responding attorney.
A meet and confer letter identifies all of the deficincies in the response, and asks that all requested documents either be produced, or at least specifically identified so that the court can order production.
The meet and confer letter satisfies the requirement under California law of attempting to informally resolve a discovery dispute prior to making a motion to compel production of documents.
Make a Motion to CompelIf opposing counsel fails to produce the requested documents after the meet and confer letter has been sent, a motion to compel should be brought.
In the motion to compel, the propounding party asks the court to order the responding party to produce all requested documents.
The "burden is on the party asserting objections to justify any objections made to document disclosure." Weil & Brown, California Proactice Guide, Civil Procedure Before Trial, at ?8:1496. See, Kirkland v. Superior Court (Guess?, Inc.) (2002) 95 Cal. App. 4th 92, 98.
A motion to compel production of documents must be filed by no later than 45 days after the response is served.
Monetary Sanctions Against the Responding PartyCode of Civ. Proc. ?2031.310(d) provides that the court "shall" impose sanctions against a party, who, without substantial justification, asserts an "objection in the response [to a document demand that] is without merit or too general."
Thus, a propounding party has a "hammer" to obtain requested documents without the need for a motion to compel.
ConclusionDocuments are critical to a case.
Accordingly, everything should be done both to request all pertinent documents, and to compel production of such documents if the other side fails or refuses to produce them.
Prior to bringing a motion to compel, the propunding party should make every effort possible to resolve the dispute.
If, despite these efforts, the responding party refuses to produce requested documents, a motion to compel should be promptly made.
In this motion, the propounding party should ask that the other side be ordered to produce all requested documents, and sanctioned for not doing so voluntarily.