Assumes Facts Not in Evidence: A Valid Discovery Objection?

If an objection is worth making, make it a worthy objection.  I still routinely receive responses that object that a request assumes facts not in discovery or not in evidence.  I once wrote that objection was invalid “because, by definition, no facts had yet been entered into evidence because the case had not yet been tried. If this objection were valid then no discovery could ever occur.”[1]

There is more authority specifically rejecting that objection.  In Shakespear v. Wal-Mart Stores a party objected to three requests for production, asserting they assumed “facts not yet established in discovery.”[2]  The court summarily determined it was “not a valid objection to a written discovery request.”  Garcia v. Clark explained “[a]ssuming facts not in evidence may be the basis for an objection during trial or some other evidentiary hearing,” but not during discovery.[3]

[1] July 7, 2014, discussing a specific example.

[2] No. 2:12-cv-1064, 2012 U.S. Dist. LEXIS 205322 (D. Nev. Nov. 5, 2012).

[3] 1:10-cv-447, 2012 U.S. Dist. LEXIS 51771, 2012 WL 1232315 (E.D. Cal. Apr. 12, 2012).