In litigation, written discovery typically consists of (1) Requests for Production, (2) Requests for Admission, and (3) Interrogatories.[1] If you do not object to a request, those objections may be waived.Below is a comprehensive list of the categories of objections that can be used for each. While the authorities cited are to Federal and California law, these objections apply to most jurisdictions and can also be used to object to deposition notices.
Categories of Discovery Objections
Start your objections with the phrase: "Plaintiff/Defendant objects to this request/interrogatory on the ground that . . . "
End with a position on production/response (see "Final Position on Discovery" below for phrases to include after objections).
RELEVANCE
- Federal: It is not relevant to this litigation nor is it proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.[2]
- California: It is not relevant to this litigation nor reasonably calculated to lead to the discovery of admissible evidence [and to the extent it seeks information which does not concern events, conditions, or matters relating to the alleged actionable conduct underlying this lawsuit].[3]
OVERBREADTH, VAGUENESS, AMBIGUITY
- It is overbroad in time and scope.[4]
- ~E.g., it seeks "any and all documents" rather than documents sufficient to show "_____," and as such is cumulative.
- ~E.g., the request seeks documents and information outside the putative class period and that pertain to a broader group than the proposed class definition.
- It is vague and ambiguous, particularly as to the terms/phrase "_____."
- ~E.g., The term "_____" requires Plaintiff/Defendant to speculate as to what documents might be responsive.
- ~E.g., The phrase "_____" calls for documents proving a negative.
- It is unduly burdensome and oppressive.[5]
- ~E.g., because it is calculated to annoy and harass the party.
- ~E.g., because numerous documents may tangentially refer to this request.
- It is overbroad, burdensome, and oppressive because it requires Defendant to prepare a compilation of data. (For Interrogatories).[6]
CONFIDENTIALITY
- Privacy Rights
- ~It seeks income tax returns, W2s, and/or 1099 forms, which are privileged under state and federal law.[7]
- ~It seeks information, such as medical history, that is in violation of a party's constitutionally protected right to privacy under Article I, section I of the California Constitution.[8]
- Third Party Privacy
- ~It invades the privacy rights of third parties.
- ~It seeks information protected from disclosure by a right of privacy, including the production of consumer or employee records prohibited under California law.
- It seeks to invade the right of privacy held by Plaintiff/Defendant's current and former employees.
- Trade Secrets/Confidential Company Information
- ~It seeks documents or information containing and/or reflecting trade secrets, confidential information and/or other proprietary information from Plaintiff/Defendant.
- ~It seeks documents that contain confidential and proprietary business information.
PRIVILEGES
- To the extent it seeks information protected from disclosure by the attorney-client privilege[9]or the attorney work-product doctrine[10]. E.g., Since the filing of this lawsuit, counsel for Plaintiff/Defendant has exchanged emails and correspondence with Plaintiff/Defendant regarding the claims in this case, and such documents are privileged.
- For the position that witness statements and interviews are privileged and protected by work-product in California: Coito v. Superior Court, 54 Cal.4th 480 (2012) and Nacht &' Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996). One option is to stipulate with opposing counsel that it shall be the law of the case that the parties will mutually disclose interviewees and any witness statements.
ELECTRONICALLY STORED INFORMATION
- It requires the production of electronic documents or records that are not reasonably accessible or for which the cost of production would be unreasonable so as to make the request unduly burdensome and oppressive.[11]
REQUEST IS OTHERWISE IMPROPER
- It seeks a legal conclusion.
- It seeks premature disclosure of expert opinion in violation of Cal. Civ. Proc. Code 2034.210, 2034.220, and 2034.270. (Combine with a work-product objection.)
- It assumes contested facts.
- It is contains subparts, is compound, conjunctive, or disjunctive.[12]
- It is duplicative of request No. __.
SPECIAL PRACTICE AREAS OR CIRCUMSTANCES
- Class Certification
- ~It is overbroad, burdensome, and oppressive because it prematurely seeks merits-based information and documents pertaining to liability and damages prior to class certification. g., Questions pertaining to liability and damages issues are unduly oppressive, harassing, and burdensome at the pre-certification stage of the litigation. Plaintiff will have the opportunity to propound discovery on liability and damages issues if the proposed class is certified.
- Asking Corporate Defendant for Individual's Documents This request requires Deponent, as an individual, to search Company files, computers and records for responsive documents. Documents that are the property of Company are not within the Deponent's individual possession, custody or control.
- Res Judicata, Collateral Estoppel and Arbitration
- ~It seeks information about claims that are barred by the doctrines of res judicataand collateral estoppel.
- Unavailability for PMK Deposition:
- ~Plaintiff/Defendant objects to this notice of person most knowledgeable deposition on the ground that the person Plaintiff/Defendant would designate, and counsel, are not available on the date unilaterally selected by Plaintiff.
- ~Plaintiff/Defendant objects because the Notice of Deposition violates ____ Court Rules and the Guidelines for Civility in Litigation in that reasonable consideration was not given to accommodating the schedule of opposing counsel and of the deponent when it was possible to do so without prejudicing Plaintiff's rights.[13]
FINAL POSITION ON PRODUCTION
- Construing the request: Plaintiff/Defendant construes "_____" to mean "_____."
- Subject to and without waiving the foregoing objections, Defendant hereby responds as follows:
- Discovery is ongoing and Defendants reserve the right to supplement this response at a later time as appropriate.
- Plaintiff/Defendant has conducted a diligent search and made a reasonable inquiry and will produce non-privileged documents in its possession, custody or control.
- Plaintiff/Defendant has conducted a diligent search and made a reasonable inquiry and has determined that there are no responsive documents in its possession, custody or control.
- Plaintiff/Defendant has conducted a diligent search and made a reasonable inquiry and has determined that responsive documents have never existed.
Where claiming privilege: At this early stage in the litigation, Plaintiff/Defendant has not discovered any privileged documents that are responsive to this request.
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[1]See Fed. R. Civ. Proc. 33, 34, 36; Cal. Civ. Proc. Code §§ 2030.210, 2031.210, 2033.210.
[2] Fed. R. Civ. Proc. 26(b)(1). In 2015, FRCP 26 limited the scope of discovery by changing the standard from "reasonably calculated to lead to the discovery of admissible evidence" to a proportionality standard; see also Advisory Committee on Civil Rules, available at http://www.uscourts.gov/rules-policies/archives/agenda-books/advisory-committee-rules-civil-procedure-april-2014.
[3] Cal. Civ. Proc. Code § 2017.010.
[4] Fed. R. Civ. Proc. 26(b); Cal. Civ. Proc. Code § 2017.020.
[5] Fed. R. Civ. Proc. 26(b); Cal. Civ. Proc. Code § 2030.090(b); Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County, 263 Cal.App.2d 12, 19 (1968).
[6] Cal. Civ. Proc. Code § 2030.230; Brotsky v. State Bar of California, 57 Cal.2d 287 (1962).
[7]Webb v. Standard Oil Co., 49 Cal.2d 509 (1957).
[8]Vinson v. Superior Court, 43 Cal.3d 833, 842 (1987).
[9] Fed. R. Evid. 501 (noting that common law and state law govern claims of privilege); Cal. R. Evid. § 954; Mitchell v. Superior Court, 37 Cal.3d 591, 601 (1984).
[10] Cal. Civ. Proc. Code §§ 2018.020-2018.030.
[11] Fed. R. Civ. Proc. 26(b)(2)(B); Cal. Civ. Proc. Code § 2031.060
[12] Cal. Civ. Proc. Code 2030.060(f).
[13] Look up your Local Rules to find a similar provision, if any. The San Francisco Superior Court Local Rules include such a provision.
