Failure to Specify Document-Production Date Leads to Award of Attorney Fees

Providing that the request is within the scope of Rule 26(b), Rule 34 permits a party to request the responding party to produce for inspection designated documents and electronically stored information. Rule 34(b)(2)(B) further imposes a duty on the responding party to specify the time frame for the document production. Specifically, Rule 34(b)(2)(B) provides that “production of copies of documents or electronically stored information must be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Failure to specify the time frame for production may lead to an award of attorney fees and costs to the requesting party.

For example, in QC Labs v. Green Leaf Lab, LLC, 2019 WL 6797250 (C.D. Cal. July 19, 2019), QC Labs filed suit against Green Leaf Lab, LLC for declaratory relief, cancellation of a California trademark registration, common-law trademark infringement, and unfair competition based on claims that Green Leaf infringed QC Labs’ common-law trademark used in connection with its scientific cannabis-testing laboratory. QC Labs served a Rule 30(b)(6) notice as well as requests for production of documents pursuant to Rule 34 to Green Leaf.

After not receiving responsive documents, QC Labs sought an order compelling Green Leaf to (1) produce a Rule 30(b)(6) witness prepared to answer questions on specified topics in the notice; (2) produce all responsive documents from or concerning Green Leaf; (3) produce all documents containing sales information from Green Leaf’s California customers; (4) reimburse QC Labs for reasonable attorney fees and costs incurred in bringing the motion; and (5) reimburse QC Labs for the attorney fees and costs needed to take a continued corporate deposition of Green Leaf.

In granting the motion to compel and awarding attorney fees and costs to QC Labs, the U.S. District Court for the Central District of California held that, while Green Leaf’s responses noted that documents would be produced, Green Leaf failed to indicate when the documents would be produced in accordance with Rule 34. Thus, Green Leaf’s responses failed to comply with Rule 34. The court ordered Green Leaf to provide a verified statement that it produced all non-privileged documents responsive to QC Labs’ requests within 10 days.

To comply with Rule 34, responding parties should specify the production date, and if a rolling production, responding parties should indicate the beginning and end dates for production. Parties that fail to specify production deadlines up front run the risk of being given a court-imposed deadline that may be difficult to meet, along with an award of attorney fees and costs to the requesting party.

Ebony S. Morris is an attorney with Garrison, Yount, Forte & Mulchay, P.C., in New Orleans, Louisiana.