Requesting production of documents and responding to requests for production (RFP) are key aspects of the discovery process, allowing both parties involved in a legal matter access to crucial evidence.
But, however useful filing a request for documents in the discovery process is, responding to RFPs with the documents requested is often less convenient. Depending on your team’s litigation readiness, a request for production of documents from opposing counsel could leave your team scrambling.
Requests for production have legal implications and consequences. Misunderstanding these complexities before you file or respond to a request for production of documents could have significant consequences that influence the outcome of your case.
That’s why in this article we will cover the most important things you need to know about requests for production. There's a lot of information in this guide — you can use the links below to jump to specific sections.
Table of Contents
1. What Is a Request for Production of Documents (RFP)?
a. Common Objections to Requests for Production
2. What are the Rules for RFPs?
a. FRCP Rule 34
b. FRCP Rule 26(f): Meet and Confer
3. Preparing for Requests for Production of Documents
4. Requests for Production of Electronically Stored Information (ESI)
5. How to Respond to RFPs
6. How to Overcome Common Challenges in Document Production
7. Requests for Production Templates and Samples
8. How Pagefreezer Can Help with RFPs
9. Additional Resources
10. FAQ
What Is a Request for Production of Documents (RFP)?
A request for production (RFP) is an eDiscovery process 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.
Requests for production often reveal crucial information that can shape the outcome of a case. As such, parties involved in a legal matter are obligated to respond to Requests for Production, either by producing the requested information or by providing a written explanation as to why the documents cannot be delivered.
Common Objections to Requests for Production
Pushback against requests for production is common. Recipients may raise objections to the RFP, often to protect against undue burden, or request additional information or clarification about the documents requested.
Here are some common reasons legal teams give for not producing requested documents:
- The documents are considered ‘privileged’ (ie. they’re covered by attorney-client privilege, spousal privilege, doctor-patient privilege, etc.)
- The documents have been destroyed
- The documents are no longer in their possession
- Delivering the documents requested would be overly burdensome or expensive
- The documents requested are irrelevant or not likely to produce relevant evidence
- The request would result in “unwarranted annoyance or embarrassment”
- The documents require a legal analysis or request legal opinion
- The documents reveal analysis, strategy, or thinking about the case
- The request is uncertain, ambiguous, confusing, or vague
That said, simply stating that you can’t deliver requested information is not good enough. Failing to preserve important evidence is also not an excuse and can have serious consequences.
Rules (like Rule 37 of the Federal Rules of Civil Procedure) have been put in place to keep parties accountable.
What are the Rules for Requests for Production of Documents?
In the US, the processes that govern RFPs can vary between states. For example, California's RFP rules are known for their detailed requirements regarding the organization and categorization of documents. Meanwhile, Texas rules, under the Texas Rules of Civil Procedure, put a strong emphasis on describing the requested items with reasonable particularity and specifying the procedures for testing or sampling the items.
As a general overview, 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.
Federal Rules of Civil Procedure Rule 34
Federal Rule of Civil Procedure 34 articulates the framework governing requests for production in federal courts. It delves into specifics of how, what, and when such requests should be made. 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.
(b) Procedure.
(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.
FRCP Rule 26(f): Meet and Confer
Rule 26(f) of the Federal Rules of Civil Procedure governs the conduct of civil litigation in United States federal courts. Rule 26 is broadly focused on the discovery process, where parties to a lawsuit exchange information relevant to the case. The subsection (f) of this rule is a specific provision regarding the pretrial conference, often referred to as the "meet and confer" requirement.
The 'Meet and confer' rules require that before serving or responding to a request for production, parties must discuss their respective document needs and come to agreements or disagreements about the scope of requested materials. It is an opportunity for the parties involved to discuss RFPs in-depth and may take place in person or through written communication. It provides a platform for both parties to voice concerns, ask for clarification, or potentially reach agreements about the scope of the request for production, which can save time and resources down the line.
The ‘meet and confer’ rule is an essential step in the civil litigation process and intends to lay the groundwork for productive and efficient discovery. (You can learn more about FRCP Rule 26(f) here.)
Preparing for Requests for Production of Documents
Whether you’re responding to or requesting a production of documents, there are several important aspects to consider as you evaluate which documents you ask for or produce.
1. Relevance
Documents requested should contain information that can prove or disprove a fact at issue in the litigation. Understanding the case's specifics is crucial to determining which documents are relevant.
2. Scope
Requests for production should be clear and specific but also broad enough to encompass all potentially relevant documents. Overly broad requests can lead to disputes and may be challenged for being unduly burdensome. Conversely, when responding to an RFP, make sure to carefully assess the request to ensure compliance but avoid the inclusion of non-relevant documents.
3. Privilege
Be vigilant about privilege on both ends. Ensure that any documents you requested do not infringe upon the opposing party's privileges, and similarly, protect your client's privileged documents from being inadvertently disclosed. Identifying and withholding privileged documents is critical to preserve these protections.
4. Format and Organization
Documents can be requested in various formats (electronic, paper, etc.) and may need to be organized in a specific manner. Properly formatting and organizing the documents can facilitate a smoother review process and ensure compliance with the request.
5. Preservation
Once litigation is anticipated, all parties have a duty to preserve potentially relevant documents. This includes halting regular document destruction policies and ensuring that electronic documents are not deleted. Failure to preserve can lead to sanctions and adverse inferences.
6. Authentication
Documents produced may need to be authenticated for use as evidence in court. This means the party submitting the documents must be able to verify that the documents are genuine and unaltered. (Learn more about evidence authentication here.)
7. Confidentiality
Some documents may contain sensitive or confidential information. In such cases, parties may need to agree on protective orders to ensure that the information is not disclosed more widely than necessary.
8. Timeframe
The documents requested usually pertain to a specific timeframe relevant to the dispute. Parties should be clear about the relevant dates to ensure the production is focused and relevant.
Navigating these preparations effectively can streamline the discovery process, ensuring that both requests and responses are conducted in a manner that upholds legal standards and advances the interests of the clients.
Common Documents Requested for Production
Now that we understand the legal framework for RFPs and how to prepare for responding to or requesting documents in the discovery process, it may be helpful to understand the most common types of documents requested for production.
- Emails, Text Messages, and Other Correspondence: Any communication between parties that can show intent, knowledge, or actions relevant to the case is essential to preserve.
- Contracts and Agreements: Legal documents outlining terms of agreements are essential in litigation involving a breach of contract or employment disputes.
- Employee Records: Information on hiring, performance, or termination are important in employment disputes.
- Financial Records: Ledgers, bank statements, and invoices can reveal financial misconduct or valuations.
- Technical Documents: Patents, technical specs, or project plans can be key in intellectual property or construction litigation.
- Meeting Minutes: Records of discussions and decisions are useful for proving knowledge or actions of corporate entities.
- Policies and Procedures: Company guidelines or standard operating procedures are relevant in cases alleging negligence or non-compliance.
- Medical Records: Health information is critical in personal injury or malpractice claims. These records are often privileged and subject to privacy concerns.
- Property Records: Deeds, leases, and titles in cases of real estate disputes.
- Social Media Content: Posts, replies, likes, and reposts can reveal insights into behavior or surface statements relevant to the case.
- Research and Development Records: Plans, notebooks, product design documents, testing results, and progress reports could all be relevant in disputes involving product development or patents.
- Marketing Materials: Brochures, website content, branded social media content, catalogs, press releases or creative materials can be evidence of how products or services were represented to consumers.
- Internal Memos and Reports: Can reveal internal discussions and decision-making processes.
- Enterprise Collaboration Platform Data: Keyword searches, user activity logs, specific team or user conversations, or even edited or deleted conversations can demonstrate intent, forethought, give more context into internal attitudes and behaviors in an organization, or provide evidence of bullying or harassment.
- Electronic Data and Metadata: These digital footprints can provide context or timelines not evident in hard-copy documents.
If you anticipate a legal matter, preservation of these common data sources will help you avoid issues with production that may result in motions to compel, fines, or other sanctions that could negatively impact the case.
How to Respond to a Request for Production of Documents
To help demystify the process of a request for production of documents, we’ve outlined a step-by-step process for responding to RFPs below that ensures parties comply with their legal obligations while protecting sensitive information. Note that this guide is NOT legal advice, but rather a general guide to help you think through the process of responding to an RFP.
- Review the RFP carefully: Understand the specifics of the request, including the types of documents and the timeframe for production. (Learn more about common document types requested.)
- Assess the scope and burden: Evaluate the practicality and resources required to comply with the RFP to identify any potential areas of objection or hardship.
- Gather documents: Once you have a clear understanding of the request and its scope, begin gathering the materials requested, ensuring that the process is legally sound and defensible.
- Organize and review documents: Organize the gathered documents for review and potential redaction to protect privileged or confidential information.
- Prepare the response: Draft a response to the RFP that complies with the request and presents the documents in a manner that is understandable and organized for the requesting party.
- Deliver the documents: Present the documents in a manner agreed upon during the 'meet and confer,' or in absence of an agreement, as mandated by the civil rules.
Requests for Production of Electronically Stored Information (ESI)
A request for tangible materials and physical documents is easy enough to understand and respond to, at least in theory, but what about electronically stored information (ESI)?
The prevalence of eDiscovery and ESI in modern legal matters has somewhat complicated the production of documents.
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, or text messages—and if legal teams aren’t keeping track of all these data sources, some unintentional destruction of evidence could take place.
Finding a particular piece of evidence in a mountain of data can also be difficult. 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.
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.
How to Respond to Requests for Production of Modern ESI
How would you respond to a request to produce a social media post or Slack conversation?
And how would you prove the authenticity of this evidence?
Screenshots seem like an obvious answer, but they are impossible to authenticate. Facebook, Instagram, Twitter and Slack’s own data exports offer another potential solution, but typically these JSON files lack context and are hard to understand.
An example of a social media post in a JSON viewer.
As Rule 34(b)(2) states, producing records in the correct format 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.
So how should a legal team respond to a request for production related to this kind of online data? The best way 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, and team collaboration 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, social media accounts, and collaboration tools like MS Teams, Slack and Workplace by Meta. 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.
Watch the video below to see Pagefreezer’s Legal Edition for Enterprise Collaboration in action.
How to Overcome Common Challenges in Document Production
The document production process isn't without its challenges. Understanding these challenges before you request or respond to an RFP could help you understand what requests you have reasonable right to reject or scope resources you may have to allocate to your eDiscovery process.
1. Volume and Complexity of Data
As we discussed earlier, the proliferation of ESI in various formats and locations can complicate the discovery process.
For example, if you’re asked to produce documents from a dynamic online data source like Microsoft Teams, the complexity and sheer volume of the data makes searching for, identifying, and capturing relevant documents incredibly difficult. Sorting, reviewing, and producing these documents can be time-consuming and costly.
To streamline this process, investing in a sophisticated eDiscovery tool that can sift through large datasets efficiently is essential.
2. Chain of Custody & Evidence Authentication
Ensuring that documents are not altered during the discovery process and maintaining a proper chain of custody to prove their authenticity can be tricky. Maintaining proper chain of custody for ESI, where digital documents and screenshots can be easily edited or manipulated, is even more fraught.
A proper chain of custody provides a clear record of who was responsible for evidence linked to a specific case at any given time, as well as the way that this evidence was stored, transferred, handled, and formatted.
When dealing with ESI, capturing metadata can provide context for your digital evidence. In fact, without metadata, your ESI is very likely to be denied in court. Producing your ESI with a digital signature and timestamp can also help demonstrate proper chain of custody and that the evidence has not been altered.
3. Native Formatting and Context
Requests for production will include particular specifications for the format and organization of the documents requested. Often, this will require ESI to be produced in its native format for ease in review and in order to preserve the context of the evidence.
As we discussed earlier, screenshots seem like an easy solution here, but do not meet chain of custody demands nor the metadata requirements to prove authenticity. Screenshots are not legally defensible.
Unfortunately, most dynamic online data sources like social media, enterprise collaboration platforms, or websites, don’t offer export functionality that can produce ESI in context, with native formatting, required metadata, or in an unalterable file format.
This is where eDiscovery tools like Pagefreezer really shine. Pagefreezer allows users to browse and produce ESI as if it were still live. Pagefreezer also enables users to export evidence in a variety of formats to satisfy RFP requirements, while also providing authenticity through digital signatures and metadata.
4. Handling Sensitive Information
Balancing the need to produce relevant documents with the obligation to protect sensitive or personal data under various privacy laws and confidentiality agreements requires careful consideration and often, the implementation of protective orders.
In many cases, using advanced redaction tools can help protect sensitive data, ensuring that privileged information is not inadvertently disclosed.
5. Time and Cost Management
Document production, if not managed efficiently, can consume significant amounts of time and resources. Additionally, teams may face limitations in terms of the technology or expertise available to handle complex document production tasks, especially when dealing with large volumes of data or sophisticated electronic discovery tools.
The expense of document production can be significant, particularly in large or complex cases, necessitating effective cost management strategies to ensure that the process remains economically feasible.
Implementing project management practices, such as defining clear roles and responsibilities, developing a project plan, and tracking progress regularly, can keep the document production process on schedule and within budget.
While the document production process may present various challenges, with strategic thinking, proactive measures, and the right tools, these hurdles can be mitigated or overcome.
Requests for Production Templates and Samples
Each state and jurisdiction will have their own procedures and processes for requesting documents for production. Before you create or respond to an RFP, you need to familiarize yourself with your local legislation.
For general purposes, it may help to review sample RFP templates to get a sense of what you need to include in your RFP and how it should be structured. Below are some requests for production templates and samples.
From California Courts Self-Help Guide:
- Request for Production Template
- Response for Request for Production
- Blank Request for Production Responses
From Thomson Reuters Practical Law:
- Requests for Production of Documents Toolkit (Subscription)
From National Consumer Law Center:
From Sacramento County Public Law Library
From Miller & Zois Attorneys At Law:
How Pagefreezer Can Help with RFPs
With the average civil case consisting of more than six million pages (100+ gigabytes of data), legal professionals need more effective ways of managing large volumes of digital information.
Pagefreezer provides eDiscovery tools that allow you to not only capture crucial data in real-time, but also manage it efficiently—quickly search, review, and export for litigation.
Real-Time Collection and Preservation
Collect and preserve websites, social media, mobile text messages, and enterprise social media networks automatically and in real-time so you never find yourself without that crucial piece of evidence.
ESI Search and Export
Use advanced search to quickly search through hundreds of thousands of records for that particular post, comment, or even emoji that’s relevant to a legal matter at hand. Export it in defensible format with the click of a button.
Retention Scheduling and Legal (Litigation) Hold
Easily set retention schedules for online data that align with the existing policies of your organization. Place a user or piece of data on legal (litigation) hold to prevent it from being disposed of as part of routine disposal.
See Pagefreezer in Action:
Additional Resources
- eDiscovery: Frequently Asked Questions
- Pagefreezer for eDiscovery and Litigation Readiness
- What Is Chain Of Custody?
Requests for Production of Documents FAQ
1. What is a request for production of documents?
A request for production of documents is a legal process used during the discovery phase of litigation.
See What Is a Request for Production of Documents (RFPs)?
2. Who can issue a request for production of documents?
Typically, any party involved in a legal matter can issue a request for production of documents to another party involved in the litigation. In some cases, third parties may also be compelled to produce documents.
3. What types of documents can be requested?
Whether material or digital, almost any kind of document can be requested.
See Common Documents Requested for Production.
4. Are there any limitations on what can be requested?
Yes, requests must be relevant to the legal proceedings and not overly burdensome or intrusive. Privileged communications, like those between an attorney and their client, are generally exempt.
See What are the Rules for RFPs?
5. How do I respond to a request for production of documents?
6. What happens if I can't find all the requested documents?
You should inform the requesting party and the court about the inability to locate certain documents, explaining the efforts made to find them.
See Common Objections to Requests for Production.
7. Can digital data be requested?
Absolutely. Digital data, including emails, texts, and files stored on computers and servers, are frequently requested in modern litigation.
See Requests for Production of Electronically Stored Information (ESI).
8. How are electronic documents handled differently from paper documents?
Electronic documents may require specific formats for production and might involve metadata. Special considerations for privacy, security, and data retrieval also apply.
See How to Respond to Requests for Production of Modern ESI.
9. What is eDiscovery?
eDiscovery refers to the process of seeking, locating, securing, and searching electronic data with the intent of using it as evidence in a legal case.
Learn more about eDiscovery here.
10. Can a request for production of documents be challenged?
Yes, if a request is considered unreasonable, irrelevant, or overly broad, it can be challenged or negotiated.
See Common Objections to Requests for Production.
11. What are the consequences of failing to comply with a request?
Non-compliance can lead to legal penalties, including fines, sanctions, or adverse rulings in the ongoing litigation.
12. How can I prepare my business for potential document production requests?
Implementing a document management system, establishing clear policies for document retention, and regularly training staff on these policies can significantly ease the burden of responding to requests.
