CHAPTER 8 - 8-4 Responding to Production Requests

• Jurisdiction: United States

8-4 Responding to Production Requests

8-4:1 In General

A party must respond in writing to a production request within thirty days after its service³⁵ unless the time is extended due to the manner of service, by the parties' agreement, or by court order.³⁶ Each response must be preceded by the request³⁷ and may include objections and assertions of privilege as allowed by Texas Rule 193.³⁸

There are four proper responses to the substance of a production request: (1) a response agreeing to produce the requested items; (2) a response objecting to the request in its entirety; (3) a response objecting to the request in part, for example, because it is overbroad as to time, place, or subject matter;³⁹ or (4) a response stating that no responsive documents have been identified after a diligent search.⁴⁰ Thus, a response that relevant nonprivileged documents will be produced "to the extent they exist" is improper.⁴¹ So are responses that merely promise to produce the requested documents at some unspecified time in the future or that promise to continue to search for records and supplement responses in the future.⁴²

In addition, under Texas Rule 196.2(b), the responding party "must" specifically state in the written response to each production request whether it is objecting to the time and place for the production or inspection set forth in the production request.⁴³ In doing so, the responding party must state one of three things.

First, if the time and place of the production is acceptable to the responding party and it intends to produce the items then and there, the written response must state that "production, inspection, or other requested action will be permitted as requested."⁴⁴

Second, if the responding party desires to serve its documents with its written response, the response must state that "the requested items are being served on the requesting party with the response."⁴⁵

Third, if the responding party objects to the time or place of the production specified in the production request, the written response must state that "production, inspection, or other requested action will take place at a specified time and place."⁴⁶ In other words, the response must state both the objection and the solution⁴⁷ (i.e., the responding party must state exactly when and where it will produce the items, and then must produce them at that time and place without further request or order).⁴⁸ Except in the rare case where the time or place of production is of unusual importance, this usually is satisfactory and the production will occur without court intervention.⁴⁹

Responses to production requests, like all other written-discovery responses, must be signed by either the party's attorney or a pro se party.⁵⁰ Unlike interrogatory answers, however, the responses need not be verified.⁵¹ If the responses are not properly signed, they "must be stricken unless it is signed promptly after the omission is called to the attention of the [responding] party[.]"⁵²

Perhaps most importantly, under Texas Rule 193.1, the responding party "must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made."⁵³ As discussed in Chapter 5, section 5-2:2, nothing in Texas Rules 193 and 196 or the other discovery rules explains when "information" is "reasonably available." As also pointed out in those chapters, what material is reasonably available depends in large measure on the responding party's obligation of reasonable inquiry (i.e., how extensive a search the responding party must make to respond to the discovery request) and on whether the material is in the responding party's possession, custody, or control.⁵⁴ This, in turn, depends on the facts of each action.

Like other written-discovery responses, responses to production requests are not filed,⁵⁵ but must be served on all parties to the action.⁵⁶ In addition, the parties "must retain the original or exact copy of [the responses] during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court."⁵⁷

8-4:2 Motion for Protective Order

In appropriate situations, the responding party, rather than responding to a production request can move for a protective order pursuant to Texas Rule 192.6 if (1) the requests subject the answering party to "undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights,"⁵⁸ or (2) are disproportionate to the case's needs.⁵⁹ The most typical situation in which such a motion will be proper is when the requests are so voluminous that responding to them will be unduly burdensome, unnecessarily expensive, or disproportionate to the case's needs.⁶⁰ In such a case, the court must balance the legitimate needs of the requesting party with the burden or expense on the responding party considering the factors in Texas Rule 192.4.⁶¹

8-4:3 Production or Inspection

The responding party must produce documents and tangible things within its "possession, custody or control" at either the time and place requested or the alternate time and place set forth in its written response.⁶² It also must provide the requesting party a reasonable opportunity to inspect its documents and tangible things.⁶³ Unless the court finds good cause to shift the costs, the responding party is responsible for the cost of producing the items, and the requesting party is responsible for the cost of inspecting, sampling, photographing, and copying them.⁶⁴

Copies rather than original documents may be produced unless either "a question is raised as to the authenticity of the original" or, under the circumstances, "it would be unfair to produce copies in lieu of originals."⁶⁵ For example, a party may request the production of an original document to determine if there are handwritten notes on it that are illegible or difficult to read on the copy or to determine if the notes are in different color ink, which would suggest that they were made at different times.

The responding party must produce the documents or things either "as they are kept in the usual course of business or organize and label them to correspond with the categories in the request."⁶⁶ Although this directive and the one requiring the responding party to produce documents and things in its "possession, custody, or control"⁶⁷ are seemingly simple and straightforward, questions exist regarding both, which are discussed in the following chapters.

8-4:3.1 Possession, Custody, or Control

As noted above, to be subject to production or inspection under Texas Rule 196, the documents or tangible things sought must be within the responding party's "possession, custody, or control." Because the terms are in the disjunctive, only one of the requirements must be met.⁶⁸

A responding party cannot be compelled to produce items that it neither has nor controls.⁶⁹ A document that does not exist is not within a party's possession, custody, or control.⁷⁰ Thus, a responding party cannot be required to produce a document that no longer exists or that never existed.⁷¹ Nor can it be ordered to create a document that does not exist.⁷²

A motion to compel generally should be denied when the responding party asserts that the requested documents do not exist or are not in its possession, custody, or control unless there is evidence suggesting the contrary.⁷³ If, however, it appears either that the requested documents or things may exist or that they are within the possession, custody, or control of the responding party, the responding party must do more than simply provide an unsworn assertion to the contrary.⁷⁴

"Possession, custody, or control" of an item is defined by Texas Rule 192.7 to "mean[] that the person either has physical possession of the item or has a right to possession of the item that is equal or superior to the person who has physical possession of the item."⁷⁵ Mere access to documents, however, does not constitute possession, custody, or control.⁷⁶ Accordingly, when documents are owned by another, it is error to require a party with mere access to them to produce them.⁷⁷

Legal ownership of the requested documents or tangible things, however, is not determinative. A responding party who has actual possession or custody of a document or thing is required to produce it even if belongs to a nonparty⁷⁸ or even if it is located beyond the court's jurisdiction.⁷⁹ In fact, legal restrictions limiting a party's ability to obtain certain documents or to disclose them to others will not necessarily preclude a finding that the party has possession, custody, or control over those documents.⁸⁰

Conversely, actual possession of the document or thing is unnecessary if the party has control of it. As explained by the Texas Supreme Court:

The phrase "possession, custody, or control" . . . includes not only actual physical possession, but constructive possession, and the right to obtain possession from a third party, such as an agent or representative. The right to obtain possession is a legal right based upon the relationship between the party from whom a document is sought and the person who has actual possession of it.⁸¹

Thus, a responding party may be required to produce a document that it has the legal right to obtain even though it does not have a copy of the document in its possession. For example, a responding party can be compelled to produce documents or things in the possession of a third party if it has the contractual or other legal right to obtain the documents.⁸² Similarly, a party has possession, custody, or control over material in the possession of its officers, directors, employees, or agents;⁸³ subsidiaries or other entities owned or controlled by it;⁸⁴ or attorneys,⁸⁵ accountants,⁸⁶ and insurers.⁸⁷

A business-entity party generally does not have possession, custody, or control of documents in the...