[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Where a producing party argued, ten months after discovery was propounded, that a motion to compel was “unnecessary” because it had agreed to produce the information at some unspecified time, the court held that the offer was meaningless. Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, 2025). It wrote: “As plaintiff rightly argues, [a unilateral] agreement to produce documents is meaningless if no clear timeline for production is set and the documents are never actually produced.”
[A unilateral] agreement to produce documents is meaningless if no clear timeline for production is set and the documents are never actually produced.
Estate of Wright v. County of Stanislaus, 2025 WL 3035770 (E.D. Cal. Oct. 30, 2025).
Mr. Wright died at a detention center while in custody of the county sheriff. His estate propounded discovery; however, defense counsel stated that “due to the sheer volume of material (and despite having two paralegals working on this discovery), I can’t produce amended/supplemental responses, additional documents, and a privilege log by today; I anticipate this can be completed by July 18, 2025.” That milestone was not met.
After numerous communications, the parties conducted a telephone conference: “During that call, defense counsel stated that she could not estimate when the County would provide amended responses and a privilege log of withheld documents, [and] could not answer if there was outstanding discovery related to Wright’s death because she had not gone through all the documents….” [emphasis added].
After another production, defense counsel wrote that “the records have not been produced by the estimated production dates due to their volume…. Counsel advised that she could not give an estimate on additional production but was reviewing the records and producing them on a rolling basis….” [emphasis added].
Plaintiff moved to compel. In part, plaintiff argued that, “while defendant has agreed to produce outstanding discovery, that agreement does not permit defendant to produce documents whenever it wants….” [emphasis added].
The court wrote: “While 230 gigabytes of data sounds impressive, it is an essentially meaningless quantifier of the actual volume of the materials at issue when the data size of a file can vary immensely depending not only on what type of file is at issue (e.g., text document, photograph, video, etc.) but also upon various other factors unique to each file (e.g., length, format, resolution, frame rate, compression, etc.).” It held that defendant had not substantiated its assertion of undue burden after ten months of delay.
As to the open-ended nature of defendant’s offer, the court found it “meaningless,” and it wrote: “Because the court has no clear understanding of the volume of responsive materials that have yet to be produced it is unable to determine a realistic timeline for compliance with this order. A hearing to discuss a schedule for production in accordance with this order will therefore be set. The hearing will be vacated in the event the parties submit a stipulated schedule for production.”
There is no “blank check” in responding to document discovery: “It is implicit that the lawyer who has requested, and received, the professional courtesy of an extension of time in which to answer interrogatories has a concomitant professional obligation to meet the agreed upon extended deadline. Indeed, the failure to do so absent extenuating circumstances may well violate Rule 3.4(d) of the Rules of Professional Conduct.” Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 654 (D. Md. 1997).
There is no “blank check” in responding to document discovery.
Michael Berman, E-Discovery LLC.
“Once a party receives a request for production of documents, Fed.R.Civ.P. 34(b) is very clear about what must be done. This rule requires that a written response shall be served within 30 days after the service of the request for production of documents.” Id.
In reality, however, this simple procedure is often ignored. Instead, some attorneys comply with half of what Rule 34(b) requires—they file a written response, but do not agree to the requested time, place and manner of production, or, as Professor Wright suggests, propose a reasonable alternative method. Rather, they give the vague assurance that the requested documents will be produced “in the future at a mutually agreeable time and place.” This practice assures continued wrangling and negotiating before the documents ultimately are produced, and usually, in the process, the party who was obligated to respond will insist upon extracting some reciprocal concession from the opposing party for doing that which Rule 34(b) already required him or her to do. This, of course, frequently derails the discovery process, because parties often wait to schedule depositions until after document production has occurred. [emphasis added].
Id.
“Worse still, some attorneys employ the foregoing procedure in a calculated effort to manipulate the rules of procedure, reasoning that by serving a written response, albeit one which does not comply with Rule 34(b), they are insulated by Local Rule 104.8 from a motion to compel being filed immediately with the court.” Id.
Judge Grimm cautioned:
However, those who practice this artifice should beware. Fed.R.Civ.P. 37(a)(3) provides that an evasive or incomplete answer or response to a discovery request, including a request for production of documents, “is to be treated as a failure to disclose, answer, or respond.” (Emphasis added). Thus, a response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond. The procedures set forth in Local Rule 104.8 are therefore inapplicable, and the moving party is free to file a motion to compel and for sanctions pursuant to Fed.R.Civ.P. 37(a), if good faith efforts to resolve the dispute with the opposing party have failed.
Id. at 656 (emphasis added).
The Lee Court wrote: “In short, there are only three appropriate responses to a request for production of documents: (1) an objection to the scope, time, method and manner of the requested production; (2) an answer agreeing to the requested scope, time, place and manner of the production; or (3) or a response offering a good faith, reasonable alternative production, which is definite in scope, time, place or manner.” Id. (emphasis added).
In the words of the Wright court: “As plaintiff rightly argues, [a unilateral] agreement to produce documents is meaningless if no clear timeline for production is set and the documents are never actually produced.”
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