Requests for production

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 177-206

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DePose custoDian of recorDs task 35

CHAPTER 6: REQUESTS FOR PRODUCTION

TASKS

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

FORMS

Form 10 Requests for Production of Documents

Form 11 Responses to Request for Production

TASK 35

Depose Custodian of Records

I. WHAT AND WHY

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

custodian.

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.

II. WHEN

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

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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.

III. HOW

A. Determine whether to depose an entity’s records

custodian.

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

deponent.

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