By Meghan Droste, May 15, 2019
I think it is fair to say that in a lot of ways, discovery is the heavy lifting portion of litigation. It is time-consuming and usually involves a lot of different moving pieces. It may also include some literal heavy lifting as you sort through, organize, and produce a significant number of documents. This installment of our discussion of discovery tips covers what to do (or not do) when responding to requests for production.
The first, and perhaps most important, tip is to actually produce documents and to do so on time. I know that seems pretty obvious, but, unfortunately, I have had to remind agencies of this very basic point more times than I can count. All parties have an obligation to timely respond to discovery. The failure to do so, including the failure to produce responsive documents by the deadline, can result in a waiver of any objections to the requests. See Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 619 (D. Kan. 2005). If you are unable to produce the documents by the deadline to respond to discovery, you must identify a specific date by which you will produce them. (You should also check in with the other side and request their consent to informally extend the deadline or to file a motion to extend it if needed.) Simply telling the complainant that you will produce the documents when possible is not enough, and may be considered a failure to respond. See Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 656 (D. Md. 1997) (“[A] response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) [of the Federal Rules of Civil Procedure] and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.”).
Producing the documents also means actually producing them. In the federal sector, it is generally insufficient to offer to let the other side come to your location to inspect the documents. See EEOC Handbook for Administrative Judges, Ch. 4, § II(B) (“As a practical matter, parties typically provide copies of the requested documents in lieu of inspection.”). (Yes, I have had an agency try to do this. No, it did not go well for them on the motion to compel.)
The second tip is to ensure that you have an adequate privilege log if you withhold any documents, or portions of documents, pursuant to any privilege. If you redact or withhold anything, you have the burden of proving that doing so is appropriate and necessary. See Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“The party asserting the privilege bears the burden of establishing all necessary elements.”). Your privilege log should state the privilege you are asserting, identify each document or portion of a document that you are withholding, identify the individuals who created or sent and received the document if it is an email, and provide a description of the information you are withholding. Failing to produce a privilege log, or producing an insufficient one may result in the judge finding that the agency waived all asserted privileges. See McNabb v. City of Overland Park, No. 12-CV-2331, 2014 WL 1152958, at *6 (D. Kan. Mar. 21, 2014). Finally, if you are redacting, avoid the mistakes Paul Manafort’s attorneys made, and make sure the text is actually redacted. Droste@FELTG.com