Musings on annoying discovery tactics

In January I was busy completing my mandatory continuing legal education (“MCLE”)requirements. It’s not bad, 25 hours every three years, and minimum amounts in ethics (Ethics? Lawyers? Hah! some might say), detection of substance abuse and elimination of bias.

One nice thing is that one can “attend” a CLE session without leaving the comfort of one’s office. One weekend I watched an online video produced by the California State Bar, modestly entitled “Best Practices for Winning Litigation and Trial–Practical Approaches to Perplexing Discovery Problems….” There actually was a lot more in the title but to reprint it here would not be a good use of my cyber space.

So there I was, watching the panel, the typical lineup of a plaintiff’s attorney, a defense attorney, and a judge or two. It was fairly uneventful until the defense attorney advised the attendees to include an objection based on privilege (e.g. attorney-client) when responding to a document request, even when the attorney is unaware of any documents called for in the request that are protected by the privilege. According to this person (whom I am charitably refraining from naming) it’s a good idea to include this as “general objection” and, because “you already know there aren’t any documents, you don’t have to worry” about producing one of those bothersome privilege logs.

This caught my attention, and not in a good way. I absolutely detest boilerplate objections like that and it has been my experience that they are most often used by big firm attorneys on behalf of big cheese clients.

“Not so fast,” you say. “Isn’t it better to state the objection “just in case,” in order to “preserve” it? My instinct was “no” but, just to be thorough, I asked an expert: the Honorable Socrates P. Manoukian, the Santa Clara County Superior Court judge who presides over the discovery calendar. He said that I had touched a “sore point” and he condemns the practice of “blanket” objections in definite terms.

“California’s Discovery Act does not authorize “general objections.” Objections must be stated separately in response to each interrogatory and inspection demand. (CCP § 2030 .210(a)(3) (interrogatories); § 2031.210(a)(3) (requests for production); § 2033.230(b) (requests for admissions.)” Judge Manoukian took the trouble to provide a number of citations to cases wherein various appellate courts have roundly condemned the use of “general” or “blanket” objections. He also pointed out that such objections are not only improper, they are unethical. “It is a violation of an attorney’s duties under Business & Professions Code, § 6068(d) to assert objections to requests for documents when those documents do not exist or are not in the responding party’s possession.” Bihun v. AT&T Information Systems (1993) 13 Cal.App.4th 976, 991 fn.5 (objecting when no documents exist is “bad faith”) (disapproved on other grounds in Latkin v. Watkins Associated Industries (1993) 6 Cal.4th644, 664.)

I am happy to report that the plaintiff’s lawyer in the seminar that I was watching disagreed with the “just in case” objection tactic. Yay plaintiffs!

In short: when you are responding to discovery and you need to know how to respond, just read the code. Everything you need is there. Don’t make objections unless you believe (in good faith) that a basis for the objection exists. Using a lot of fancy words doesn’t make you a good attorney; using your head is a better idea.