California Civil Litigation: Study Guide by Susan Burnett Luten

Author:Susan Burnett Luten [Luten, Susan Burnett]
Language: eng
Format: epub
ISBN: 9781428318489
Amazon: 1428318488
Publisher: Cengage Learning
Published: 2008-12-31T06:00:00+00:00

OBTAINING AND USING TANGIBLE EVIDENCE

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In federal court matters, the written response is due 30 days after service of the demand if by hand, or 33 days if by mail. The inspection can be any time after the last date for serving a written response.

These calendaring deadlines can be a critical aspect of the discovery process, since a demanding party may be planning to complete his inspection by a certain date; his discovery plan should reserve adequate time to receive the written responses and complete the inspection.

Format

As in other types of discovery, the respondent may seek protective orders to relieve him of his obligation or may object to all or part of the inspection.

If protective orders are not sought, the respondent must provide a written response within the time permitted. The purpose of the written response is to state whether the respondent agrees to the inspection or objects to the inspection. If no written response was required, the other parties would not know until the date set for inspection whether inspection would be permitted and might be put to some expense or inconvenience.

The failure to timely serve the written response waives all objections. In state court, a belated response “in substantial compliance” may result in relief from waiver if the respondent notices a motion for relief and provides evidence excusing his delay. Acceptable grounds include mistake, inadvertence, and excusable neglect.

The written reply must consist of an agreement to comply with the demand, objections to all or part of the demand, or an explanation of an inability to comply.

An agreement to comply must confirm that the items described in the demand are in the respondent’s custody and control and that the inspection will be permitted, subject to any objections. The respondent may not provide conditional agreement as an attempt to limit the inspection unilaterally. Exhibit 17–2 is a response to a request for inspection in a federal court action.

Objections may be made to any part or all of the demand. The respondent may object that the form of the demand is improper, that the items sought are irrelevant or privileged, or that the production of the items would be oppressive and burdensome. Objection may be made that the items sought are too fragile for inspection, testing, or other type of physical examination. A better approach to resolve such problems is a stipulation between counsel to limit the inspection. If no stipulation is reached, a motion for protective order should be made.

In state court practice, the written response is verified and served on all parties who have appeared. In federal court practice, the written response need not be verified but is served on all parties who have appeared. The demanding party is served the original in both state and federal court practice.

E N F O R C I N G T H E D E M A N D

If a written response is inadequate or not timely served, or if any items sought are withheld, the demanding party may make a motion to compel further responses to demand for inspection and for monetary sanctions.

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