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Best practices in responding to requests for production

I spend a lot of time struggling to get opposing attorneys to fully respond to requests for production. Often it’s hard to tell if the response is adequate because often the response is not clear.

Vague request for production responses can be treated as a failure to respond. See Rule 37(a)(3), SCRCP (“an evasive or incomplete answer [to discovery] is to be treated as a failure to answer”). Furthermore, a response that isn’t clear in what is being produced can lead to problems at trial. If a party cannot show a document was produced in responding to discovery, that party may not be able to enter that document as an exhibit at trial.

In developing what I consider to be best practices in responding to requests for production, I look to the language of Rule 34, SCRCP, which addresses such requests. There’s particular language I find meaningful. Rule 34(a) allows “the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents.” This gives the requesting party the right to copy the documents. It does not require the requested party to actually make the copies.

Rule 34(b) has language, “[a] party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” This leaves the responding party two options. The first is to make the documents available for inspection in a manner “as they are kept in the usual course of business.” This option is rarely used in family court: a requested party who makes the requesting party come and make copies of the documents can expect similar treatment in return. However, where a request to produce is exceedingly broad and general, one can make the requesting party come and inspect documents as they are kept in the ordinary course of business – and make that party search thousands of documents to locate the few useful ones.

The second – almost uniformly used – option is to produce copies of the requested documents and “organize and label them to correspond with the categories in the request.” While producing copies of the requested documents is the more commonly used option, often the responding attorney fails to organize and label the documents to correspond with the categories in the request. Such a response fails to comport with the rules of procedure, is evasive, and therefore can be treated as a failure to respond. See Rule 37(a)(3), SCRCP.

Finally, Rule 26(a), SCRCP, places a limit on all discovery and part of that limit is that discovery “shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive…” Requests are limited to items “which are in the possession, custody or control of the party upon whom the request is served…” Rule 34(a), SCRCP. This means that documents do not need to be in a party’s possession to be subject to a request to produce – documents in that party’s “custody or control” also need to be produced. However if they are “obtainable from some other source that is more convenient, less burdensome, or less expensive” that method can be used for production.

The interplay of these rules has led to what I consider best practices for responding to requests for production. First, for non objectionable requests I ask my clients to gather documents that fall into one of four categories: 1) requested documents within their possession or obtainable without any expense or significant effort; 2) documents that can be downloaded from the internet; 3) documents that they really should have in their possession even if they don’t; 4) documents they will want to use at trial.

I have clients obtain records in the first two categories because those records really are in their possession. I have clients obtain records in that they really should have in their possession because I don’t want the other side to learn my client doesn’t have that record. For example, in a custody case in which my client justifies exposing the children to a romantic companion overnight because (s)he is married to that romantic companion, I would not want to respond to a request to produce the marriage license by indicating it’s not in my client’s possession. Instead, my client will be told to get the marriage license.

I will also have clients make effort to obtain documents they would want to use at trial. For example, in a custody case the child’s medical or educational records might not be in my client’s possession. However, if these records will support my client’s custody claim I will want to produce them and my client will be directed to obtain them. Often I don’t have my expert’s CV in my possession. However, I will ask my experts to provide me one so I can provide it in responding to a request to produce. When that expert testifies at trial, I will want the CV to be an exhibit.

I don’t necessarily have my clients obtain documents outside these four categories. An example of documents I do not necessarily have them obtain if they don’t already have them are their own medical records (if those records are not available online), SLED reports, and driving records. As such records are “obtainable from some other source that is more convenient, less burdensome, or less expensive,” I leave it to requesting party to obtain those records – my client’s only obligation being to indicate where such documents might be located and signing any authorization necessary to obtain them.

Once the client has gathered up the records, it is time to fashion a formal response. There are two keys to doing this. The first is to detail and describe the documents being produced so it is clear what documents are being produced. The second is to organize the actual documents to respond to the categories.

Take a request for production, “Please produce all checking account statements for the Defendant for the past three years.” A response, “Response: See enclosed” doesn’t show what was produced. A better written response is “Response: See enclosed bank statements for Defendant’s Wells Fargo checking account #1234 for March 2014 through February 2017.” The benefit of a more detailed response is that, when one tries to enter the Wells Fargo checking account #1234 statement for February 2017 at trial, there is clear evidence that this document was part of what was produced.

In addition to the written response, one also needs to produce copies of the actual documents. Here the best practice is to produce the documents on a non-modifiable electronic medium, such as a DVD-Rom. If one is producing electronic copies of documents it is vital that they be produced in a non modifiable medium (thus, no thumb drives). Otherwise disputes can arise as to what was actually produced. Further, the documents should be clearly labeled to correspond to the specific request. Thus, if the request for the checking account statements was the 13th request, I might have a file folder on the DVD-Rom labeled “RTP 13” and in that folder I would include PDF copies of all the bank statements (electronic, not hard, copies if electronic copies were requested). I would make an additional copy of that DVD-Rom for myself. That way, if at trial, there was an issue as to whether a particular document was produced, I could locate it on my copy of the DVD-Rom.

If one is producing actual paper copies of documents, it is useful to bates stamp the documents being produced to help clarify which documents correspond to which request to produce and to be able to demonstrate at trial that these documents were actually produced. Assuming bates stamped hard copies are being produced, the written response would be “Response: See enclosed bank statements for Defendant’s Wells Fargo checking account #1234 for March 2014 through February 2017–bates stamped 001-124.”

For documents in a client’s “custody or control” but not in a client’s possession, the response should note what records are available and where they can be produced. For example, a request to produce “All Defendant’s medical records for the past three years” might be met with a response, “Response: None in Defendant’s possession. Records may be obtained from Dr. Joseph Wilson, 123 Calhoun Street, Charleston, SC 29401. Defendant will execute any release required by Dr. Wilson to enable the Plaintiff to obtain these records.”

Sometimes a client will be able to download some, but not all, of the requested records. For example, if the request for checking account statements had included a request for cancelled checks and deposit slips, these items would likely not be in the party’s possession. Thus a valid response would be, “Response: See enclosed bank statements for Defendant’s Wells Fargo checking account #1234 for March 2014 through February 2017. The remaining requested records may be obtained from Wells Fargo at the address located on the statement.”

Following these practices does not unduly inconvenience the responding party by making that party go to significant effort or expense to obtain records he or she does not intend to use at trial. However it minimizes the risk of a (successful) motion to compel being brought. It further makes it very clear what records have been produced so that any challenge to admitting exhibits at trial on a claim that they were not provided in discovery can be clearly and quickly refuted.

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  • As always, nice work, Greg. Thank you for sharing your experience and wisdom.

    George

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