Requests for Production
Requests for Production are commonly issued during the discovery phase of litigation to obtain evidence from the opposing side. The request can seek documents, electronically stored information (hereinafter “ESI”) or other tangible things relevant to the case.
What to Include in a Request for Production
When drafting a Request for Production, you will need to consider the various types of ESI that exist and the locations where the requested information can reside. For examples of types of ESI and hard copy documents to include in your request, see our Litigation Hold Notice Technical Note. There will likely be situations in which you are unsure what discoverable data the opposing party possesses. This type of information can be garnered at the Rule 26(f) conference. Additionally, interrogatories can be served requesting information about what discoverable data exists. Having this knowledge prior to sending your Request for Production will help frame the requests and allow you to be more specific.
Two key components of a Request for Production are the relevance and proportionality of the requests. If requests are too broad, opposing counsel will likely object to the requests or inundate the requesting party with massive amounts of irrelevant documents. Neither of which are beneficial. Therefore, requests should be detailed and specific about the types of materials being requested. Include specific examples of responsive materials that may exist and where you expect the producing party to search for such documents. For example, when requesting electronically stored information, specify that electronic data can reside in any of the following locations: email servers, blackberry devices, smartphones, CDs, DVDs, flash drives, external hard drives, voicemails, databases, backup tapes, file servers, websites, instant messages, chat applications, home computers, workstation/laptops and social media sites. Sending opposing counsel, unclear or vague requests can result in productions missing pertinent information and unnecessary time and energy spent disputing the meaning of a request.
Instructions and Definitions for Requests for Production
Including an Instructions and Definitions section in the request is critical as sometimes important information or sources of data are overlooked by the recipient if not clearly spelled out. See Lexbe’s Sample Request for Production Instructions and Definitions attached.
The Request for Production should also specify the format in which production should be made to avoid the possibility of receiving documents in a format not reasonably usable. Additionally, be sure to specify that documents should be produced with any existing metadata intact. This information should be explicitly stated in the Instructions and Definitions section.
Our Professional Services department can provide assistance with drafting Requests for Production for complex ESI and/or tailoring Requests for Production to your specific case needs. For questions or assistance, please contact Lexbe’s Professional Services department at firstname.lastname@example.org.