Speculation and the Inadequate Document Production

Kristen M. Johnson, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published:  05.01.2013

It is far too common during the discovery process to receive responses to written discovery requests that appear to fall short of being full and complete.  California’s Civil Discovery Act provides specific devices to ensure discovery stays on track during litigation.  This includes the ability to file a motion to compel further responses and seek sanctions for discovery abuses.  However, when faced with the question of just how sure you or your client are that the opposing party has failed to deliver complete responses to a request for production of documents for example, mere speculation as to that inadequacy may not be enough to convince a court to compel further responses.  This uncertainty is heightened by the expanse of eDiscovery in recent years and the increased reliance upon third party vendors to assist with this process.  One thing is clear, third party vendors are not full proof.  A court will likely hold a vendor’s eDiscovery mistake on the party responsible for complying with the production.  This article explores the intersection of uncertainty when it comes to a perceived inadequate document production and why mere speculation may not be enough, especially when a third party is hired to preserve and retrieve electronically stored information.

When faced with what appears to be an inadequate discovery response, the California Code of Civil Procedure dictates that parties are to meet and confer in an attempt to resolve the dispute informally.  If the meet and confer process is skipped, monetary sanctions are mandatory.  CAL. CODE CIV. PROC. § 2023.010(i).  If this informal negotiation fails to resolve the issue, the dissatisfied party has 45 days to move to compel a further discovery response by court order, with the losing party likely to face mandatory monetary sanctions unless the court finds “substantial justification” for that party’s position or other circumstances which would make the imposition of sanctions unjust.  CAL. CODE CIV. PROC. §§ 2025.450, 2030.290, 2030.300, 2031.300, 2031.310, 2032.240, 2033.290, and 2034.730.  See also Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403 (finding that the 45 day deadline for bringing a motion to compel discovery is jurisdictional and the court’s only authority after its expiration to rule on the motion is to deny it).  

Prior to initiating a motion to compel, the moving party is required to declare that he or she has made a serious attempt to obtain “an informal resolution of each issue.”  CAL. CODE CIV. PROC. §§ 2016.040, 2025.450, 2031.310.  The Discovery Act requires counsel make a reasonable and good faith attempt to discuss the matter, compare their views and consult the issues thoroughly.  Townsend v. Superior Court (1998) 61 Cal. App. 4th 1431 (holding that a good faith attempt at informal resolution requires more than bickering at a deposition).  How extensive does this informal effort to resolve the issues have to be?  It is likely that the more complex the discovery issue is, the greater effort may be required; modest effort may suffice in a simpler and more focused case.  See Obregon v. Superior Court (1998) 67 Ca. App. 4th 424 (outlining the relevant factors for determining whether a party has made an adequate attempt at informal resolution and finding that the plaintiff should have made a greater effort than a single brief letter to defendant after defendant’s objections to plaintiff’s grossly overbroad interrogatories);  Steward v. Colonial Western Agency, Inc. (2001) (applying Obregon’s meet-and-confer factors and upholding a motion to compel deposition answers where the objections were made during a deposition so counsel had an opportunity to discuss the matter face-to-face at the time the discovery dispute arose over a relatively simple issue).  

If the meet and confer process has proven unsuccessful and a motion to compel further responses to discovery appears imminent, just how sure do you need to be that the opposing party has not fully complied with your request when seeking the production of documents?  One recent California unpublished opinion hints that more than mere speculation that a document production was inadequate is required to compel a further response.  In Sukumar v. Med-fit Systems, Inc. (Cal. Ct. App., May 2, 2012, D058855) 2012 WL 1534098, a plaintiff brought a breach of contract action related to the purchase of medical equipment against defendants. Sukumar v. Med-fit Systems, Inc. (Cal. Ct. App., May 2, 2012, D058855) 2012 WL 1534098 at *1.  On remand following the court of appeal’s initial decision that there was insufficient evidence to support the jury’s implied finding that defendant performed its obligations under the agreement, the jury again rendered special verdicts in favor of the defendant.  Id. The plaintiff timely appealed this judgment along with a pretrial discovery decision against plaintiff denying his motion to compel the further production of documents.  Id.  

Following the initial remand and before the second jury trial, the plaintiff requested the defendant to disclose its e-mails and all other electronically stored information concerning the product order.  Id. at 4.  The defendant responded that it had already disclosed all relevant documents during this initial proceeding.  Id. Plaintiff then filed a motion to compel the documents based on his belief that the initial production was incomplete.  Id.  The trial court denied the motion to compel, finding that the defendant’s response was sufficient and that plaintiff “has offered only speculation that additional documents exist.”  Id.  On appeal, the plaintiff contended that the trial court’s order denying his motion to compel should be reversed.  Id.  The court of appeal ultimately determined that the plaintiff would not be able to show that the trial court’s decision prejudiced him even if there was error in denying the motion to compel, in light of the court’s conclusion that defendant did not breach the contract.  Id. at 5. 

Though the appeal in this case was denied, it does give insight into how courts are handling production issues related in part to eDiscovery issues.  Essentially, it may not be enough to speculate that a production is inadequate when bringing a motion to compel further production.  Caution should be exercised to ensure that there is some identifiable evidence that the production is incomplete or an unsuccessful motion to compel could leave the moving party with monetary sanctions.

This scenario is further complicated in light of the increasing tendency for litigants and their attorneys in becoming more reliant on third party consultants for the collection and production of electronically stored information.  It is clear that the responsibility for ensuring the preservation, collection, processing and production of electronically stored information lies with the party and its counsel, not the third party consultant or vendor.  See Berge Helene, Ltd v. GE Oil & Gas Inc.I (S.D. Tex. March 1, 2011) 2011 U.S. Dist. Lexis 19865 (imposing a cost-shifting sanction, including payment for certain expenses for supplemental depositions, against a defendant for its late production of approximately 70,000 pages of documents which the defendant attributed to an e-vendor error).  Third party consultants are not fool proof ways to ensure compliance with eDiscovery requests and a party relying on them often does so at the risk of facing sanctions if it is later discovered that an error occurred in the process.  

It may be the case that a party seeking discovery of electronically stored information from an opposing party is suspicious that the production is incomplete.  Even if a third party vendor was utilized in securing the production, there still exists the chance that an error was made and the document production could be incomplete.  These vendors work at the direction of the party hiring them to complete the project and their computer forensics may be flawed by the information supplied to them.  However, it is still the case that the use of a third party vendor which specializes in eDiscovery is likely to strongly suggest to the court that the document production is indeed complete. In this scenario, given the likelihood that mere speculation as to the incompleteness of a production is not likely to be enough to compel a further response, a party considering a motion to compel should be prepared to demonstrate exactly why the production is incomplete and may want to consider a detailed analysis of the process used by the vendor to see if there was a possible error.