More Thoughts on Responding to Document Requests
I started this blog at a time when a major component of my work was discovery. I still believe that cases can be won or lost in discovery, but I also think that there are strategies that parties can take to reduce costs and maximize the impact of their litigation. With some additional perspective, I share some more thoughts.
Different courts have different rules about deadlines in responding to document requests. Some courts, like the federal court in the Eastern District of Virginia, may consider objections waived if they are not asserted in a specific time period. Some jurisdictions also bar blanket objections that purportedly apply to many requests but are not repeated for each one. These kinds of differences make it critical for lawyers to review the applicable rules when they receive document requests.
A lot of lawyers cut-and-paste their document requests or responses, or use forms. I see why they do this: it saves time, and those lawyers may not see a benefit to carefully thought-out, original documents. This can be especially true in a contingency case, where no client is paying by the hour and the goal may to do as little work to get the same result. But well-written responses are helpful in more ways than one. First, cut-and-paste can introduce errors that are easy to miss. Second, since discovery disputes may arise months after the objections, objections that were carefully written may remind the author what the basis of the objection was or clue in a subsequent reader from the same firm. This context makes each objection easier to defend later on.
Clients are often reluctant to gather all relevant documents or to produce documents that are unflattering. Just as it is the job of the lawyer to rebuff unreasonable demands from opposing counsel, the lawyer must also work with the client on discovery. We explain to clients the need to properly gather documents in response to demands. A client may ignore a request or shrug and say she possesses nothing responsive. She may still have responsive documents that opposing counsel can find later. Engaging the client early in discussing her files helps a lawyer discover reasons for the client’s reticence. This allows the lawyer to lodge a proper objection instead of unknowingly waiving grounds for objection or misrepresenting facts.
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In an earlier post, I discussed the process of drafting document requests. But merely asking for documents does not mean that a litigant will get them. Instead, serving a document request on someone often leads to that someone’s lawyer drafting “Objections and Responses” to the request and possibly arguments in court before the requested documents arrive, if they ever do.
Why should you continue to read this post about responding to document requests?
You already read the post about document requests and now you need to know what happens next.
You’re in a litigation and you want to know if you really need to provide all of the documents that your adversary demanded.
You’ve read so much of the news that you just want to read something else.
Image Credit: Administrative burden in Bucharest (Rumania) by Pizarros, 2009.
Litigants Can Object to Document Requests
Just as a party drafts a document request, with numbered requests for documents, the recipient of the request drafts a document with a corresponding numbered list, followed by the response to the request. For each request, the recipient sets forth her objections, if she has any, and states whether she will produce those documents.
The recipient could object to a request by asserting that the document request seeks documents are protected by a privilege, such as the attorney-client privilege. She can also claim that the documents requested are irrelevant to the litigation. Additional objections include a statement that the request is so overbroad that it would be unduly burdensome for her to comply with the request, or that the request is so vague, it is not clear what documents the other party seeks. The recipient may also state that she simply has no documents responsive to a request.
Drafting responses and objections, much like drafting the request, involves a lot of copying and pasting since objections that apply to one request often apply to other requests. Any necessary copying should be done with care and attention.
Litigants “Meet and Confer” About Objections
After the recipient delivers the responses and objections, the party that requested the documents may believe she is entitled to more documents, notwithstanding the objections.
The requesting party often drafts a letter to the recipient, explaining which objections it contends do not apply. That party may also challenge assertion where the recipient claimed no responsive documents. The recipient may send a letter in response. Pursuant to rules like Federal Rule of Civil Procedure 37(a)(1), the parties may have a phone call to discuss what documents will be produced. This process can lead to the parties narrowing their disagreements. Discussions can clarify which arguments are stronger than others and which issues each party takes more seriously.
Often, parties will compromise in discovery to avoid the expense and uncertainty of going to court. For example, if a requesting party says it is entitled to all of a company’s financial records but the recipient believes the requestor is entitled to none, the two may compromise. The company may agree to produce records limited to a short period or to from only one of its subsidiaries—whatever is immediately relevant to the case.
Litigants Can Ask the Court to Decide Discovery Disputes
If the parties cannot agree on what documents need to be produced, the requesting party can file a motion to compel. The requesting party asks the judge to order certain documents be produced. Alternatively, the recipient can file a motion for a protective order. In this case, they ask the judge for an order stating that certain documents needn’t be produced.
Motions to compel can be difficult. The proponent does their best to explain why potential evidence is relevant and important, despite never having seen it. These motions also disclose the proponent’s strategy for how they intend to use the evidence in the litigation, even though that strategy may change as the lawsuit progresses. Still, motions to compel can be persuasive when they explain that party’s need to fully understand its claims or defenses.