Notices for Production

AuthorAshley S. Lipson
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.
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
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
[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
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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