On July 31, 2023, the Second Appellate District issued its decision in Pollock v. Superior Court of Los Angeles County (Case No. B321229) holding that, unlike a response to a production demand, a document production does not have to be verified. Previously, the language in the Code of Civil Procedure § 2031.210 created ambiguities when a party responded to a production demand with a statement of compliance. Namely, parties were left unsure if a statement of compliance must identify the specific request to which each document is responsive. Further, while Bates stamping has become common practice it was never clear under the statute whether it was required. The court clarified these issues in Pollock. Specifically, the court held that documents do not need to be Bates labeled through the use of sequential page numbering and a statement of compliance in response to a production demand need not identify the specific request to which the document will pertain.

Background

The California Code of Civil Procedure § 2031.210 mandates that a response to a demand for production include “[a] statement that the party will comply with the particular demand for inspection” or a representation that the party lacks the ability to comply or an objection. Additionally, § 2031.280 requires that any documents produced in response to a demand must be identified with the specific request number to which the documents respond.

Pollock brought suit against the directors and staff of a structured sober living facility for dependent adult abuse. Pollock’s attorney produced a number of documents before any discovery was served. Several weeks later, Pollock was served with requests for production of documents. He responded to the requests but failed to identify which documents would relate to which specific requests in his statement of compliance. Instead, Pollock responded that he had “already produced all responsive documents.” He did not identify the documents previously produced and never supplemented his response. He did later provide a table that listed the documents by Bates number and included which documents applied to which requests. In the trial court, defendants filed a motion to compel further responses and argued that Pollock’s responses were deficient because he was required to “identify the documents responsive to the request and the response must be verified.” In response, Pollock argued that his production need not be verified and that his statement of compliance responses to the document demand did not need to match the documents to the requests. The trial court disagreed and found this statement of compliance to be a violation of Code of Civil Procedure § 2031.210 and sanctioned him for misusing the discovery process.

On appeal, the Second District disagreed and held that a statement of compliance does not need to identify the specific request to which the document will respond in order for the response to be compliant with the Code of Civil Procedure. The court further determined that there is no requirement that a document production be verified or even Bates labeled. Lastly, the court held that Pollock had not misused the discovery process. He had verified his request for production responses and he later provided a table that listed which documents applied to which requests. Thus, Pollock was substantially justified for opposing the motion to compel and sanctions should not have been awarded.

Practical Guidance and Takeaway

Distilled down, this new authority provides three new clarifying rules when responding to requests for production of documents. First, stating that a party has “already produced all responsive documents” is a code-compliant response so long as a table or other document is provided identifying which documents are responsive to which request number. This clarifies the previous uncertainty as to whether or not referring to a prior production or response is a code-compliant answer to a document demand. Second, a document production itself does not need to be verified. While as a matter of practice, a client can verify the production this is not required under the Code per Pollock. Third, Bates labeled documents are not required. Though this seems to have become common place, especially in large productions, stamping the documents is not required under the Code.