Chapter 11-3 Requests to Produce (RTPs)

• Jurisdiction: Florida

11-3 Requests to Produce (RTPs)

Although dubbed "requests," RTPs actually impose upon the party to whom they are directed a legal requirement to respond. Failure to respond may be met with motions to compel production, and orders granting motions to compel invite fee awards and/or further sanctions from the court against the non-producing party. Sanctions usually consist of, or include, reimbursement to the movant of reasonable costs and attorneys' fees associated with bringing the motion to compel.⁷ More egregious violations of court-ordered production, such as serial non-compliance with court orders to produce, etc., invite more severe sanctions, including precluding the party from whom the materials were sought from introducing them into evidence at trial; the striking of pleadings; and the entry of either a dismissal of the plaintiff's claim, or a final judgment against the defendant, depending on which party failed to respond as required. Dismissal with prejudice is the ultimate sanction.

11-3:1 Propounding RTPs

Subject to the court's discretion, the rules do not limit the number of RTPs one party may propound upon another, provided they seek production or inspection of materials within the scope of discovery.⁸ RTPs may be served upon a plaintiff any time after commencement of an action, and upon other parties either with service of the summons and complaint, or any time thereafter, subject to a discovery cut-off date, which can be determined by the court or sometimes agreed to by the parties.⁹ Costs associated with the production of documents or other materials are generally recoverable by the prevailing party.¹⁰

11-3:2 Responding to RTPs

Responses to RTPs directed to parties are due within 30 days of service, or within 45 days if served with the summons and complaint.¹¹ The duty to respond extends to all materials within the "possession, custody, or control" of the party to whom the RTPs are directed.¹² In other words, such parties must produce or otherwise respond to the request for any document or material that is within the power of the party to obtain (e.g., documents maintained by third parties such as financial institutions, servicers, attorneys, other agents, etc.). It is not enough that the document is in the physical possession of another, provided the party required to produce the document has sufficient control over the one with physical possession to obtain the document for itself for discovery purposes.

11-3:2.1 Objections

Responses to RTPs need set forth only objections and reasons.¹³ Parties served with RTPs may object to production of documents or other materials on numerous grounds including, but not limited to, the fact that the request seeks materials beyond the scope of discovery, is subject to privilege (e.g., attorney-client; work-product privilege; etc.); or where production of the documents would be unduly burdensome or oppressive. In addition, a party cannot be compelled to generate a document not already in existence at the time production is due.¹⁴

As a matter of good practice, a party asserting objections may want to schedule the objections for hearing. This...