Notices for Production

AuthorAshley S. Lipson
Be very careful about what you ask for—
you may just get it.
Chapter 7
Notices for Production
Table of Contents
§7.10 Basic Training and Strategy
§7.11 Mixing Other Weapons
§7.12 The Document’s Strategic Significance
§7.20 Tips For Timing Your Attack
§7.30 Identifying Your Quarry
§7.40 The Rules That You Need
§7.41 Federal Rules Pertaining to Production of Documents
§7.42 The State Rules Pertaining to Production
§7.50 Constructing Your Demands
§7.51 Three-Step Program
§7.52 Basic Rules of Construction
§7.52(a) Size Doesn’t Matter
§7.52(b) Little Big Words
§7.52(c) Safety in Numbers
§7.52(d) Mix Generals With Privates
§7.52(e) Keep It Simple
§7.52(f) Crush the Shell Game
§7.60 Responding to the Requests
§7.61 Burial Alive
§7.62 The Sorcerer’s Mixture
§7.63 Exorcism
§7.64 Document Destruction
§7.65 Bogus “Good Faith” Erasures of Electronic Data
§7.70 Enforcing Compliance
§7.80 The Forms That You Need
Form 7.1 Notice for Production of Documents
Form 7.1(a) Notice for Production of Documents in a Specified
Electronic Format
Contents continued on next page
Guerrilla Discovery 7-2
Form 7.1(b) Response to Notice for Production of Documents in a
Specified Electronic Format
Form 7.1(c) Cost Shifting [Sharing] Request Letter [Responding
to Notice for Production of Documents in a Specified
Form 7.1(d) Response to Cost Shifting Request Letter
Form 7.1(e) Motion to Compel Response in Native Format With
Form 7.1(f) Response to Motion to Compel Response in Native
Format With Metadata
Form 7.2 Response to Notice for Production (Documents
Form 7.3 Response to Notice for Production (Documents Located
Form 7.4 Response to Notice for Production (Objections)
Form 7.5 Motion to Compel Production
Form 7.6 Motion by Plaintiff for Adverse Inference
Form 7.7 Motion for Partial Summary Judgment by Plaintiff
Form 7.8 Motion to Dismiss by Defendant for Failure to Produce
7-3 notices For proDuction §7.11
1 This particular chapter is concerned only with documents. Note, however, that most civil rule books (state and federal) employ
a single rule to encompass “documents and things,” a relatively incongruous mixture. The rules drafters are presumably
referring to “real evidence” when they use the term “things,” although you cannot really be certain what they are thinking. In
any event, the distinction between “documents” and “things” is as important as the difference between real and documentary
evidence; each matter warrants its own separate chapters. Thus, your so-called “things” and other “stuff” will be dealt with in
Chapter 8.
2 See §14.10 for additional discussions pertaining to work-to-grief ratio.
3 For those of you who measure victory by the volume of the response, remember Pyrrhus of Epirus: One more such victory and
we are undone.
4 See In re Greenwood Air Crash, 161 F.R.D. 387 (S.D. Ind. 1995).
5 See Rule 45 of the Federal Rules of Civil Procedure.
6 See generally, Chapter 15.
7 In practice, it seemed as if those defendants with very limited resources and those with unlimited resources (i.e., insurance
carriers) were most likely to settle under fire; the entities in the “middle,” however, were always last to surrender.
§7.10 Basic Training and Strategy
The Notice for Production, which targets the
discovery of documents,1 is a high-caliber weapon
with a tremendous recoil and a high work-to-grief
ratio.2 In other words, a very small shot, in the form of
a single notice, can result in a very large crater filled
with truckloads of paper.
The power of the Notice can be both a blessing
and a curse,3 depending upon how intelligently you
deploy the weapon, which, in turn, depends upon your
ability to describe your target writings “with reason-
able particularity.”
Because the success of your document pro-
duction mission depends so heavily on the ability to
describe precisely what you want and nothing more,
it is often wise to precede the demand for documents
with an interrogatory-reconnaissance mission. In other
words, consider asking some questions that will force
the enemy to identify and describe the documents that
you might need before you demand them.
NOTE: For Parties Only
Do not fire this weapon at civilians. The
Notice for Production is not to be used for
non-parties. It may only be served upon parties to
the litigation.4 All others must be served in accor-
dance with the rules pertaining to the subpoena.5
This chapter approaches production from
a traditional stance, from a time when paper
was the primary target. Day by day, however,
we are becoming more paperless. Be certain,
therefore, to include electronic and digital
media in your requests. And, more particularly,
you must review Chapter 3.
§7.11 Mixing Other Weapons
It is not uncommon to use the Notice for
Production in conjunction with other discovery weap-
ons. The most common accompaniment involves the
Notice of Deposition.6 Generally, however, I do not
recommend combining a Notice for Production and
a Notice of Deposition; I prefer instead to see the
writings in advance of the deposition to permit time
for preparation and cross-examination. There are,
however, a few exceptions where such a combination
might be recommenced:
[1] If it is part of a blitzkrieg attack whereby
several weapons are launched simultane-
ously. This method is generally deployed
for relatively small cases wherein you
want an insurance carrier or a weak enemy
to cave in and settle quickly.7
[2 ]If you already have copies or know
the contents of the writings that you are
demanding, and do not anticipate any sur-
prises that may leave you unprepared.
[3] If the deposition site and the documents
are located in some distant burg (in such a
case you should leave ample time between
the scheduled production and the start of
the deposition, and you should warn your
opposition about your anticipated delay).

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