Messy Documents“Document Dump” Falls Back on “Dumpster”

We’ve all received copies of documents during discovery and wondered, how am I going to sort out THIS?  Generally, when one expects to receive a large number of documents, it may be better to visit the documents to see how they are stored, review them where they are and limit what is copied, as opposed to just saying “give me everything.”

Sometimes, the documents are stored electronically and there’s no place to visit, as it were.  Other times, the producing party and its counsel don’t want you to visit the documents as stored because they want to control the production and make your life miserable.

In the case of Kayne v. The Grande Holdings Limited (Cal. Ct. App. 2nd Dist. Sep. 2, 2011) No. B224096, a judgment debtor produced over 30,000 pages of documents in a shuffled and disorganized fashion, and failed to produce whole categories of documents that had to (a) exist and (b) in an organized fashion (e.g., accounting records).  After a motion to compel, about 60,000 additional pages were produced, but, again, incomplete and disorganized.

The producing party refused to label the documents in accordance with California Code of Civil Procedure section 2031.280(a), so propounding party had to hire three (3) lawyers to organize the documents by category and date.  (Query:  Would they be able to determine the appropriate category for each?)

In response to a sanctions motion, the producing party claimed that the documents were produced in the order found by the producing party, without supporting evidence.  The trial court gave the producing party the opportunity to present evidence on this point, but it failed to do so.  The proffered declarations failed to spell out who “discovered” the stored documents, when, where, in what condition or explained why they were a jumble.

The appellate court affirmed the trial court’s finding that the producing party was responsible for the disorganized production and was responsible for cost of organizing them because that party had employed a discovery method in a manner that caused undue burden and expense, almost $75,000.

We lawyers may want to keep this case handy to drop into a meet-and-confer letter to send to opposing counsel/party who plays discovery games and to warn our own clients that such games can be costly.

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