Requests for production

AuthorWilliam M. Audet/Kimberly A. Fanady/David Ling Y. Kuang
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
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Depose Custodian of Records
A. A records custodian “must simply be familiar with the company’s recordkeeping practices.” Lee v. Cleveland
Clinic Found, 676 F. App’x 488, 501 (6th Cir. 2017). Typically, such a person will have knowledge of a
party’s record maintenance and retention policies and practices. Parties frequently resist attempts to depose
their records custodian, but courts will often entertain such an attempt, so long as the deposition notice and
need is reasonably demonstrated. Daves v. Morgan Tire & Auto, Inc., No. 3:08CV-00178-S, 2010 U.S. Dist.
LEXIS 72532, at *6 (W.D. Ky. July 19, 2010) (“if the records are in fact, as it appears most likely to be the
case, ‘business records,’ then the records custodian is an appropriate deponent to lay the foundation for their
possible admissibility at trial.”); see also Johnson v. Gmeinder, 191 F.R.D. 638, 650 (D. Kan. 2000) (allowing
records custodian deposition with limitations); contrast with, Rensselaer Polytechnic Inst. v. Apple Inc., Civil
Action No. 1:13-CV-0633 (DEP), 2014 WL 1871866, 2014 U.S. Dist. LEXIS 63413, at *19-21 (N.D.N.Y. May
8, 2014) (denying records custodian deposition, despite the court previously inviting one, due to propounding
party going “far beyond” what the court envisioned). With this mind, you should 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.
 e.g.   
 e.g.
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.
11. With the prevalence of electronic data (and specialized technical knowledge that is required to maintain
the IT department), parties should be cognizant of also deposing ESI-knowledgeable individuals who may
or may not also be the custodian of records in order to learn more about electronic data retention policies.
See, e.g., Power Analytics Corp. v. Operation Tech., Inc., No. SACV 16-1955 JAK (FFMx), 2017 U.S.
Dist. LEXIS 166458, at *7 (C.D. Cal. Mar. 20, 2017) (compelling a party to identify “the custodian of
records for ESI management and its organization, retention, preservation, and destruction”).
B. This information may help you obtain documents you need because you can:
 
2. Properly identify documents.
3. Know what documents the entity has. See generally, Rensselaer Polytechnic Inst. v. Apple Inc., Civil
Action No. 1:13-CV-0633 (DEP), 2014 WL 1871866, 2014 U.S. Dist. LEXIS 63413, at *19-20 (N.D.N.Y.
May 8, 2014) (envisioning that any record custodian deposition would “broadly describe the system
for retaining records and the record retention policy of a party, and would identify the custodian of the
 
focused request for the production of documents based upon what was learned during the deposition.”).
C. Deposing a records custodian can help you impeach the entity’s credibility.
1. A motion to compel production of documents (see
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
   

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