How often do you see this objection? Irrelevancy is one of the garbage objections that parties throw out in response to discovery.  Do you wonder if opposing counsel actually understands what is relevant in discovery?  Did you ever question if opposing counsel ever read the statute let alone the case law? So, what can you discover…

Code of Civil Procedure  §2017.010 titled “Matters subject to discovery” states

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. [Emphasis added]

Relevant to the subject matter There is no precise definition as to what “relevant to the subject matter” means.  However, the court in Bridgestone/Firestone, Inc. v. Sup. Ct (1992) 7 CA4th 1384, 1392 held that it is broader than relevancy to the issues which determines admissibility at trial. The court in Gonzalez v. Sup. Ct. (1995) 33 CA4th 1539, 1546 stated that for discovery purposes, information should be regarded as “relevant” to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2025) at 8:66-8:66.1

Reasonably calculated to lead to admissible evidence   Admissibility is not required.  The test is whether the information sought might reasonably lead to other evidence that would be admissible.  Davies v. Sup. Ct. (1984) 36 C3d 291, 301.  The statutory language makes it clear that the concept of relevancy is broader that of “admissibility into evidence.” A party is entitled to discovery information (if it not otherwise subject to a valid objection) that may constitute, heresay or inadmissible opinions and conclusions. California Civil Discovery Practice (CEB 4th Ed. 2025) §1.36 citing Smith v. Superior Court (1961) 189 CA2d 6 and Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355, 359.  The possibility that the subject matter may be inadmissible at trial is not a ground for objection if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.  Chapin v. Superior Court (1966) 239 CA2d 851.

Parties will often use the “relevance” objection to try and frame the issues and set up a motion for summary judgment.  In some areas of litigation, notably insurance litigation, landlord tenant habitability and employment, the goal may be to avoid embarrassing statements that could be lurking in files where they were made not expecting them to be public.  Or it can be a tool to limit discovery and avoid large bills for voluminous document production.  Courts will take into consideration the size and complexity of the case with regard to the burden and value of the information sought.  Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2025) at 8:66.2 citing Bridgestone/Firestone, Inc. v. Sup. Ct (1992) 7 CA4th 1384, 1391  So, be mindful and be prepared to argue relevance and burden simultaneously.  

Below are some specific examples of relevant discovery: 

  • Information that relates to a claim or defense of any party. California Civil Discovery Practice ( CEB 4th Ed. 2025) §1.38  If it relates to any cause of action or affirmative defense, it is likely discoverable.
  • The names and locations of witnesses are discoverable.  See CCP §2017.010 An objection on third party privacy rights will usually not be sustained, but the court may grant a protective order limiting who can see the information (i.e., parties only, attorney’s eyes only) depending on the circumstances. 
  • Fishing trips are permissible. Just be prepared to respond to the question, “What are you fishing for?”  The court will take into consideration the discovery method used and the burden and cost to the responding party.  Greyhound Corp. v. Sup. Ct. (1961) 56 C2d 355, 359.   Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2025) at 8:72 – 8:72.2.  
  • A party cannot prevent discovery by stipulating to whatever issue is involved.  See Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2025) at 8:70 – 8:71.  For example, you cannot deny producing plaintiff’s prior or subsequent employment records in a harassment case because you are not making a wage loss claim.  There may be other information in the employment records that may lead to admissible evidence.  
  • It is not required that a pleading be legally sufficient for information pertaining to its subject matter to be considered relevant.  Discovery may be used to obtain information that is both relevant to the subject matter of a defective pleading and necessary to cure the defect. California Civil Discovery Practice (CEB 4th Ed. 2025) 1.39 citing Keely v. Price (1972) 27 CA3d 209, 216.

Court’s Analysis 

The party asserting the objection “irrelevant’ has the burden of persuasion in establishing good cause as to why the discovery should not be responded to. Coriell v. Superior Court (1974) 39 CA3d 487.  

In determining the proper scope of discovery, the court conducts a fact-intensive process requiring the application of “reason, logic and common sense.” Lipton v. Sup. Ct. (1996) CA4th 1481, 1490-1491.  

Doubts about relevance should ordinarily be resolved in favor of permitting discovery. California Civil Discovery Practice (CEB 4th Ed. 2025) §1.37 citing Sheperd v. Superior Court (1976) 17 C3d 107, 120 (overruled in part on other grounds.)

REMEMBER—If you can articulate why, you think the information might lead to the discovery of admissible evidence then you should be able to discover it. 

Over the years, I have heard numerous motions for issue, evidence and  terminating sanctions. I found that it is difficult to rule on motions for issue and evidence sanctions if the Separate Statement is not complete. If the Separate Statement does not fully explain what you are asking for and specifically describe the numerous discovery requests and the deficiencies in the responses you received regarding the specific issue or evidence your requesting an order on, the record will not allow me to recommend sanctions beyond monetary sanctions. 

I have found that the following format for the Separate Statement that was the most useful for me to rule on these motions should be as follows:

         *       ISSUE or EVIDENCE SANCTION TO BE DETERMINED.

State exactly what issue or evidence sanction you want the court to grant with specificity. Be sure that the issue or evidence sanction exactly tracks the discovery sought and does not ask for something more than a proper answer to the discovery requested would have provided.

         *       List each written discovery request sent to and deposition question asked of responding party that supports your request for the issue or evidence sanction.

         *       Following each request, state the response that was not fully responsive that supports your request for the sanction.

         *      WHY THE ISSUE or EVIDENCE SANCTION SHOULD BE GRANTED.  

Don’t do this for each individual written discovery request and deposition question like you would do for a regular motion to compel further responses. Your goal is to show the cumulative effect of the opposing failure to provide proper discovery responses to support your argument for the issue or evidence sanction.

For the opposition to a issue or evidence sanction motion, the opposing party should add to the Separate Statement stating: 

         *       WHY THE ISSUE or EVIDENCE SANCTION SHOULD NOT BE GRANTED 

The opposing party should list every discovery response either it be an interrogatory answer, document production, request for admission or a deposition answer that shows the information was provided in discovery.  Even if there wasn’t a response or the response wasn’t complete to the specific discovery device in the Separate Statement, the information may have been provided in response to another discovery device thus defeating the motion. If the information has not previously been provided in discovery, then serve updated verified discovery responses with your opposition. The further discovery response could defeat the motion for issue or evidence sanction.

Having reviewed thousands of Motions to Compel Further Responses over the years, I rely heavily on the separate statement filed with these motions.  Unfortunately, I find that many of the separate statements are deficient and not in compliance with Rule 3.1345 of the California Rules of Court.  This inevitably hurts the moving party as I search for the information that should have been in the Separate Statement. However, beware, Courts routinely deny these motions when the separate statement fails to be in compliance with CRC, Rule 3.1345.

According to California Rules of Court, Rule 3.1345(a) any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

  • To compel further responses to requests for admission;
  • To compel further responses to interrogatories; 
  • To compel further responses to a demand for inspection of documents or tangible things; 
  • To compel answers at a deposition; 
  • To compel or to quash the production of documents or tangible things at a deposition;
  •  For medical examination over objection; and 
  • F or issue or evidentiary sanctions.  (Note: not required for terminating sanctions, but is helpful.)

Below is Paragraph (c) of Rule 3.1345(c) with emphasis which makes it clear what information needs to be in your separate statement: 

  • The separate statement provides all the information necessary to understand each discovery request and all the responses to it that are at issue.
  • The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.
  • Material must not be incorporated into the separate statement by reference.
  • The text of the request, interrogatory, question, or inspection demand must be included.
  • The text of each response, answer, or objection, and any further responses or answers must be included.
  • A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute must be included
  • The statement must include text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it.
  • If the response to a particular discovery request is dependent on the response given to another discovery request, then the other request and the response to it must be included
  • If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

So, after reviewing the onerous requirements of Rule 3.1345(c) this is an example of what your separate statement should look like for Form Interrogatory #17.1.

MOTION TO COMPEL FURTHER RESPONSE TO FORM INTERROGATORIES

INTERROGATORY 17.1

17.1  Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a)     state the number of the request;

(b)    state all facts upon which you base your response. 

(c)     state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d)    identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

  • DEFINITIONS:

         YOU OR ANYONE ACTING ON YOUR BEHALF includes you, your agents, your employees, your insurance companies, their agents, their employees, your attorneys, your accountants, your investigators, your experts, your consultants, and anyone else acting on your behalf.

         ADDRESS means the street address, including the city, state, and zip code.

         PERSON includes a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or public entity.

         DOCUMENT means a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, Photostats, photographs, electronically stored information, and every other means of recording upon any tangible thing and form of communicating or representation, including letters, words, pictures, sounds, or symbols, or combinations of them.

  • SUMMARIZATION OF OTHER RELEVANT DOCUMENTS

         Summarize all other documents which the particular discovery request is dependent on (i.e., applicable paragraph of the complaint).

     and the response verbatim and include all applicable  definitions

RESPONSE

         State the response verbatim.

WHY A FURTHER RESPONSE SHOULD BE COMPELLED

         Do your real argument here.  Be detailed in the law as to why the objections are garbage.  Apply the facts of your case to show why the information you are seeking is discoverable. Be sure to insert your arguments from the points and authorities

REMEMBER: A Separate statement, when done right, can be a party’s greatest advantage in winning a motion to compel further responses.

Production of documents request

Most discovery disputes involve requests for production of documents.  This is because there are specific requirements for a party to properly respond to the request which has been the subject of many of my blogs, including a responding party’s obligation to state whether the documents you are seeking ever existed and where they are now as well as which request the documents being produced are responsive. However, there is nothing more combative in discovery than parties arguing over objections to a document request and the adequacy of the privilege log–assuming one was even provided. 

Continue Reading Ask The Court to Perform an In-Camera Review of the Documents Being Withheld On the Claim of Privilege

California law expressly provides for discovery of information about the evidence and contents of any insurance agreement under which a carrier may be liable to satisfy all or part of a potential judgement or to indemnify or reimburse payments made to satisfy the judgment.  C.C.P. §2017.210.  The statute also provides for discovery of whether coverage of the claim involved in the action is disputed, “but not as to the nature and substance of that dispute.”  C.C.P. §2017.210.

Continue Reading Is Insurance Information Discoverable?

In the case of City of L.A. v. PricewaterhouseCoopers, LLC (2024) 17 C5th 46 the California Supreme Court unanimously held that the Discovery Act gives courts independent authority to impose sanctions for discovery abuses and patterns of discovery abuse provisions. This was a complete reversal of the Court of Appeal’s decision which had limited the ability to obtain sanctions to the specific discovery device decision. In their decision, the Supreme Court stated that

“Under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for the City’s pattern of discovery abuse. The court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery.” at pages 50-51. 

Continue Reading The Court has Inherent Power to Impose Discovery Sanctions

We all have been doing Zoom depositions for the last four years.  As we have limped along, we have developed implied rules and protocols for having these depositions, but there are no written rules or guidance on how these depositions should be conducted.   

Justice James Lambden (Ret.) who often is appointed as a Discovery Referee, has the answer.  When he is the Discovery Referee, he serves on all parties his “REMOTE (HYBRID) DEPOSITION PROTOCOL” prior to depositions being conducted.  When Justice Lambden attends the deposition, he confirms on the record that all parties have read and understands the protocol.  He has found that his protocol aids him and the parties in conducting a clean Zoom deposition.  

Continue Reading ZOOM DEPOSITIONS—What is the Protocol

I recently received an inquiry regarding Code of Civil Procedure section 2023.050, which now states that the court SHALL impose sanctions of $1000 payable to the requesting party regarding requests for production of documents in deposition notices or document demands.  These were the facts:   

Plaintiff brought a Motion to Compel Further Responses to Requests for Production of Documents.  Defendant opposed the motion and won.  The Judge then sanctioned the Defendant $1000.00 stating that he had no choice but to sanction the defendant pursuant to CCP 2023.050 as Plaintiff asked for sanctions and Defendant didn’t.  The Judge also told defense counsel that if Defendant had asked for sanctions, he would have awarded Defendant the $1000.00.  Defense counsel was bewildered with the imposition of sanctions and asked me if the Judge was correct. 

No, the Judge was not correct.  Code of Civil Procedure §2023.050 states:

Continue Reading Should I have been Sanctioned?

Consider the following question I received from a defense attorney.

“Plaintiff timely served updated verified responses to Form Interrogatories, Set #1, #6.4, 8.4, 8.6, 16.1- 16.8 and 17.1 (RFA #5) pursuant to a Supplemental Interrogatory request.  Instead of providing the information requested in the interrogatories, Plaintiff responded to each of the interrogatories with the following response: 

Pursuant to CCP §2030.230, Plaintiff identifies the documents Bates Stamped 00001 – 00290 she produced on March 1, 2024

The email went on to ask if Plaintiff’s response was proper. The answer is no.

Continue Reading Can I Reference Documents When Answering Interrogatories?

There are two significant changes to the Discovery Act this year: C.C.P. §2016.090 and C.C.P. §2023.050.  My California Civil Discovery: Chart for the Everyday Litigator has been updated to reflect these changes. 

Continue Reading Changes in Attitude—Nothing Remains Quite the Same