Like interrogatories (which were discussed in the previous blog: Civil Litigation 101: What are Interrogatories?) a Request for Production of Documents is a useful tool for lawyers to gather information during the discovery phase of litigation. A Request for Production of Documents, simply, is a formal written request directed to an opposing party to provide documents or other physical or tangible evidence regarding the subject matter of the lawsuit. The responding party is then obligated to provide a written response indicating and/or detailing whether it will make available for inspection or copying the documents requested or whether such request is refused (and if so, why the request is refused). In Maryland, Requests for Production of Documents are governed by Rule 2-422:
Rule 2-422. Discovery of documents, electronically stored information, and property
(a) Scope. Any party may serve one or more requests to any other party (1) as to items that are in the possession, custody, or control of the party upon whom the request is served, to produce and permit the party making the request, or someone acting on the party’s behalf, to inspect, copy, test or sample 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, translated, if necessary, by the respondent through detection devices into reasonably usable form) or to inspect and copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 2-402 (a); or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on the property, within the scope of Rule 2-402 (a).
(b) Request. A request shall set forth the items to be inspected, either by individual item or by category; describe each item and category with reasonable particularity; and specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form in which electronically stored information is to be produced.
(c) Response. The party to whom a request is directed shall serve a written response within 30 days after service of the request or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later. The response shall state, with respect to each item or category, that (1) inspection and related activities will be permitted as requested, (2) the request is refused, or (3) the request for production in a particular form is refused. The grounds for each refusal shall be fully stated. If the refusal relates to part of an item or category, the part shall be specified. If a refusal relates to the form in which electronically stored information is requested to be produced (or if no form was specified in the request) the responding party shall state the form in which it would produce the information.
(1) A party who produces documents or electronically stored information for inspection shall (A) produce the documents or information as they are kept in the usual course of business or organize and label them to correspond with the categories in the request, and (B) produce electronically stored information in the form specified in the request or, if the request does not specify a form, in the form in which it is ordinarily maintained or in a form that is reasonably usable.
(2) A party need not produce the same electronically stored information in more than one form.
Keep in mind, in Maryland, the scope of discovery is broad. Courts will allow the discovery of documents and tangible items that may not appear to be directly related to the subject matter of the lawsuit so long as those documents and tangible items are relevant to the subject matter involved in the action. The types of documents sought in a Request for Production of Documents depend on the facts of each individual case. For example, in a case involving a car accident, a litigant might seek photographs of any damage to the vehicles involved, medical records relating to any injuries sustained in the accident, and copies of a police report indicating whether one party was at fault for the accident. Generally, a Request for Production of Documents may require a party to produce the following:
- Bills for medical care;
- Bills for repair of damaged property;
- Expert witness information including reports prepared by expert witnesses and an expert’s resume or curriculum vitae;
- Medical records, including records from physical therapists, psychologists or counselors;
- Statements made by a party, such as statements given to an insurance company after an automobile accident or given to police officer in connection with the making of a police report;
- Financial records, including bank statements, invoices, payment receipts, and tax returns;
- Audio or video recordings;
- Photographs, X-Rays, or other graphic depictions;
- Insurance policies;
- Contracts and change orders (typically in Construction Litigation);
- Drawings, plans, schematics; and,
- Electronically Stored Information or “ESI.”
ESI includes document metadata; e-mails; instant messages sent and received; internet service provider e-mails (i.e. yahoo mail, hotmail, AOL); website visiting activities; internet browser histories; PDA synced data; Outlook or other calendar entries/appointments; voice mail messages/deleted voice messages; folder names/file directory; master file table; images-including all website images visited; spreadsheets; draft spreadsheets; financial records including tax and accounting information; facsimiles sent and received; file access history from company servers and/or Internet, contact lists; credit card numbers/online credit card transactions; history of Internet searches by search criteria; blogs; company records; inventory of all external hardware devices connected to computer (i.e., external media devices, printers, back-up systems etc.); inventory of all software applications installed on the computer; deleted data files; and, other data compilations from which information can be obtained, translated, if necessary, through detection devices into reasonably usable form.
Not all ESI, however, is obligated to be produced. Maryland Rule 2-402(b)(2) provides:
(2) Electronically stored information not reasonably accessible. A party may decline to provide discovery of electronically stored information on the ground that the sources are not reasonably accessible because of undue burden or cost. A party who declines to provide discovery on this ground shall identify the sources alleged to be not reasonably accessible and state the reasons why production from each identified source would cause undue burden or cost. The statement of reasons shall provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information in the identified sources. On a motion to compel discovery, the party from whom discovery is sought shall first establish that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the party requesting discovery shall establish that its need for the discovery outweighs the burden and cost of locating, retrieving, and producing the information. If persuaded that the need for discovery does outweigh the burden and cost, the court may order discovery and specify conditions, including an assessment of costs.
Moreover, parties do not have to produce any documents which are protected by a claim of privilege (attorney-client privilege, for example) or protection. Prior to producing documents to the opposing party in a case, an attorney should review the documents to ensure that things like the attorney’s work product or confidential communications between the attorney and client are not produced.
Once produced, if the parties stipulate or if the documents or other tangible evidence are properly authenticated in accordance with the applicable rules of evidence, the documents may be used at trial of the lawsuit.