Requests for production

AuthorWilliam M. Audet/Kimberly A. Fanady
DePose custoDian of recorDs task 35
Task 35 Depose Custodian of Records
Task 36 Propound Requests to Produce
Task 37 Respond to Requests to Produce
Task 38 Produce and Inspect Documents and Things
Task 39 Determine Whether to Compel Production
Form 10 Requests for Production of Documents
Form 11 Responses to Request for Production
Depose Custodian of Records
A. A records custodian is a person with knowledge
of an entity’s record maintenance and retention
policies and practices. Depose an entity’s records
custodian to learn:
1. The types of records the entity generates, e.g.,
telephone messages, internal memoranda,
meeting minutes.
2. The types of records the entity keeps.
3. The entity’s record filing system, e.g., whether
the entity files consumer complaint letters in a
single complaint file or separately by product.
4. The entity’s record identification system, e.g.,
by title, file number, subject or author.
5. The locations of records.
6. How the entity maintains records, e.g., on hard
copy, computer storage, or cloud storage.
7. The entity’s record destruction policy.
8. Who is in charge of maintaining records.
9. Who is in charge of distributing records inter-
nally and determining the distribution path.
10. How the record system actually works versus
how it is supposed to work.
B. This information may help you obtain documents
you need because you can:
1. Draft more specific document requests.
2. Properly identify documents.
3. Know what documents the entity has.
C. Deposing a records custodian can help you
impeach the entity’s credibility.
1. A motion to compel production of documents
(see Task 81) will be more effective because
you will have strong evidence that the entity
maintains the documents at issue.
2. If the entity does not produce requested docu-
ments, at trial you may show what types of
documents the entity usually maintains and
that the entity’s failure to produce them sug-
gests it is hiding something.
D. Deposing a records custodian can help you qualify
the entity’s documents as business records under
FRE 803(6) and allow you to offer them into evi-
dence without further authentication and without
many hearsay objections associated with docu-
mentary evidence.
E. A records custodian can also provide information
about additional witnesses, documents and other
facts you may need to prove your case.
F. You may also depose a records custodian about
the entity’s efforts to locate responsive docu-
ments and to verify that the entity produced all its
responsive documents.
G. You may depose a party’s or nonparty’s records
H. You need not identify the custodian by name or
job title. Your deposition notice (see Task 57) may
simply be directed to the “custodian of records” of
the responding party.
A. Without a court order or written stipulation, you
may not take records custodian depositions before
the FRCP 26(f) initial meeting (see Tasks 20-22).
FRCP 30(a)(2).
B. You may take records custodian depositions
before the meeting only:
1. If the parties stipulate in writing.
2. By court order, if you can show good cause.
FRCP 26. For example, if the witness is in
task 35 requests for ProDuction
poor health or imminently departing the juris-
diction or you need the deposition for a TRO
or preliminary injunction.
3. When the witness is leaving the country and
will be unavailable after the initial meeting.
FRCP 30(a)(2)(A)(iii). An order or stipulation
is not required.
4. If local rules allow.
C. If the FRCP 26(a) initial disclosure requirements do
not apply to your case (see Task 19), check local
rules and court orders for any hold on depositions.
D. As a practical matter, consider deposing a records
custodian before you draft your document requests
or to authenticate the documents at a document
production. Parties frequently stipulate to authen-
ticity and do away with the need for any deposi-
tion on that issue.
A. Determine whether to depose an entity’s records
1. A records custodian deposition is most desir-
able when:
a. You are unfamiliar with the entity’s or
industry’s record-keeping practices.
b. The entity is large, has many files,
branches or management tiers and its
record-keeping practices are complex. A
custodian of records may be particularly
helpful in explaining an entity’s electronic
storage system.
c. You want testimony about the records
the entity normally retains because you
believe the entity may not produce all its
responsive documents and you may make a
motion to compel.
d. You want to authenticate and qualify the
documents as business records for admis-
sion at trial.
2. You may not need to take a records custodian
deposition when:
a. You have access to an expert or other
person knowledgeable about the entity’s
record-keeping practices.
b. You seek only specific, identifiable docu-
ments from the entity.
c. Your resources are limited or you have
other more important depositions to take
and you do not want to use up your deposi-
tion allotment.
d. You intend to depose other witnesses who
can authenticate and qualify the documents
as business records.
B. If you decide to take a records custodian deposi-
tion, draft and serve a deposition notice pursuant
to FRCP 30(b)(6). See Task 58 and Form 21.1.
1. Name the entity’s “records custodian” as the
2. Define “records custodian” as the person or
persons most knowledgeable regarding the
entity’s record maintenance and retention poli-
cies and practices.
3. You may specify a records custodian for a cer-
tain department, division or branch.
C. To depose a nonparty’s records custodian, serve a
subpoena pursuant to FRCP 45. See Task 40.
D. Review your annotated proof of fact (Task 4) to
determine what documents you need to prove
your case.
1. Prepare for the deposition with an eye towards
documents you need. First ask general questions,
such as the types of records the entity maintains.
Then ask more specific questions about the
records that may relate to your case. Ask about:
a. Employees’ office, desk and personal files.
b. Legal and accounting records.
c. Advertising and marketing files.
d. Consultants’ and former employees’ files.
e. Computer storage and electronic mail.
f. Records at plants or branch offices.
g. Stored files.
2. Elicit detailed information about the existence,
form, maintenance and retention of each type
of record you need.
3. Ask how the documents listed in the entity’s
FRCP 26(a) initial disclosure and other avail-
able documents fit into the entity’s record
system. This may provide more concrete
information about the entity’s record-keeping
system and may trigger additional testimony.
4. If any documents are available before the
deposition, review them for information sug-
gesting the existence of other documents.
5. Find out all circumstances under which the
entity may deviate from its usual document
retention policy.
6. If the records custodian produces documents at
the deposition or if you already have the entity’s

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT