Fixing our broken civil discovery culture: The problem of 'any and all writings evidencing or related to'

In most cases, a request for production of documents directed to an entity calling for production of "any and all writings (defined under Evidence Code section 250) evidencing or relating to" an RFP is doomed from the start. The request is virtually limitless, will not be taken literally or seriously by the recipient, is likely disproportionate to the needs of the case, creates uncertainty about search obligations, dramatically increases review expense, sweeps in marginally relevant or irrelevant material, and causes difficulty in certifying compliance. Propounding such a request will surely result in a waste of time and money.

The request will inevitably, and justifiably, bring on a cascade of objections. If the discovery process works as it should, the overbroad request will bring about a "meet and confer"--30, 60 or 75 days later--where the parties can then have an intelligent discussion about what the propounding party really needs and what the responding party can really produce. That's if the meet and confer occurs thoughtfully and in good faith. Then there will be at least another 30 to 60 days for compliance. It is entirely foreseeable that two to six months will have been burned up unnecessarily.

And if the meet and confer does not work as designed, as too often happens, all that results is an exchange of hostile letters or emails. Each side proclaims its "entitlements" under the Discovery Act. The next thing is a motion--to compel or for protection--that is set months later. Now, eight or more months have burned up unnecessarily and the judge is very grumpy towards both sides--and for good reason.

By about the third year of practicing civil law, lawyers know what I just wrote is true. Why, then, do counsel persist in making such overbroad requests for production? It is part of our broken discovery culture. We do it because we have always done it. And far too few experienced practitioners take the time to teach the less experienced the better ways. 

The propounding party may unwisely believe that the broad "any and all" discovery will protect it from being sandbagged at trial. After all, if you ask for everything, you will get everything, right? Experience suggests otherwise. It often has the opposite effect. There is no substantive response to the discovery because it is caught up in the labyrinth of discovery meet and confer and motion practice that may never be truly resolved. Time runs out and the material counsel really needs is never obtained in discovery.

There is a better way. First, ditch the overbroad "any and all" and "evidencing or related to" constructions in favor of something reality-based with which the responder can actually comply. Example: "produce the documents that you utilize in your business practices to document the existence of..." Now you are asking your opponent for documentation it cannot say it cannot understand or find.

Second, take smaller, well-described bites. Define your categories narrowly, using language that people in the business, not lawyers, use. Use realistic time periods. Do not ask the other side to: "produce any and all documents that evidence or relate to your production and marketing of the product that is the subject of your complaint from 1960 to the present." Instead, ask for "the documents you utilize in your business to account for the number of units of the product produced on a monthly, quarterly or yearly basis since 2019." Or "the documents you utilize in your business to describe your marketing of the product to distributors in the Midwest during the period 2019 - 2024." Or "writings created between June 2019 and July 2022 evidencing communications between Juanita Rodriguez and Art Vandelay, a subject of which was problems in the functioning of the altimeter."

Do not permit your opponent an easy out based upon your badly drafted requests. If you are reasonable, the opponent's unreasonable objections will make it appear ridiculous. ("Objection: the word 'is' is vague and ambiguous." Seriously, you want to defend that to a judge on a motion?) Good counsel will not permit that to occur. And you will actually obtain the information you need far sooner, at lower expense, and less emotional wear and tear.