California Dreaming? New Discovery Rule May Be a Nightmare for Litigants

September 18, 2019

Soon, the cost of responding to document requests in California state court will significantly rise. Previously — and as with many other jurisdictions and in federal court — documents could be produced through one of two methods: (1) as they are kept in the usual course of business, or (2) organized and labeled to correspond with the categories in the demand. Not anymore.

Effective Jan. 1, 2020, Code of Civil Procedure § 2031.280 requires that documents be produced by identifying “the specific request number to which the documents respond.” Technically, this was always an option. Few used it, however, due to the burden it imposes. In large-scale document productions, identifying each request to which each document is responsive is impractical and burdensome. There may be dozens of document requests (or even hundreds of requests) and tens of thousands of documents that need to be reviewed. Matching each document to every responsive request (many of which are duplicative or overlapping) would cause document reviews to move at a snail’s pace, significantly increasing review costs.

Unfortunately, litigants in California state court no longer have a choice. Counsel will need to be mindful of the increased production burden and expense when agreeing on the scope of document review, and may want to push harder to reduce the number of documents reviewed. Counsel should also ensure that they are tracking responsiveness to particular requests on the front end to avoid inefficiencies and noncompliance with the amended rules at the production stage.

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