How to Handle “No Responsive Documents Exist” in Discovery

By Jasleen Singh

Altair Law LLP

You serve requests for production. Back come responses: “no responsive documents exist.” But that seems perplexingly wrong. You were certain they would, or at least, should.

This is a familiar response from major international corporations like auto manufacturers or tech companies, that have entities in the U.S. and abroad. Think of Ford, Volkswagen, Samsung, Kia, etc. The premise is that the U.S. entity is “just a distributor”, while the design, manufacturing, and quality roles all conveniently belong to an overseas parent company.

The problem is this is rarely true. To sell a product in the U.S., the national companies must comply with U.S. federal regulations and report to domestic agencies. That means they either have on hand the necessary engineering, safety, design, and warranty information, or can readily receive, transmit and rely on it. Employees in the U.S. and abroad are interfacing daily. Across the world is just an email away. The data evidently exists for the purpose of business. Somehow though, for the purpose of litigation, it either “never existed” or is too far out of reach.

This tactic is not new. It has adapted over the last thirty years to fit the decade. In 1996, a physician claimed responsive documents from the FDA or independent review board were “stolen”. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525.) In 2006, an automaker concealed crash-test data for years. In 2022, an automaker performed an ESI search in a way that was sure to return zero hits. (Higginson v. Kia Motors America, Inc. (2026) 118 Cal.App.5th 316.)

And in 2025, I had a case against another auto manufacturer, Volkswagen, that claimed it could not produce any documents related to its design, safety, and manufacturing because they did not exist. Instead, Volkswagen’s verified discovery responses swore the documents belonged to Volkswagen AG (Germany) and were not within its “custody, possession, or control.”

So, what next?

Step One: Hold Your Ground

Mandate compliance with the Civil Discovery Act. When a party claims no documents exist, Code of Civil Procedure § 2031.230 requires:

(1) an affirmation that a “diligent search and reasonable inquiry” was undertaken;

(2) a specific explanation as to why they are unable to comply—is it because the requested item “never existed, has been destroyed, lost, misplaced, or stolen, or has never been or is no longer in the possession, custody or control of the responding party”; and

(3) a statement setting forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.

If the responses do not comply with these requirements, send a meet and confer letter informing counsel that they are obligated to make a reasonable and good faith effort to obtain responsive information (Regency Health Services, Inc. v. Superior Ct. (1998) 64 Cal.App.4th 1496) and that “[a] party cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Superior Court (1978) 84 Cal.App.3d 771, 782.) If after meeting and conferring, a party refuses to provide fully compliant responses that satisfy § 2031.230 (1)-(3), affirming the requisite search was undertaken, explaining why documents don’t exist, and identifying who may have responsive information, then file a motion to compel.

Responses must also be verified. (Code Civ. Proc. § 2031.250; Pollock v. Superior Court (2023) 93 Cal.App.5th 1348.). If a party is not willing to verify or swear why no documents exist, then you’ve uncovered an inconsistency. File a motion to compel.

Consider also serving an early demand for initial disclosures under Code of Civil Procedure § 2016.090. This would require all parties in the action to disclose the names of persons likely to have discoverable information and all documents, ESI, and tangible things in their custody possession and control that are relevant to the subject matter of the action. If the responding party fails to include important documents like design, manufacturing, or safety information that would obviously be relevant, it can be used as supporting evidence of a pattern of discovery misconduct in a later motion to compel or for sanctions.

This is not hyper technical, it is strategic. It forces the responding party to either own up to their evasive tactics, or double down on their answer. If they double down, a motion to compel will likely be unsuccessful. But that is not the end. Pinning them to their answer lays the foundation for Steps Two and Three below.

Step Two: Think Outside the Box

When the responding party swears no documents exist, ask yourself: if they don’t have them, then who does?

Consider Higginson v. Kia Motors America, Inc. ((2026) 118 Cal.App.5th 316.) The plaintiff sued Kia Motors America because his 2013 Kia Soul had serious engine defects. Plaintiff requested Kia to produce internal documents for any investigations it conducted into those defects. Kia’s verified responses complied with § 2031.230 in stating that it could not produce such documents because they “never existed.” But they did…

Plaintiff’s counsel searched the National Highway Traffic Safety Administration (NHTSA) database and found a letter from Kia itself agreeing to produce documents on the same engine defects. The records Kia swore did not exist were sitting on a federal agency’s public website.

Similarly, in Vallbona v. Springer, the defendant physician Dr. Springer operated a clinic specializing in laser cellulite removal. The clinic solicited patients by falsely representing that it was close to obtaining FDA approval for the procedure. The plaintiffs there requested documents relevant to Dr. Springer’s FDA applications but were told no such documents existed. At his deposition, Dr. Springer testified he never searched for the documents and then later testified that they were “stolen” in a burglary. On the second day of trial, Dr. Springer found responsive documents and brought them to court. Specifically, he brought a correspondence with a federal employee from the Health and Human Services Department.

The lesson: look elsewhere. Federal regulators and agencies—NHTSA, the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), Occupational Safety and Health Administration (OSHA), and Environmental Protection Agency (EPA)—maintain searchable databases of manufacturer submissions, recalls, and enforcement correspondence.

Consider issuing Freedom of Information Act (FOIA) and California Public Records Act (CPRA) requests. Subpoena third parties. Consult colleagues at your firm and in your network who have litigated against the same defendant who could know what was, and what wasn’t produced in other cases.

A responding party or company that claims no documents exist, while simultaneously corresponding with a federal agency about the same documents, or that has previously produced responsive documents in other litigation, has just laid the foundation for you to file a motion for sanctions, a new trial, or both.

In fact, in Higginson, another attorney at the plaintiff’s law firm had knowledge from a separate, prior case against Kia that Kia had responsive documents related to the engine defects at issue. Had that information been shared sooner, Kia’s discovery misconduct would have surfaced earlier. Collaboration is king.

If those streams run dry, expose the search itself. Consider taking the deposition of the person who performed the search for responsive documents or verified the discovery responses. In Higginson, Kia’s verifier testified at deposition that a search for responsive documents was electronically conducted and was run with search terms consisting of various engine defects that would appear “both conjunctively and disjunctively”. That kind of search would have been acceptable because it would have flagged documents in which any one or more of the search terms appeared, either alone or together with others. But that is not what happened.

Midtrial, Kia admitted it searched only for records referencing the search terms simultaneously, meaning all the search terms had to appear together in the document for it to be identified as a search result. The trial court called this methodology “criminally stupid” and “dead on arrival.” The Court of Appeal added that “any victory achieved by such methods” in this court would be “short-lived and costly.” (Higginson, supra, 118 Cal.App.5th at p. 347.)

When the response is “no documents,” do your own research. Collaborate. Challenge the responding party’s methodology, not just the result. Depose the verifier on search terms, conjunctive vs. disjunctive logic, who ran the queries, and what instructions they were given, and when. The gap between how the search was described and how it was actually run is often where the truth lives.

If any of these sources prove that either the response is false or the methodology a farce, immediately file a motion to compel and/or motion for sanctions.

Step Three: Persist To, Through, and After Trial

If discovery closes and you are still stuck with a “no documents exist” discovery response, you are not out of options—even though you cannot compel production of documents sworn not to exist. (Sherman v. Kinetic Concepts (1998) 67 Cal.App.4th 1152, 1163; Higginson, supra, at p. 349 (trial court stated that if the response is no documents exist, the motion to compel must be denied).)

Keep looking for the inconsistency. If you find it after discovery has closed, file a motion for sanctions. Evidentiary sanctions would prevent the responding party from trying to use the “newly found” forbidden fruit, and issue sanctions would utilize the false verified response as evidence of consciousness of guilt, willful concealment, or knowledge of a defect.

To file a motion for sanctions, violation of a prior discovery order is not required so long as the facts support willful discovery abuse. In Vallbona, Dr. Springer argued plaintiffs waived their discovery demand by not bringing an earlier motion to compel. The Court of Appeal rejected this, holding that requiring a formal order to compel would have been “futile” where the defendant had falsely claimed the documents were stolen. (Vallbona, supra, 43 Cal.App.4th at pp. 1545-1546.) The court called Dr. Springer’s conduct “a total reprehensible violation of this court’s rules, practices, and policies for a litigant to withhold documentation that is the subject of discovery and then surprisingly and unexplainedly find them during the trial.” It imposed an evidence sanction barring Dr. Springer from now introducing the previously withheld documents, and an issue sanction, instructing the jury to take certain facts as established against the defense.

A violation of a prior discovery order was also not required for issue and evidentiary sanctions in Karlsson v. Ford Motor Co. ((2006) 140 Cal.App.4th 1202). There, a five-year-old boy sitting in the rear center seat of a 1996 Windstar was rendered paraplegic after his spine was severed when his body jack-knifed over the lap belt-only seatbelt. There was no shoulder harness in the U.S. model, although Ford had been installing 3-point harnesses in the same seat position in vehicles sold overseas. Ford improperly withheld internal memos and crash test reports showing it had known for 20 years that its lap belts were dangerous. The plaintiff there filed five discovery motions, and while the ultimate motion for sanctions arose out of a failure to comply with a PMK notice, the court looked to the long pattern of Ford’s conduct in persistently refusing to comply with discovery requests. (Karlsson, supra, 140 Cal.App.4th at p. 1202.) The court barred Ford from presenting evidence on warnings and the technical feasibility of a safer seat belt design. The court also vacated its earlier order striking plaintiff’s punitive damages claim, reinstating it on the ground that Ford’s concealment warranted reconsideration. The jury awarded over $30 million in compensatory and punitive damages. The Court of Appeal affirmed. (Karlsson, supra, 140 Cal.App.4th at p. 1202.)

The lesson of Karlsson: each motion you file, even if denied, documents a pattern. The cumulative record supported issue preclusion, evidence exclusion, and the reinstatement of claims the defendant thought it had already won.

Sometimes the truth surfaces even later—after trial. This is where persistence really pays off. Most recently in Higginson, the Court of Appeal reversed a defense verdict, ordered a new trial, and directed the trial court to impose sanctions on Kia to cover Plaintiff’s attorney’s fees and costs for the entire first trial, and appeal. The court found that Kia’s verified responses that no documents exist were “erroneous” and “wrong” and that Kia had obstructed discovery to the extent that it deprived plaintiff a fair trial. This amounted to an irregularity in the proceedings under Code of Civil Procedure § 657(1).

And if you never find sufficient proof to contradict “no documents exist” and to warrant a motion to compel or for sanctions, strategize for trial. Tell the jury. A manufacturer markets, advertises, and sells a product or service to consumers in the United States, but has not a single document to show regarding its design, performance, quality control, or safety. Not one. Expose the absurdity.

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The takeaway spans three decades of California appellate law. When a responding party verifies that responsive documents were stolen, never existed, or are out of reach, the weight of that response lies with them. Hold your ground. Look outside the box. And when the truth emerges—use it.

Corporate defendants who hide the ball are betting that plaintiffs’ counsel will either never source the truth or give up in the process. But by refusing to accept “no documents exist” at face value, we ensure that feigned ignorance is not bliss—and that even if a defendant like Kia “got away with one today, … eventually the court will figure that out, and there will be a way of balancing the scales of justice.” (Higginson, supra, 118 Cal.App.5th at p. 352.)