Checklist for Drafting Document Requests - ABA YLD 101 Practice Series

By Megan Jones

Once a case is filed, one's next step is often propounding discovery. This can be in the form of interrogatories (Fed. R. Civ. P. ("Rule") 33), document requests (Rule 34) or depositions (Rule 30), among other methods. This checklist will focus on document requests, which are a mechanism to get another party to produce categories of documents that will help you prove your theory of the case and damages, if applicable.

Typical document requests consist of three parts. The first part is the "definition section." Here, you will define terms that you will use throughout the requests. These definitions are important (see below), and will impact what documents you receive. The second part is the "instructions section." Here, you will include instructions on how the party should respond to the requests. Most firms have a standard set of instructions that can be tailored for use in each case. Lastly, you have the document requests themselves.

Read the local rules in the jurisdiction where the case is pending. Often, jurisdictions will have their own rules about the timing and form of document requests. Specifically, look for:

  • restrictions on the number of requests you can issue;
  • whether discovery is filed with the court or just served on the parties (typically, discovery is not filed with the court);
  • the timing of when document requests can be served ( e.g., some jurisdictions require a scheduling order to be entered before discovery can begin); and
  • format of the requests.

Determine whether you can serve discovery and what it can concern. The party upon whom the requests are served has thirty days after the service of the requests to respond (unless a shorter time is directed by the court or the jurisdiction). [Hence, any document requests should be served at least thirty days in advance of any relevant deadline.] For example, the District of Maryland's local rules state that document requests "must be made a sufficiently early time to assure that they are answered before the expiration of the discovery deadline set by the Court. Unless otherwise ordered by the Court, no discovery deadline will be extended because written discovery requests remain unanswered at its expiration." See U.S. District Court of Maryland L.R. 104.2.

  • Review the case management order to determine relevant briefing and discovery deadlines for which you need documents.
  • Review the case management order to determine whether discovery is bifurcated. Bifurcation means that the discovery has been divided into phases; parties are only allowed discovery on certain topics during specified times ( e.g., damage issues are bifurcated from liability issues).

Know your theory of the case, and begin with the end in mind. Determine what categories of documents and information you need for each stage of your case ( e.g., general corporate background, class certification, liability, and/or damages). These categories should drive what kind of documents you ask for in your document requests.

  • Review the complaint in order to determine what the likely issues in the case will be.
  • Seek out experienced practitioners for practice-specific issues. For example, there are several categories of documents that are always relevant in every antitrust case. You should be sure to include requests for such documents on a cause of action specific basis.
  • Review samples of document requests in similar cases.

Draft meaningful document requests. Once you have determined what kinds of documents and data you need, draft and tailor your requests accordingly. When drafting, keep in mind the following elements:

  • Definitions of key terms will impact what is produced. If a term is defined too narrowly, you may not get all documents that are needed. Make sure your definitions are accurate and comprehensive enough so that you receive all relevant documents.
  • The scope of the time period from which documents should be pulled should be defined. ( e.g., "The 'relevant time' refers to the time period from January 1, 1999 through the date of these Requests, unless another time period is specifically indicated.")
  • Instructions should be included. Typical ones include:
    • Duty to supplement requests;
    • Nature in which the party should make their objections, especially those based on privilege;
    • Production of electronic data;
    • Production of copies and/or drafts of documents; and
    • Production of documents as they are kept in the ordinary course of business.
  • Be mindful of the scope and nature of your requests for electronic data ( see, e.g., Zubulake v. UBS Warburg LLC, et al., 216 F.R.D. 280 (S.D.N.Y. 2003). Some courts may shift costs of production to the requesting party if a request for electronic data is overly broad or too attenuated from the case.

Meet and confers - Your obligation to negotiate with opposing counsel regarding the production of the documents. The results of such negotiations should always be confirmed via letter to counsel in order to "build the record" for subsequent motions to compel, should they be necessary. Key topics include:

  • Date documents will be produced (to ensure compliance with any case and motion deadlines);
  • The medium in which the documents will be produced (hard copies or electronic format);
  • Estimate of volume of the production for your storage and review planning purposes;
  • Whether source logs will be produced, documenting where documents originated from (usually by employee or corporate division);
  • If an electronic production, the following items should be discussed:
    • Whether document breaks (an electronic recognition of where a document ends) will be included
    • If the documents will be imaged only (just a photograph of the document) or OCR-ed 1 (a searchable image); and
    • Whether emails can be produced in their native format.

The documents you receive in connection with your document requests are integral to the case, and are, in fact, the building blocks of it. Therefore, care needs to be taken so that all counsel know what documents were received and that their integrity is maintained for the entire case. Upon receipt of the documents:

Record the receipt of each box, drafting a master memo to the file th

  • Name of party that produced the documents;
  • Number of boxes and/or disks;
  • Date received;
  • Whether documents are originals or a copy set; and
  • Physical location within the office ( e.g., case room #11).

Determine whether a copy set should be made. If more than one person is going to use and/or review the original set of documents, there is a great likelihood that documents will become out of order or "disappear." Consider having a copy set made for review and use, and preserve the originals for emergency use only.

With each set of documents received in response to document requests, inquire whether any documents were withheld due to privilege. If so, the party should produce a privilege log.

Review the opposing parties' objections, and determine which should be challenged. Again, look at the local rules; most, if not all, jurisdictions require the parties to "meet and confer" before filing any motion to compel a party to produce documents.

Review the sufficiency of the production. If any category of documents is obviously missing, it needs to be noted and followed up on with opposing counsel prior to the close of discovery. The same is true for improperly redacted documents, or missing pages.

Even though the producing party has a duty to supplement its discovery responses during the course of the litigation (Rule 26(e)), if the case has been protracted, you should contact opposing counsel (in writing) about fulfilling their continuing obligation. Alternatively, if your document requests were limited to a specific time period that has since expired, consider whether you need to issue new document requests in order to update the production.

1OCR stands for optical character recognition. In contrast to just an image of a document, which is akin to a photograph, an OCR-ed document can be searched for characters or names. For more information, see for a general discussion of terms used when discussing electronic data manipulation and/or production.


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About the Author

Ms. Jones is an associate at Cohen, Milstein, Hausfeld & Toll, PLLC, where she focuses on national antitrust class actions. Megan has participated in, organized, and supervised numerous document productions involving multiple defendants, complex legal issues, and consequently, the review of hundreds of boxes of documents.

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