Responding to Document Requests
In an earlier post, I discussed the process of drafting document requests. But merely asking for documents does not mean that a litigant will get them. Instead, serving a document request on someone often leads to that someone’s lawyer drafting “Objections and Responses” to the request and possibly arguments in court before the requested documents arrive, if they ever do.
Why should you continue to read this post about responding to document requests?
You already read the post about document requests and now you need to know what happens next.
You’re in a litigation and you want to know if you really need to provide all of the documents that your adversary demanded.
You’ve read so much of the news that you just want to read something else.
Litigants Can Object to Document Requests
Just as a party drafts a document request, with numbered requests for documents, the recipient of the request drafts a document with the same numbered list, followed by the response to the request. For each request, the recipient often sets forth her objections if she has any, and states whether she will produce documents in response to the request.
The recipient could object to a request by asserting that the document request seeks documents are protected by a privilege, such as the attorney-client privilege. She can also claim that the documents requested are irrelevant to the litigation. Additional objections include a statement that the request is so overbroad that it would be unduly burdensome for her to comply with the request and that the request is phrased in way that is so vague that it is not clear what documents the request seeks. And the recipient may also state that she simply has no documents responsive to a request.
Drafting responses and objections, much like drafting a document request, involves a lot of copying and pasting since objections that apply to one request often apply to other requests.
Litigants “Meet and Confer” About Objections
After the recipient delivers the responses and objections, the party that requested the documents may believe she is entitled to documents notwithstanding the objections.
The requesting party often drafts a letter to the recipient, explaining what objections or privileges it contends do not apply or challenging the assertion that the recipient has no responsive documents. The recipient may send a letter in response. And, pursuant to rules like Federal Rule of Civil Procedure 37(a)(1), the parties may have a phone call to discuss what documents will be produced. This process may lead to the parties narrowing their disagreements, as it becomes clear which arguments are stronger than others and which issues the parties take more seriously.
Often, parties will make compromises in discovery to avoid the expense and uncertainty of going to court. For example, if a party believes it is entitled to all of a company’s financial records and the recipient believes it is entitled to none, the two may compromise and the recipient may agree to produce some specific financial records.
Litigants Can Ask the Court to Decide Discovery Disputes
If the parties are unable to agree on what documents need to be produced, then the requesting party can file a motion to compel, asking the judge to order the documents be produced. Alternatively, the recipient can file a motion for a protective order, asking the judge for an order stating that certain documents do not need to be produced.
Motions to compel can be difficult to make because the proponent needs to explain why evidence is relevant and important, despite never having seen it. They also require the proponent to disclose their strategy for how they intend to use the evidence in the litigation, even though that strategy may change later as the lawsuit progresses. Still, motions to compel can be persuasive when they explain the party’s need to fully understand its claims and defenses.