Requests for production

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 179-210

6-1

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

internally 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

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

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

6-2

TASK 35 REQUESTS FOR PRODUCTION

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.

III. HOW

A. Determine whether to depose an entity’s records

custodian.

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

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

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

6-3

PROPOUND REQUESTS TO PRODUCE TASK 36

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

was:

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.

IV. PRACTICE NOTE

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

documents.

3. Advise you of additional areas where relevant

documents may be located.

TASK 36

Propound Requests to Produce

I. WHAT AND WHY

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