Requests for production

AuthorWilliam M. Audet/Kimberly A. Fanady
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
internally and determining the distribution
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
documents, at trial you may show what types
of documents the entity usually maintains
and that the entity’s failure to produce them
suggests 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 evidence without further authentication and
without many hearsay objections associated with
documentary 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 documents
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 poor health or imminently departing the
jurisdiction 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 authenticity and do away with the need for any
deposition on that issue.
A. Determine whether to depose an entity’s records
1. A records custodian deposition is most
desirable 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
admission 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
documents 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
deposition 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
deposition, draft and serve a deposition notice
pursuant to FRCP 30(b)(6). See Task 58 and Form
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
policies and practices.
3. You may specify a records custodian for a
certain 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
available 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
suggesting 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 documents, ask the custodian to
explain how each document was prepared
and to qualify them as business records under
FRE 803(6). FRE 803(6) defines a business
record as any memorandum, report, record or
data compilation, in any form, of acts, events,
conditions, opinions or diagnoses, if the record
a. Recorded at or near the time the act, event,
opinion or diagnosis occurred.
b. Made by or from information transmitted
by a person with knowledge of the act,
event, opinion or diagnosis.
c. Kept in the course of a regularly conducted
business activity and it was the regular
practice of that business activity to make
the record.
E. Review Task 65 for a discussion about taking
depositions generally.
A. Carefully review 28 U.S.C. §1732, describing how
to qualify the records custodian and qualify the
exhibits as business records.
B. In addition to deposing the records custodian, also
request the production of all documents relating
to or explaining the entity’s document retention
policies. See Task 36.
C. The records custodian may turn out to be several
people, requiring several shorter depositions rather
than a single longer one.
D. Remember, the records custodian deposition can
serve a number of functions.
1. Authenticate already produced documents.
2. Confirm that an opponent has appropriately
under taken a search for already requested
3. Advise you of additional areas where relevant
documents may be located.
Propound Requests to Produce
A. A request to produce or inspect documents or
tangible things requires a party to produce the
requested electronically stored information,
documents or things in the party’s possession,
control or custody. FRCP 34. You may also
request to inspect, copy, test, or sample
electronically stored information in any medium
from which information can be obtained,
translated, if necessary, by the responding party
into reasonably usable form.
B. Documents include anything on which information
is recorded, such as writings, drawings, graphs,
charts, photographs, and other data compilations.
FRCP 34(a). Electronically stored information
includes computer hard drives, disks, backup
drives, cloud storage, and so on. See Crown Life
Ins. Co. v. Craig, 995 F.2d 1376, 1382 (7th Cir.
1993). See Task 6A.
C. FRCP 34(a) permits measuring, surveying,
photographing, testing or sampling tangible things.
Tangible things include any type of physical
evidence, such as clothing or a defective product.
1. Rule 34 has been construed to require a party
to create and produce a handwriting exemplar
when handwriting is at issue in the case.
Harris v. Athol-Royalston Regional School
District Committee, 200 F.R.D. 18 (D. Mass.
2001) (requiring handwriting exemplar is
consistent with general duty to provide non-
testimonial physical evidence).
D. You may serve requests to produce on any party if
you need to:
1. Inspect and copy documents in the party’s
possession or control.
2. Determine whether certain documents are in
the party’s possession or control.
3. Inspect, copy, test or sample any tangible thing
in the party’s possession or control.
E. A party must produce a requested document or
thing if:
1. It is within the party’s “possession, custody
or control.” FRCP 34(a). This includes
documents a party’s agent, attorney,
doctor, accountant, employee or subsidiary
possesses or controls. See Flame S.A. v.
Industrial Carriers, Inc., 39 F. Supp. 3d 752

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