The Federal Rules of Civil Procedure cover two final discovery tools: Rule 34 covers requests for production of documents, and Rule 35 covers physical and mental examinations.
Requests for Production
“Request for production” is part of pretrial discovery whereby one party provides a written request to another party, seeking access to “specified documents or other tangible things for inspection and copying.”[1] As with all discovery tools, requests for production must be used to seek information reasonably calculated to lead to the discovery of admissible evidence, as required by FRCP 26(b).
There are two types of requests: those that ask for items to be produced, and those that request access to property that cannot be physically produced. The first type of request seeks production or permission to copy, inspect, sample or test something within the other party’s possession or control. A request for production can also cover electronically stored information as well as tangible items, such as damaged personal property.
A request to produce can seek specifically identified information “stored in any medium from which information can be obtained either directly” or indirectly via translation into a usable form. This would apply for example, if data is stored electronically, in computer code or in another language that needs to be translated before it is useful. A request could seek drawings, writings, charts, graphs, sound recordings, photographs, images, and other data or compilations of data.
Although a request to produce can seek any specifically identified tangible item,[2] it must be movable if a party is to produce it and it must be reproducible if the requesting party seeks to copy it. If an item is not reproducible, then it can be produced for inspection and photographing. If the item is immobile, then the request would be to enter upon property to inspect rather than to produce. This is the second type of request.
Requests to enter upon property permit the opposing party to enter onto property (personal or real) possessed or controlled by the responding party, to measure, inspect, photograph, survey, sample, or test the property itself or an object or operation on the property.[3] An example could be a plaintiff’s request to enter a defendant-manufacturer’s property to inspect their manufacturing process for a particular product if the lawsuit alleged that the product was manufactured in a defective manner.
Characteristics of the Request
The written request to produce must list with “reasonable particularity” each document or item to be inspected or the category to which the items belong; and must state the time, place, and manner of the permitted inspection. This means that the request must be specific enough to clearly communicate what opposing counsel wants to be produced or allowed access to. A request can also ask for one representative sample that can be used to sample the way in which a product line was manufactured.
A request must also address the way inspection is to be performed. It should include details regarding how the inspection will be conducted. In our manufacturing example, the request could state that the inspecting party wishes to view and record each step in the manufacturing process. This would make it clear that the party does not wish to generally tour the facility, but to identify, observe and record each step.
Requests for production cannot be served earlier than 22 days after the complaint is served.[4] A party must respond to a request to produce within 30 days of being served with it. However, if the request is served prior to the parties’ first discovery conference, the response is not due until 30 days after the first discovery conference. In the case of an early request, this may result in the answering party being given additional time to respond. Parties are free to stipulate to alternative deadlines or the court can order alternative deadlines, in the appropriate circumstances.[5]
Procedure and Objections
Procedures
Federal Rule 34 also outlines the procedures that apply to requests for production. First, the responding party must either “produce documents as they are kept in the usual course of business, or … organize and label them to correspond to the categories listed in the request.” This means that the requesting party can dictate the organization of production if he chooses.
Second, if the requesting party does not specify the form or the opposing party successfully objects to the requested form, then the producing party must produce the information either in the form “in which it is ordinarily maintained, or in a reasonably usable form.” The response must state whatever form of organization is used.[6]
Third, a responding party “need not produce the same electronically stored information in more than one form.”[7] For instance, he need not produce it both electronically, as on a flash drive, and in print. Either of the two forms will suffice.
Finally, if it is necessary due to the volume of information sought for a responding party to produce information in stages, then the response must indicate that stages of production are necessary and specify the beginning and end dates of production.[8] This rule recognizes that, at times, the information sought is so voluminous that it is not possible to produce everything sought either at one time or within the limited time allowed.
Objections
A response to a request to produce must either agree to the production or inspection as requested or object to the request. If a party objects, it must provide the grounds for the objection. If a request seeks entrance upon property for inspection, the responding party has the option of producing copies of the information sought instead of permitting inspection. If the responding party decides to produce copies instead of allowing inspection, then the information must be produced by the date and time as the requesting party sought for inspection.[9]
The responding party can object to requests for production in part or in full. The other party can responsed by failing to produce the materials due to the objection or can produce some or all the materials while objecting, and it must specify its course of action when objecting.[10] The responding party need not produce a list or description (known as a “log”) of the items withheld. However, it must provide enough information about the withheld materials to allow for meaningful discussion about the legitimacy of the objection.[11]
For example, assume there is a request to produce a plaintiff’s family’s financial records, but some of those records pertain only to the plaintiff’s spouse and are not related to the litigation. The party may respond by stating that it objects and indicate that the party is withholding his spouse’s financial records due to relevancy. The response would not have to include a list of the spouse’s documents that were withheld. However, the responding party would still have to produce of the remainder of the items sought.[12]
The party can also, for example, specify in response to a broad objection that he will only search documents in a particular place or generated within a specified time range because he considers documents beyond those parameters to be irrelevant.[13] In all such cases, the requesting party maintains the right to file a motion to compel, if he wishes to challenge the objection.
Production from Non-Parties
Rule 34 generally applied to requests for production from other parties to the litigation. If a party wants to obtain documents or inspect property of a non-party, then the party must use a subpoena, which is a document that commands the recipient to appear at a certain place or time, enforceable by a penalty for noncompliance.[14] It can also require the recipient to produce copies of items, or to allow access to a non-party’s property to inspect the property or an item on the property that is immobile and cannot be produced.
A subpoena duces tecum is a special kind of subpoena that a party can serve upon a non-party, requiring him to both appear and bring certain documents or tangible things.[15] These are commonly used to have a deponent produce items when he is deposed. At the deposition, the party who served the subpoena duces tecum can review, inspect, copy or photograph the documents or items produced.
Physical or Mental Examinations
A judge can order that a party undergo a physical or mental examination if the mental or physical condition of the party is at issue in the case. An example would be where a plaintiff is alleged to have suffered physical or psychological injuries because of the defendant’s negligence. Similarly, the court can order the examination of any person within the custody or control of a party to undergo an examination when that person’s physical or mental condition is at issue. [16] This would apply, for instance, if a child is in the custody of a party, and the lawsuit involves allegations that the party (i.e., the parent) is physically or emotionally abusive.
If a party is ordered to produce a person under his custody or control, then the party merely has the duty to use good faith, sincere efforts to produce the person for examination. If the party is unable to produce the person for examination despite good faith efforts, then no sanction will be levied against the party.[17] But a party failing to use good faith to do so may be sanctioned.
If a party moves for the examination and the examinee or another party objects, a hearing may be held. At the hearing, the court can only order an examination if there is “good cause” (a legally sufficient reason) for examination, and if notice of the hearing is given to all parties and the person to be examined. A legally sufficient reason would normally be that the physical or mental condition of the individual is at issue in the case. [18]
The Examiner
The order for an examination must state: who will perform it; where, when, what and how it will be performed; and the scope of the examination. Only a person who is “suitably” licensed or certified can perform the examination.[19] This means that the appropriate medical professional, trained to examine and address the type of issues alleged should be ordered to conduct the exam. Furthermore, the examination should be limited only to those issues that the professional is licensed to assess. The examining professional can be a medical doctor, psychologist, dentist or occupational therapist for example, depending upon the physical or mental condition that is at issue.[20]
Rule 35 authorizes the court to assess the credentials of the examining professional to ensure that no one is forced to undergo an exam by a professional whose testimony will be of little value. Simply because a professional is licensed or certified in a specialty does not mean that she will be acceptable to the court. However, it is not necessary that the professional be licensed in the same jurisdiction where the court sits or where the examination is conducted, so long as the professional is licensed or certified appropriately within his or her profession according to the rules of the jurisdiction where he or she practices.[21]
Reports from Examinations
Rule 35 also details requirements related to dissemination of the examiner’s report. First, the party who moved for the examination receives the examination report and must deliver a copy of it to the person or party examined, if requested. The movant must, at the same time, provide the party examined with copies of any similar reports of other examinations of that party that the movant had prepared.[22] This would apply for instance, to reports from examinations that were not court-ordered, but that the parties agreed to have completed prior to the court-ordered examination.[23] Likewise, any reports of any non-court-ordered examinations conducted subsequent to the court-ordered examination must also be provided to the party examined.
Second, after the movant delivers the court-ordered examination report to the party examined, the party examined must provide the movant with all similar reports related to the same condition.[24] If the person examined is not a party to the litigation however, the non-party is not required to produce like reports, if he can show that he could not obtain them.[25]
If reports are not exchanged as outlined by the rule, a party can file a motion to compel the provision of the reports to which he is entitled. If the party does not comply with the order, the court may apply sanctions, including the exclusion of medical testimony at trial.[26]
The examiner’s report must be written, and it must include details about the examiner’s conclusions, findings, diagnoses and the results of any tests that were conducted.[27] While doctor-patient confidentiality normally protects much medical information from disclosure, that privilege is waived when the patient places his medical condition at issue in the litigation. Furthermore, the privilege is waived as to all examinations of the same condition even aside from the court-ordered examination.[28]
Conclusion
Discovery is broad and encompassing process, and parties have a variety of tools available to assist in the acquisition of information – depositions, interrogatories, requests to admit, requests for production, and physical or mental examinations. At the same time, discovery is limited to deter unnecessarily protracted or expensive litigation, and to protect the parties from unnecessary or harassing intrusion upon their privacy. The rules encourage the parties to cooperate via stipulations that minimize the need for judicial intervention. Our course focused on the Federal Rules, so please remember to check the rules of civil procedure in your own state to determine how they may differ from the discovery rules discussed here.
[1]Black’s Law Dictionary(Seventh Edition, 1999). Definition: request for production, p. 1307. St. Paul, MN: West Group.
[2] FRCP 34(a)(1)(a) and (b).
[3] FRCP 34(a)(1) and (2).
[4] FRCP 26(d)(2)
[5] FRCP 34(b)(2)(A).
[6] FRCP 34(b)(2)(D).
[7] FRCP 34(b)(2)(E).
[8] FRCP 34(b)(2)(B), Committee Notes on Rules – 2015 Amendment.
[9] FRCP 34(b)(2)(B)
[10] FRCP 34(b)(2)((C).
[11] FRCP 34(b)(2)(C). Committee Notes on Rules – 2015 Amendment.
[12] FRCP 34(b)(2)(C)
[13] FRCP 34, Committee Notes on Rules – 2015 Amendment.
[14] Black’s, Definition:subpoena, p. 1440.
[15] Black’s, Definition:subpoena duces tecum, p. 1440.
[16] FRCP 35(a)(1).
[17] FRCP 35(a). Notes of Advisory Committee on Rules – 1970 Amendment, Subdivision (a).
[18] FRCP 35(a)(2).
[19] FRCP 35(a)(1).
[20] FRCP 35. Notes of Advisory Committee on Rules – 1991 Amendment.
[21] FRCP 35. Notes of Advisory Committee on Rules – 1991 Amendment.
[22] FRCP 35(b)(1).
[23] FRCP 35(b)(1). Notes of Advisory Committee on Rules – 1970 Amendment, subdivision (b)(1).
[24] Id.
[25] FRCP 35(b)
[26] FRCP 35(b)(5).
[27] FRCP 35(b)(2).
[28] FRCP 35(b)(4).