A key aspect of the discovery process is the request for production of documents, which allows both parties involved in a legal matter access to crucial evidence. Being able to file a request is very useful—but responding to one is often less convenient. Depending on a legal team’s litigation readiness, a request from opposing counsel can leave them scrambling.
This article will explain what a request for production of documents is and also delve into the challenges legal teams face when dealing with modern digital evidence and electronically stored information (ESI).
What Is a Request for Production of Documents?
A request for production is a discovery device used to gain access to documents, electronic data, and physical items held by an opposing party in a legal matter. The aim is to gain insight into any relevant evidence that the opposing party holds.
A legal team is legally obligated to respond to this request, either by producing the information, or alternatively, by providing a written explanation as to why the documents cannot be delivered. Common reasons for not producing requested documents are because they’re privileged, have been destroyed, are no longer in possession of the responding party, or because delivering them would be overly burdensome.
That said, simply stating that you can’t deliver requested information is not good enough. Rules (like Rule 37 of the Federal Rules of Civil Procedure) have been put in place to keep parties accountable—failing to to preserve important evidence is also not an excuse and can have serious consequences.
Federal Rules of Civil Procedure Rule 34
Although rules and regulations vary by jurisdiction, Rule 34 of the Federal Rules of Civil Procedure offers a good example of what a rule related to a request for production looks like. The rule is lengthy but worth reading in full.
Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:
(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(1) Contents of the Request. The request:
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
(2) Responses and Objections.
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
Requests for Production of Electronically Stored Information (ESI)
A request for tangible things and physical documents is easy enough to understand and respond to, at least in theory, but what about ESI? The prevalence of eDiscovery and ESI in modern legal matters have complicated the production of documents.
First, with so much ESI being created through different online platforms and communication tools, it can be difficult for organizations to know what information they hold and to put the necessary retention policies and preservation processes in place. Relevant evidence could be hiding in emails, Zoom meeting recordings, Slack conversations, and mobile text messages—and if legal teams aren’t keeping track of all these data sources, some unintentional destruction of evidence could take place. (Read this blog post to see how a data inventory can help).
Second, finding a particular piece of evidence in a mountain of data can be hard. For instance, finding a short but relevant exchange between two employees on Slack can be time-consuming—and without the right tools in place, impossible. Moreover, users have the ability to edit and delete messages at any time, which adds another layer of complexity. Without the right systems and processes, the early case assessment and document review of modern ESI is not only expensive, but will almost inevitably result in evidence being overlooked.
Lastly, delivering modern ESI in a format that satisfies both the expectations of opposing counsel and Article IX of the Federal Rules of Evidence is a complex task. For example, how would you respond to a request for a social media post or Slack conversation? And how would you prove the authenticity of this evidence? Screenshots are an obvious answer, but they wouldn’t have the metadata needed to authenticate. Facebook, Instagram, Twitter and Slack’s own data exports offer another potential solution, but these JSON files lack context and are hard to understand.
An example of a social media post in a JSON viewer.
Dealing with Requests for Production of Modern ESI
As Rule 34(b)(2) states, producing records in the correct form is important—but when that content exists in an online platform like WordPress, Slack, Twitter, or Facebook, finding an export format that complies with the rule (and the specific request of the opposing party) is challenging. As mentioned, screenshots are impossible to authenticate, while the typical JSON exports that platforms provide lack the context needed during the litigation process.
So how should a legal team respond to a request for production related to this kind of online data? The best way to deal with it is to leverage a purpose-built solution that’s specifically aimed at facilitating the eDiscovery of this sort of ESI.
Pagefreezer, for example, streamlines the process by enabling legal professionals to quickly and easily investigate the relevance of website, social media, team collaboration, and mobile text content to a particular legal matter.
Thanks to the dynamic nature of Pagefreezer’s collections, legal professionals can review content exactly as it appeared on a live platform—and even see messages and posts that have been edited or deleted.
Legal staff can also use advanced search and filtering to identify relevant content across multiple websites, collaboration tools, and social media accounts. Once evidence has been identified and collected, it can be exported to local servers for use during eDiscovery. Data can be exported in formats such as PDF, CSV, and WARC. Records are time-stamped and signed with a SHA-256 digital signature. All associated metadata is also included in the export.
The video below shows Pagefreezer’s Legal Edition for Enterprise Collaboration in action.
Want to learn more? Read bout the implications and expectations around FRCP Rule 26(f): Meet and Confer.