Vol. 54 No. 8

Trial Magazine

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Follow the Paper Trail

Mark R. Kosieradzki August 2017

Document discovery is essential to building a case, but defendants usually fail to produce everything you request. Strategic use of Rules 30(b)(2), 30(b)(6), and 34 can ensure that you know what documents are missing and how to get them.


Truth is found in documents. Our challenge is to identify relevant documents and compel their complete production. Unfortunately, the traditional approach of using Rule 34 Requests for Production of Documents (RFP) often results in evasive and incomplete responses littered with boilerplate objections, leaving you with little means to verify whether the production is complete or whether responsive information has been withheld.

An alternative approach is to bypass the evasion with a document deposition. This is not a “records custodian” deposition. Those depositions rarely yield meaningful information.1 Rather, by using Rules 30(b)(2), 30(b)(6), and 34 together, you can depose a document production witness whose primary purpose is to establish whether the produced records are complete.

The procedure is simple: Instead of issuing an RFP, serve one deposition notice that uses all three rules. The Rule 34 request identifies the categories of documents that must be produced. Rule 30(b)(2) requires those documents and other tangible items to be produced at the ­deposition. Rule 30(b)(6) directs the organization to designate an individual to testify on its behalf about information known or ­reasonably available to the organization. The designee can be used to identify available documents, describe how the organization searched for those documents, and attest to the completeness of the documents produced.

The purpose of the document deposition is to identify missing records and enable you to create a factual record to compel production when the documents and responses are incomplete. Equally important, you can develop a fully vetted record on which the court can base its ruling on objections. Once you have established that the produced documents are complete, you may then question subsequent witnesses about those documents. And if the documents are incomplete, you would then file a motion to compel.

The Depo Notice

Start by identifying the documents you want produced, and tailor your Rule 34 request in the document deposition notice accordingly. All requirements of Rule 34 apply: The responding party has 30 days to respond, objections must be made within 30 days,2 and any objection not made within 30 days is untimely and therefore waived.3

By using Rule 30(b)(2) in the notice, you set the deposition date, which establishes the ­deadline by which the documents must be produced. The responding party cannot refuse to attend the deposition because it considers the deposition objectionable.4 It cannot unilaterally cancel a deposition.5 And it is up to the court to rule on objections.6 

But the real benefit of the Rules 30(b)(2), 30(b)(6), and 34 document deposition is the matters of examination—what documents the 30(b)(6) witness will be questioned about. Under Rule 30(b)(6), the organization must designate a person, or people, to testify about all information known or reasonably ­available to the organization regarding those matters of examination.7

By crafting a notice specifically designed to identify documents, you can build a record to ensure the organization has produced all the documents available to it—and to identify when it has not. As an example:

Pursuant to Fed. R. Civ. P. 30(b)(6), Defendant is required to designate and fully prepare one or more officers, directors, managing agents, or other persons concerning the following designated matters, who consent to testify on its behalf and whom Defendant will fully prepare to testify, regarding the following designated matters and as to such information that is known or reasonably available to the organization:

1. The existence of the documents and/or electronically stored data requested below pursuant to Fed. R. Civ. P. 34.

2. The systems, process, and purpose for the creation, duplication, and/or storage of the documents and/or electronically stored data requested below pursuant to Fed. R. Civ. P. 34.

3. Any and all documents and/or electronically stored data retention/destruction policies that relate to any of the documents requested below pursuant to Fed. R. Civ. P. 34.

4. The location of the documents and/or electronically stored data requested below pursuant to Fed. R. Civ. P. 34.

5. The organization, indexing, and/or filing of the documents and/or electronically stored data requested below pursuant to Fed. R. Civ. P. 34.

6. The method of search for the documents and/or electronically stored data requested below pursuant to Fed. R. Civ. P. 34.

7. The completeness of the documents and/or electronically stored data produced pursuant to Fed. R. Civ. P. 34.

Dealing With Objections

At the most fundamental level, the document deposition identifies the documents that exist in each category of your request. Defendants regularly preface every response with objections and then state that documents are being produced “subject to and without waiving” the objections. This type of response “hides the ball.”8 In Network Tallahassee, Inc. v. Embarq Corp., the Northern District of Florida identified the basic problem with such a response:

[A]n unscrupulous attorney could withhold properly discoverable information—a smoking-gun document, for example—and assert later that he did nothing dishonest because he had, after all, objected to the discovery request and simply withheld the information based on the (unwaived) objection. . . . A party met with a response of this kind may insist that the objections be explicitly waived or withdrawn in writing and, if they are not, may move to compel. The motion will always be granted, and fees will always be assessed, at least absent a reasonable­ explanation that is difficult to imagine.9

The court explained that a party can object to discovery or not—but a party cannot do both.10

But if counsel objects and then produces documents “without waiving” its objections, the burden is now on you to challenge the objections in a timely fashion. If you don’t, you may lose your right to later ask for a complete response.11 The document deposition helps you establish that the objection is spurious. 

For example, in response to a request for “all 2016 resident census records” from a nursing home, the party may produce documents “subject to and without waiving” an objection that the request is “vague, overly burdensome, and not calculated to lead to admissible evidence.” The document deposition can be used to demonstrate otherwise:

Q: When I use the term “resident census,” what do you think that means?

A: The number of patients in the facility.

Q: Is this a term you use in the daily operation of a nursing home?

A: Of course.

Q: Is there anything ambiguous about the term resident census to you?

A: No.

Q: Is resident census data kept on the computer?

A: Yes.

Q: Do you look at that data every day?

A: Yes.

Q: Is there anything hard about looking up that data?

A: No.

Q: Do you just call it up on the computer?

A: Yes.

Q: How long does it take?

A: A couple of seconds.

Q: Is it burdensome for you to call up that information on the computer?

A: No.

Q: Can you print it?

A: Yes.

Q: How hard is it to print?

A: You just hit the print button with the mouse.

The responding party can no longer argue that the term is vague or that the production would be overly ­burdensome. Once you have made a record, motions to compel are seldom necessary.

An Incomplete Record

The document deposition may reveal that the organization did not conduct a full search for responsive documents—this type of outcome shows how useful the deposition can be. Rule 30(b)(6) requires the organization to thoroughly investigate and prepare the witness to testify to information “known or ­reasonably available to the organization.”12 “Reasonably available” information includes all documents or items that the organization has the authority, legal right, or practical ability to obtain, even if the documents or items are not in its physical possession or are in the possession of a nonparty.13

In practice, the designee is seldom fully prepared and is often unable to adequately respond to the “matters” designated. If the record establishes that the designee is not fully prepared to provide all institutional information responsive to the document deposition notice, it is then possible to compel production. 

To establish that all documents are being provided, you must ask the document deposition designee

  • what documents fall within each category of documents specified
  • how those documents were created
  • how those documents are indexed
  • where the documents are stored
  • how the search was conducted
  • to personally verify that all documents have been produced.

By using Rules 30(b)(2), 30(b)(6), and 34 together in a single deposition notice, opposing counsel is essentially eliminated as an intermediary in formulating the record of whether a document exists, is discoverable, and is reasonably available. By creating a record through an adverse party’s own testimony, you enable the court to make an informed decision on a fully vetted record.


Mark R. Kosieradzki is a founder of the Kosieradzki Smith Law Firm in Plymouth, Minn. He can be reached at mark@koslawfirm.com. Copyright © 2017 Mark R. Kosieradzki.


Notes

  1. Records custodians seldom have sufficient information to verify that a complete search was conducted. Typically, they only have clerical knowledge as to what documents are in the file they control. They cannot describe what documents would fall under the description in the notice, what their purpose is, and locations of documents that are not under their control.
  2. Fed. R. Civ. P. 34(b)(2)(A).
  3. Microsoft Corp. v. Multi-Tech Systems, Inc., 2002 WL 273146, at *1 (D. Minn. Feb. 26, 2002) (internal citations omitted).
  4. Mitsui & Co. (U.S.A.) v. Puerto Rico Water Res. Auth., 93 F.R.D. 62, 67 (D.P.R. 1981) (citing 8A Charles Alan Wright et al., Fed. Prac. & Proc. Civ. §2035, 262 (3d ed. 2017)).
  5. Pac. Elec. Wire & Cable Co. v. Set Top Int’l Inc., 2005 WL 2036033, at *7 (S.D.N.Y. Aug. 23, 2005); Smith v. BCE Inc., 2005 WL 1523354, at *1 (W.D. Tex. June 22, 2005).
  6. See Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 533 (M.D. Pa. 2002) (internal citations omitted).
  7. Poole v. Textron, Inc., 192 F.R.D. 494 (D. Md. 2000).
  8. Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 190 (D.D.C. 1998).
  9. Network Tallahassee, Inc. v. Embarq Corp., 2010 WL 4569897, at *1 (N.D. Fla. Sept. 20, 2010).
  10. Id.
  11. See Lapenna v. Upjohn Co., 110 F.R.D. 15, 24 (E.D. Pa. 1986).
  12. Fed. R. Civ. P. 30(b)(6); Mitsui & Co. (U.S.A.), 93 F.R.D. at 67.
  13. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).