July 31, 2020 Practice Points

The Trouble with Replacement Productions

Why you should get it right the first time, and what courts can do if you don’t.

By Monette Davis

Federal Rule of Civil Procedure 34 governs requests for production of documents and electronically stored information. Specifically, Rule 34(b)(1)(A) states that a requesting party must describe with reasonable particularity each item or category of items to be inspected. Rule 34(b)(2)(E)(i) permits a party responding to a request for production to either produce documents as they are kept in the usual course of business or organize and label them to correspond to the categories in the request. What neither rule covers is how to properly make a “replacement production” when the first one goes awry.

Attorneys can find some guidance, however, in a recent decision by the U.S. District Court for the District of Utah on a motion to compel. In J White L.C. v. Wiseman, the defendants identified issues with the plaintiffs’ production of documents that rendered it nonresponsive to the discovery request. The plaintiffs admitted their error and agreed to replace their document production with a new production. However, the “replacement production” also contained deficiencies. The defendants then filed a motion to compel the plaintiffs to complete the document production and to organize and label such documents with corresponding Bates numbers to enable them to identify which documents are being replaced. At that point, though, the plaintiffs argued that, because there was no rule requiring the “replacement production” to match Bates numbers between the two productions, they were not required to engage in such a time-consuming and unnecessary process. Yet, even though the plaintiffs were correct in stating that there was no rule that required the “replacement production” to match the Bates numbers, the plaintiffs failed to consider the court’s discretion in regulating discovery to ensure that it is relevant and proportional to the needs of this case.

J White L.C. v. Wiseman provides noteworthy tips regarding the importance of giving proper attention to the collection and production of documents for discovery. First, although there may not be a particular rule regarding the production of such documents, a court’s discretion can ultimately determine whether the discovery is essential to the needs of a case. Second, producing documents as they are kept in the usual course of business and organizing such documents for the opposing party can prevent the time of having to produce “replacement production.” Third, proper attentiveness to the production of documents can help attorneys avoid undesirable filings of motions, court costs, and attorney fees.

Monette Davis is an attorney with Stone Pigman Walther Wittmann L.L.C. in New Orleans, Louisiana.


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