California inspection demands: three ways to respond, a diligent-search affirmation, and documents labeled by request number

California's document discovery statute is more prescriptive than most. It tells you exactly three things a response may say to any one demand, it requires a party who cannot produce something to explain why not and who has it, and it requires the documents themselves to be labeled to the request they answer.

Each of those is a place where a response fails without anyone arguing about relevance.

When you can serve a demand

A defendant: at any time, without leave — CCP 2031.020(a).

A plaintiff: at any time that is 10 days after service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first — CCP 2031.020(b), with the same period in an unlawful detainer action. The court may allow an earlier time for good cause.

What the demand must say

CCP 2031.030 sets the form:

• sets are numbered consecutively;
• immediately below the case title appear the demanding party, set number and responding party;
• each demand is separately set forth and identified by number or letter, and must:

(1) Designate the documents, tangible things, land or other property, or electronically stored information … either by specifically describing each individual item or by reasonably particularizing each category of item. (2) Specify a reasonable time for the inspection … that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date. In an unlawful detainer action … at least five days after service.

Two dates, not one. The response is due 30 days after service under CCP 2031.260(a); the inspection date stated in the demand must also be at least 30 days out. A demand that names an inspection date earlier than that is defective on its face.

ESI format — CCP 2031.030(a)(2): the demanding party "may specify the form or forms in which each type of electronically stored information is to be produced." Per type, not per set.

Supplemental demands: twice, then once

CCP 2031.050 mirrors the supplemental interrogatory provision. A party may propound a supplemental demand to inspect "any later acquired or discovered documents, tangible things, land or other property, or electronically stored information."

A party may propound a supplemental demand … twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 … once after the initial setting of a trial date.

More on motion for good cause. As with interrogatories, this is the mechanism that substitutes for a general supplementation duty — California has none — so the three uses are worth husbanding.

Three ways to respond, and only three

CCP 2031.210(a): the responding party "shall respond separately to each item or category of item by any of the following":

(1) A statement that the party will comply … by the date set for the inspection … (2) A representation that the party lacks the ability to comply with the demand … of a particular item or category of item. (3) An objection to the particular demand.

That is the complete list. There is no fourth option, and in particular there is no "responding party will produce responsive, non-privileged documents in its possession, custody or control to the extent they exist" — a formulation that answers none of the three.

Formatting — subdivisions (b) and (c): the response identifies the responding party, set number and demanding party below the case title, and "each statement of compliance, each representation, and each objection … shall bear the same number and be in the same sequence as the corresponding item," though the text of the demand need not be repeated.

What a statement of compliance must say

CCP 2031.220: it "shall state that the production … will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production."

Both halves are required. A statement that says only "responsive documents will be produced" does not commit, as the statute does, to producing everything in the category that is not objected to.

What an inability to comply must say

CCP 2031.230 is the provision most often defective:

A representation of inability to comply … shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item.

Three obligations: affirm the search, say which of the listed reasons applies, and name whoever has the documents instead. "After a diligent search and reasonable inquiry, responding party is unable to comply" satisfies the first and neither of the others.

What an objection must say

CCP 2031.240(a): where only part of an item or category is objectionable, the response must still contain a statement of compliance or a representation of inability as to the remainder.

Subdivision (b) requires the response to do both of:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection.

A privilege objection must state the particular privilege invoked; a work product claim must be expressly asserted.

And the privilege log is in the statute — subdivision (c):

(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.

Thirty days to respond — five in an unlawful detainer

CCP 2031.260(a): within 30 days after service of the demand, serve the original response on the demanding party and a copy on all other appearing parties, unless the court has shortened or extended the time on motion.

Subdivision (b): in an unlawful detainer action, at least five days from service.

Extensions of the inspection date are handled by CCP 2031.270, and CCP 2031.300 treats an extension by agreement the same way the interrogatory statute does — get it in writing.

Producing the documents

CCP 2031.280(a) is short and frequently overlooked:

Any documents or category of documents produced in response to a demand … shall be identified with the specific request number to which the documents respond.

Not merely produced as kept in the usual course of business — labeled to the request. California departs from the federal option here: FRCP 34(b)(2)(E)(i) lets a party produce documents as they are kept or organize and label them to correspond to the categories. California requires the labeling.

(b) When: on the date specified in the demand, unless an objection was made to that date, or on the date agreed under CCP 2031.270.

(c) and (d) — ESI form. Where the responding party objects to a specified form, or no form was specified, it "shall state in its response the form in which it intends to produce each type of information." Absent agreement or order: where no form is specified, production is "in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable," and "a party need not produce the same electronically stored information in more than one form."

(e) Translation: where necessary, the responding party — "at the reasonable expense of the demanding party" — shall through detection devices translate data compilations into reasonably usable form.

Clawback: 30 days to contest

CCP 2031.285 is California's privilege clawback provision, and it imposes duties on the receiving party immediately.

(a) The party claiming privilege or work product over produced ESI "may notify any party that received the information of the claim and the basis for the claim."

(b) After notification, the receiving party "shall immediately sequester the information and either return the specified information and any copies … or present the information to the court conditionally under seal for a determination of the claim."

(c)(1) Before the motion is resolved, "a party shall be precluded from using or disclosing the specified information."

(c)(2) A party who received and disclosed the information before being notified "shall, after that notification, immediately take reasonable steps to retrieve the information."

(d)(1) The deadline: a receiving party who contests the claim "may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal."

Thirty days, and the information must be preserved until the claim is resolved.

Missing the deadline

CCP 2031.300(a): a party who fails to serve a timely response "waives any objection to the demand, including one based on privilege or on the protection for work product."

Relief requires a motion and both conditions — a subsequent response in substantial compliance with the content sections, and a failure that was the result of mistake, inadvertence, or excusable neglect.

(b) The demanding party may move for an order compelling response, and (c) sanctions are mandatory against whoever unsuccessfully makes or opposes that motion. Disobeying an order exposes the party to issue, evidence or terminating sanctions.

As with interrogatories, there is no deadline on a motion to compel a response — the 45-day clock runs only from a verified response, and a party who served nothing never started it.

The three motions

California gives the demanding party three distinct motions, and picking the wrong one wastes a hearing.

CCP 2031.310(a) lists the three grounds for a further response:

(1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.

And it carries an extra requirement — subdivision (b)(1): the motion "shall set forth specific facts showing good cause justifying the discovery sought by the demand." That is a burden the interrogatory equivalent does not impose. A meet and confer declaration is required, and the court may accept "a concise outline of the discovery request and each response in dispute" in lieu of a separate statement.

The 45 days — subdivision (c): unless notice is given "within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing," the demanding party waives the right to compel a further response.

CCP 2031.320 covers the case people forget: the response promised production and it never came. That is not a further-response problem, and it has no 45-day limit. Sanctions are mandatory against whoever unsuccessfully makes or opposes the motion, and disobedience exposes the party to issue, evidence or terminating sanctions.

The ESI safe harbor appears in all three sections: absent exceptional circumstances, the court shall not impose sanctions for failure to provide electronically stored information "lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system."

How California compares

A short checklist

Demanding

1. Set the inspection date at least 30 days out — five in an unlawful detainer.
2. Designate items specifically or particularise categories reasonably. A category that is neither is objectionable on its face.
3. Specify the ESI form per type if you care about the format.
4. Save your supplemental demands — two before a trial date is set, one after.
5. Pick the right motion. No response, inadequate response, and broken promise to produce are three different motions with different deadlines.
6. Calendar 45 days from the verified response for any further-response motion, and put good cause facts in it.

Responding

1. Calendar 30 days, and answer each item with one of the three permitted responses.
2. If you agree to produce, say you will produce everything in the category to which no objection is made.
3. If you cannot comply, affirm the diligent search, state which reason applies, and name whoever has the documents.
4. Identify with particularity what you are withholding, and log privilege claims with enough facts to evaluate them.
5. Label the production to the request numbers. CCP 2031.280(a) requires it.
6. Never let the deadline pass. A late response waives privilege along with everything else.
7. If privileged material goes out, notify promptly — and if you receive such a notice, sequester immediately and calendar 30 days.

Where these sections live

• CCP 2016.040 — Meet and confer declaration
• CCP 2031.020 — When a demand may be made
• CCP 2031.030 — Form of the demand
• CCP 2031.050 — Supplemental demands
• CCP 2031.210 — The three permitted responses
• CCP 2031.220 — Statement of compliance
• CCP 2031.230 — Representation of inability to comply
• CCP 2031.240 — Objections and privilege logs
• CCP 2031.260 — Time to respond
• CCP 2031.280 — How documents are produced
• CCP 2031.285 — Clawback of privileged ESI
• CCP 2031.300 — Failure to respond; waiver
• CCP 2031.310 — Motion to compel further response
• CCP 2031.320 — Motion to compel compliance

This page explains what the Code says. It isn't legal advice, and the separate-statement requirements in the California Rules of Court are outside what this site reproduces.