Notices for Production

• Author: Ashley S. Lipson
• Pages: 476-523

7-474

Be very careful about what you ask for—

you may just get it.

Chapter 7

Notices for Production

§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

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 Format]

Form 7.1(d) Response to Cost Shifting Request Letter

Form 7.1(e) Motion to Compel Response in Native Format With Metadata

Form 7.1(f) Response to Motion to Compel Response in Native Format With Metadata

Form 7.2 Response to Notice for Production (Documents Attached)

Form 7.3 Response to Notice for Production (Documents Located Elsewhere)

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

7-475 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 dis-

covery 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 reasonable particularity.”

Because the success of your document production

mission depends so heavily on the ability to describe pre-

cisely what you want and nothing more, it is often wise

to precede the demand for documents with an interrog-

atory-reconnaissance mission. In other words, consider

asking some questions that will force the enemy to iden-

tify 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 accordance with the

rules pertaining to the subpoena.5

CAUTION

This chapter approaches production from a tra-

ditional stance, from a time when paper was the pri-

mary target. Day by day, however, we are becom-

ing 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 Produc-

tion in conjunction with other discovery weapons. 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 Depo-

sition; 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 sever-

al weapons are launched simultaneously. 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 surprises 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).

[4] If you are running short of time, or facing the

deadline for the completion of discovery (this

is, of course, a situation that you want very

much to avoid by striking early).

[5] If the deposition is to take place at the offices of

the deponent and you require his or her help in

identifying the documents that you need.

[6] If you are otherwise taking the deposition pri-

marily for the purpose of locating and identi-

fying documents. Such a situation is typically

referred to as “deposing the bookkeeper or Cus-

todian of Documents.”

When we speak of mixing weapons, we are basi-

cally talking about simultaneous submission, which

can certainly be a time saving method. But the value

of expediency should be carefully weighed against the

desirability of analyzing the documents before using

them. In this weighing process, never underestimate the

power of the document with respect to impeachment.

The most devastating blows of a discovery campaign are

often dealt with as contradictory writings slapped down

§7.12 Guerrilla discOvery 7-476

8 One of the most important things to consider in that regard is Rule 8 of our Obligatory List of Cross- Examination Commandments: “Never

jump the gun or become overanxious as you lay your foundation for impeachment. Make certain that the fish has swallowed the hook.” See

generally §10.53.

9 I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory, ever bestowed on mortal man, says

jurist Joseph Henry Lumpkin. See Miller v. Cotton, 5 Ga. 341, 349 (1848).

Ford v. Rector, 81 A.D.3d 502, 916 N.Y.S.2d 113 (N.Y.A.D. 1 Dept., 2011). A former employee’s home and mobile telephone records were

material and necessary to the defense in her wrongful termination suit against the employer, and thus the employee was required to produce

records, where the employer claimed that the termination was not in retaliation for the discrimination suit but rather because of her involve-

ment in sending anonymous faxes, and her dishonesty during their investigation. There was apparently documentary evidence suggesting

that the sender of the mysterious faxes was the employee’s own brother-in-law.

10 See Rule 26(a)(1) of the Federal Rules of Civil Procedure. The subject disclosures must be made within 14 days of the Rule 26(f) Meeting.

11 Of course, if for some valid reason a shorter time period is needed, court permission would be required.

12 If the responding party misses the 30-day deadline by a few days, a court might be less likely to impose an “unintended” waiver with respect

to objections.

in front of a deponent during the course of a deposition.8

This “smack down” might require some analysis and

advance planning.

§7.12 The Document’s

Strategic Significance

In the choice of weapons, the Interrogatory and

the Deposition have always run neck and neck as the

nation’s second-closest election. And while the Notice

for Production is rarely considered the most flamboyant

weapon, it certainly targets the most potent form of evi-

dence: the document.9

DOCUMENTARY EVIDENCE

Some Important Pointers

1. For centuries, the “Document” has occupied

special significance and stature in the eyes of the

law and the jury. It is assumed that important infor-

mation or agreements will be reduced to writing.

2. Try to obtain your documentary discovery as

soon as possible, but not until you have enough

conducted research to determine the nature and

existence of the documents that you need.

3. Do not hesitate to employ the resources of

your client, office staff and experts to assist the

identification effort.

4. Always obtain and inspect original documents

if possible, and seek to examine them in the setting

where they are ordinarily kept and maintained.

5. Be certain to allow yourself plenty of time to

examine and obtain copies of those documents that

you consider important.

§7.20 Tips for Timing Your Attack

Timing the submission of your Notice for Production

does not involve rocket science. As with most of the other

discovery weapons, you should consider waiting until you

receive your mandatory “freebies” before you launch,

unless of course you have reason to believe that the target

documents may be altered, destroyed or “lost” in the mean-

while. In the federal war zone, absent court permission,

you are not permitted to issue your document production

demands until after the initial disclosures are due.10

Once the demand (i.e. notice) for production is sub-

mitted, it is incumbent upon the enemy to respond within

30 days or waive any objections that he or she may have

with respect to that notice. Rule 34 of the Federal Rules

of Civil Procedure and most of its state counterparts

require as much. If your notice requests documents with-

in a shorter period, the responding party need not comply

with the accelerated period.11 The request might therefore

best set a time period of 30 “plus” days from the date of

notice. From the preparer’s standpoint, there would be a

good argument that if objections were not received with-

in that extended period, they should certainly be waived.

Moreover, there would be less reason to excuse a party

who failed to produce the requested material by day 45 or

50; issues and arguments concerning holidays, weekends

and mail delays would also be avoided.12

Day A A+14 -30 Day 0

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