Writing Better Requests for Production of Documents
Disputes over requests for production of documents are often time-consuming and expensive. It is common for attorneys to spend months bickering about the wording of requests for production of documents without accomplishing anything. The best way to avoid such disputes is to write clear, focused, unobjectionable requests for documents. Here are some tips for doing so.
Do Not Merely Copy and Paste From a Previous Set of Requests: Although this should go without saying, every case is unique and requires thought and consideration about what documents are potentially relevant. Nevertheless, many attorneys who specialize in a particular area of the law use a “canned” list of document requests in all their cases. Such canned lists are inevitably vague, generic, and overbroad.
Think Carefully Before Asking for “All” Documents: Requests that ask for “all” documents “relating” or “referring” to an issue or category are the most frequently disputed types of requests. Before drafting such a request, consider whether you actually need “all” documents on a particular issue, or whether you just need enough documents to establish a particular point. Sometimes a request for “all” documents is justified. For example, in sexual harassment case, it is often reasonable to ask for all communications between the alleged harasser and victim. But in other contexts, a request for documents “sufficient to show” a fact should be good enough. For example, in an employment case, a request for “documents sufficient to show” how much the plaintiff made at the time he or she was let go should be adequate. “All documents relating or referring to plaintiff’s compensation” would be overkill.
Include Date Ranges: Document requests without date ranges are often objectionable because, if taken literally, they would encompass many years with no potential relevance to the lawsuit. Pick a date range and include it in your requests where the time frame being asked about is ambiguous.
Consider Naming Custodians: When seeking personal communications, such as emails and text messages, consider naming specific custodians. A custodian can be a specific, named individual or a job title (such as “director of human relations.”) Identifying custodians is particularly helpful when the request is being made to a large corporation or government entity.
Consider Talking to Opposing Counsel: When seeking documents from a large corporation or government agency, it is often not clear what kinds of documents the party keeps and where it keeps them. Some opposing counsel are willing to have a call to discuss how their client is structured and how documents are stored. A ten-minute phone call can help you draft focused document requests that end up saving you time and money in the long run.
Consider Listing Search Terms in the Request: Often times attorneys issue overbroad requests for electronic communications with the expectation that they will eventually end up proposing search terms to opposing counsel. By including search terms in the request itself, you can avoid unnecessary delays and correspondence with opposing counsel.
Ditch the Boilerplate Instructions and Definitions: Requests for productions of documents are often accompanied by many pages of boilerplate instructions and definitions. These boilerplate instructions and definitions have no legal significance. Worse, they sometimes end up burying instructions and definitions that actually matter. If your requests include only two or three short definitions, opposing counsel will probably read them. If these two or three definitions are instead buried in five pages of boilerplate, however, opposing counsel (and the judge) will probably overlook them.
Imagine Yourself in Front of a Judge: For every request, ask yourself: is this a request you would gladly defend at a hearing on a motion to compel? Or would you sheepishly have to admit to the judge that the request “probably could have been a little tighter”? Don’t issue requests that you would be embarrassed to defend.
By following this advice, your document requests will be better than 90% of the document requests I have seen in my career. Good luck!
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