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The Paper Chase: Practical Tips for Writing and Responding to Document Requests

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The Paper Chase: Practical Tips for Writing and Responding to Document Requests

While not the most glamorous part of litigation, document requests are a key method for obtaining winning evidence. This CLE covers writing and responding to document requests during the discovery phase of a lawsuit. Participants will learn practical tips they can implement in their own practices to draft effective document requests and think strategically when objecting and responding to document requests served on their clients. Participants will also gain insight into negotiating the scope of document requests and preparing for motion practice along the way, in case those negotiations break down.

Presenters

Kelli Lanski
Attorney & Founder
The Career Files

Transcript

Kelli Lanski - Hi, and welcome to The Paper Chase, a CLE covering practical tips to help you write and respond to requests for production of documents, also called RFPs. I'm Kelli Lanski, and I'm a lawyer with over a decade of experience handling federal litigation, regulatory, and investigations work. I also founded and run The Career Files, a business dedicated to helping young lawyers thrive in this profession by addressing professional development and other skills you don't necessarily learn in law school.

Today we're talking about one task that litigators, junior and senior alike, will find themselves handling many times in their career, writing and responding to requests for production of documents, RFPs. It's not necessarily the most glamorous part of a lawsuit, but it is absolutely one of the most important. Document preservation, collection, review, and production is how we get a lot of the best evidence in our cases, especially when you consider that most cases will settle before trial. As a result, much of the evidence we use to encourage settlement and to get through critical points in the case, like class certification or summary judgment, comes down to the documentary evidence we use to build our arguments, attach to key legal briefs, and discuss with witnesses at depositions. In this CLE, I'm going to cover a number of practical tips that you can implement in your practice to make sure you're getting the documents you need and getting through the document request process smoothly and productively.

Here's what we're going to cover over the next hour. First, an overview of document requests and the applicable federal rules. Second, tips for writing requests for documents. Third, tips for responding to RFPs you receive from the opposing party. Fourth, negotiating requests. The written responses are often just a starting point compared to what ultimately gets produced. Fifth and finally, motion practice. What happens when you reach an impasse? How can you prepare for that along the way?

First, let's talk broadly about document requests. Why do they matter and why are they so important? As I noted, requests for documents are the major way we get documentary evidence in a case and learn about the facts. And of course, documentary evidence is critical. I've spent my career primarily working on antitrust lawsuits between corporations, and the best evidence and the smoking guns can almost always be found in custodian emails. Witnesses forget, witnesses even lie, but documents can be black and white proof of what was done. As a result, great documents can be used as deposition exhibits and brief exhibits in court filings, not only to build out the facts and build your case, but also to impeach witnesses at depositions, or at trial if you get there. And if you don't get to trial, documents can be great ammunition during settlement discussions. Does the other side really want this evidence to come out in a public trial, or is it better to end this case now?

That said, document requests and production lead to document review, the bane of many a junior lawyer's existence, especially nowadays where we can easily collect millions of documents for review at the click of a button. Thus, there's a balance to be struck between requesting enough documents to make your case or refute the other side's claims without making lives miserable with months and months of review of those files. The tips I'll discuss today should help you think strategically about how to strike the right balance in your cases. With that background in mind, let's talk about the applicable rules. They vary by jurisdiction of course. I'm focusing on The Federal Rules of Civil Procedure in this CLE, and the key federal rules are 26 and 34. However, whether you're practicing in state or federal court, you should also review your local court's rules, your judge's rules, and any key documents in your case, like a case management order or an electronically stored information, also called ESI, protocol, key decisions in your jurisdiction, and before your judge can also help you draft winning RFPs or objections.

Let's spend a little bit of time talking about rules 26 and 34, first rule 26. This is a lengthy and important rule of civil procedure. For purposes of this CLE, I wanna focus on rule 26 B, which addresses the scope of discovery. If you've litigated for any amount of time in federal court, you are hopefully already pretty familiar with this rule and its requirements. 26 B one addresses the scope of discovery, and it states that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Considering the importance of the issues at stake in the action, the amount in controversy, the party's relative access to relevant information, the party's resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery may not be admissible in evidence to be discoverable.  There's a lot there in that one paragraph, so let's unpack it a little bit. In short, you can obtain discovery of documents or things if they are nonprivileged, relevant to a claim or defense, proportional to the needs of the case considering various factors, including the importance of the issues at stake, the amount in controversy, the party's relative access to the relevant information, their resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the discovery will outweigh the benefit. A document may not be admissible to be discoverable, and always remember that relevancy under rule 26 B one is a broad standard.

That's not the only part of the rule that is important for today's discussion. You should also familiarize yourself with 26 B two B and 26 B two C. 26 B two B states that a party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. And on a motion to compel discovery, the party from whom the discovery is sought must show that that information is not reasonably accessible, because of that undue burden or that cost. So the burden flips to the party being asked to produce documents to make that showing. This happens with relative frequency. In the pandemic, for example, it's come up many, many times in several of my cases. For example, documents were located at a client's headquarters. This was near the beginning of the pandemic when office buildings were essentially shut down, and so the argument was that the documents were inaccessible due to a pandemic-related lockdown. If the party makes the showing that the documents are inaccessible, then the court can still order discovery if the requesting party shows good cause. That is a higher standard, but it is possible if you do show good cause. In my opinion, and in fact in the cases that I've worked on, it's pretty tough to show good cause in a situation like a global pandemic, especially if discovery had been ongoing for months or even years and the documents could have been requested earlier.

26 B two C addresses when a court should limit the frequency or extent of discovery, even if the discovery is otherwise allowed by the federal rules, and there are a few times when that is appropriate. One is when the discovery sought is unreasonably cumulative or duplicative, or it can be obtained from some other source that is more convenient, less burdensome, or less expensive. If the party seeking discovery has had ample opportunity to obtain the information through other discovery in the action, in my last example, concerning documents sought during the pandemic, in some of my cases, those were documents the other side could have sought months before the pandemic was even on anyone's radar, yet chose not to, and so this really highlights the importance of asking for documents when you identify them, which is something I will discuss a little bit later. And finally, if the proposed discovery is a outside the scope permitted by 26 B one. Another important rule for you to keep in mind is 26 G, and this requires you to know and to understand and to comply with your duty as an attorney. An attorney for the party must sign the requests or the responses as appropriate, and doing so certifies to the best of your knowledge that that request or that response is consistent with the federal rules, was not served for an improper purpose, like harassment, and is not unreasonable or unduly burdensome.

One note on this for you, so you may be aware just generally from your investigation into your case, your discussions with your client, where relevant information is located. You may think you know the answer to some of the requests you receive without even discussing them with your client. To fulfill your duties as a lawyer and including under this rule, make sure you always discuss the request and the responses with your client anyway. Confirm the information, conduct a reasonable investigation to make sure you are being as truthful and as complete in your responses as you should be. During negotiations with the other side, they may press you on this a little bit, especially as I've done in my career if the responses I get back are kind of squirrely. That's something that I want to clarify with the other side, and there have been times when it turns out they didn't even discuss specific requests with their client or they didn't discuss with particular custodians where relevant information in response to the request would actually be stored, and so don't put yourself in that position where you are open to a potential spoliation or sanctions motion because you didn't conduct the reasonable investigation that you should have conducted under the rules and according to the law.

Moving on to rule 34, this rule allows a party to serve a request within the scope of rule 26 to produce or inspect or copy or test or sample documents, ESI, and tangible things, or permit entry onto designated land or property, all of these for discovery related purposes. So this rule is actually broader than just documents and ESI, but for purposes of this CLE, we are focused on documents and ESI. If you issue a request under rule 34, you must describe with reasonable particularity each item or category of items to be inspected or produced, and you must specify a reasonable time, place, and manner for the production. You also may specify the form or the forms in which ESI should be produced, and here, just make sure you keep any discovery plan or ESI order in mind, and if you do choose to request that the party submit that ESI to you in a particular form, you wanna make sure that you are following any orders that are already in place in your case. Rule 34 addresses the timing of making discovery requests, and most often you'll serve RFPs once discovery is open, or at least after the rule 26 F conference, which is a conference that happens early in the case and requires the parties to hash out lots of details about discovery and put together a comprehensive discovery plan.

However, you can serve RFPs before the rule 26 F conference, as long as you do so at least 21 days after the complaint and summons were served. That can actually help guide discussions at that 26 F conference. Just be careful, however, that you don't negotiate too narrowly if you are focused specifically on those RFPs that were served early. Discovery changes over time. You may ultimately seek broader requests later, and so you don't want your governing discovery plan or ESI order stemming from that conference to be too narrow. Rule 34 addresses responding and objecting to RFPs as well. If you are the responding party, you have 30 days after service or 30 days from your rule 26 F Conference if the RFPs were served early. Of course you can stipulate to another timeline, seek a court order doing the same. Your responses must either state that you will agree to the production requested, or you must state with specificity, there's that word again, the grounds for objecting to the request, including your reasons. Your production must then be completed no later than the time specified in the request, or at another reasonable time you specify in your response. Objections are obviously a major part of the RFP process. Your objection to an RFP must state whether any response of materials are being withheld on the basis of that objection, and if you object to part of a request, you must specify the part and then permit production as to the rest. Keep in mind that you do have an ongoing duty to supplement your responses, if for example you learned that your prior responses were incorrect or incomplete, and that duty to supplement applies throughout discovery to other types of discovery requests, in addition to rule 34 requests. You should review and get to know these rules very well. Links to the full text are included for you in the supplemental handout. You should make sure to read the commentary. It can be really helpful because it includes the committee's rationale when writing a rule, when amending a rule, and may also include examples that can help you understand what's required of you.

With that said, here are some key takeaways for you to remember. Be specific in your drafting, and that includes when drafting objections. Avoid boiler plate general objections. Remember that relevancy is defined broadly, and that proportionality is a critical concept when drafting and replying to RFPs, and that proportionality considerations will change over time as the case proceeds. Information is discoverable even if it's not necessarily admissible at trial, although it still needs to be relevant and proportional, and also take note that there is no limit in the federal rules to the number of RFPs you can serve, so you can serve as many as you feel you need, unless of course your specific jurisdiction, your court, or your case rules state differently.

Now that you have a deep understanding of the federal rules you should follow when drafting and responding to RFPs, let's get to some tips for writing document requests.

The first step to writing good RFPs is to think critically and strategically about what you need in discovery. There are some ways you can do that. I'm gonna walk you through my favorite ways to do that, the ways I found most helpful, and first and foremost is just to spend some time thinking and brainstorming. Brainstorm about the kind of documents you would find in your perfect world. These are the documents you would love to show a witness at a deposition, at trial, or attached to a brief. How can you craft a request looking for those kinds of files? You can also conduct internet searches. Google can be a great resource at many steps of a lawsuit, and particularly in discovery, searching key ideas, names, and terms relating to your case can help you identify smoking gun documents available on the internet, or at least references to them, and give you additional ideas about what else to look for or to ask for in discovery. In addition, public documents like SEC filings can be a treasure trove of information, including some really great party admissions. Searches can also help you identify key custodians for the opposing party. Often the parties will suggest custodians for whom they are willing to produce documents, but the list your opposing party identifies may not be a complete list. It may not take into account different case strategies or a focus that you have, and so you'll always want to keep in mind, who are the people you have identified as being especially relevant so that you can suggest and negotiate for them to be added as custodians as well.

You should review the pleadings when drafting discovery requests. The complaint, if you are the plaintiff, think about the documents you'd like to build out and support the complaint allegations. You should review the elements of your claims. Think about documents you need to support each element and request those. If you're the defendant, think about how you'll defend against the claims, and ask for documents supporting the allegations in the complaint, including documents that plaintiff referenced or relied on in drafting the complaint. Plaintiff should have support on a basis for their allegations, and you're well within your rights to ask for those sources. You should also review the answer and work through this same process, ask for documents supporting any facts asserted in the answer, counterclaims made in the answer, documents supporting affirmative defenses. You should also review the initial disclosures that were made under rule 26 A. They should include a description of the location of information and files the other party may use to support its claims or defenses, so you should absolutely request those files, and you should look to sample RFPs from similar cases. As lawyers, we very often don't need to reinvent the wheel entirely, so take advantage of work that you've done, work that your colleagues have done in similar cases, and build off of that. So reach out to colleagues in your firm, look through your old files, identify prior sets of RFPs you can review and you can transfer over to your draft.

Similarly, look to relevant cases, including any you found while researching or writing or responding to a motion to dismiss in your case, search PACER, Westlaw, Lexis, for RFPs from those key cases. As discovery documents, of course, RFPs will not normally have been filed on the docket, but if there was motion practice, either the RFPs at issue, and sometimes the full set of RFPs, will have been attached to the motion to compel filings. You should also take a look at important summary judgment filings and orders in key cases in your jurisdiction and relating to the issues in your case. What sort of evidence did the court cite in its opinion? What types of documents did the parties attach in support of their arguments? Can you draft RFPs seeking similar categories of documents in your case? Think about expert issues as well. In a monopoly case, for example, experts will duke it out over how to define the relevant market. Your RFPs can ask the other side for market studies, sales data, and other information that can help your expert with their analysis, and also potentially identify admissions by your opponent that in turn help your arguments about the relevant market. If, for example, your opponent's employees describe their market one way in their internal documents, and that way is very different from the way in which you anticipate their expert will be defining the market, that is information you can discover through document requests and production.

Once you have your strategy pinned down and you've thought through all of these issues, you can then put together your requests, so let's talk through some writing tips for your requests. Generally, you'll start with a definitions and instruction section. This is where you will define key terms and provide a structure for your opponent's response. Be aware of relevant rules here. Some terms may already be defined for you, either in a case document or by your jurisdiction. For example, the Southern District of New York has a local rule defining a number of common terms you'll find in RFPs and other written discovery requests, so you should follow those definitions rather than redrafting them and creating confusion and potentially motion practice that you will likely lose. Try to be consistent throughout your case when you define terms. For example, define the parties the same way each time, whether in a pleading or a discovery document, and think broadly, so that once a term is defined, you can use it in multiple RFPs. You can anticipate the other side's objections with your instructions, meaning you can instruct that the request be construed in a certain way to avoid an objection. For example, you could instruct that the request should not be construed to seek privileged materials created after the filing of the complaint.

Next, you will write your specific RFPs. When you do so, be clear. Avoid convoluted phrasing. Avoid legalese and jargon. Just get to the point. You should be specific when drafting your requests, but not too limiting. By that I mean occasionally you'll be aware of a specific document that you would like to see produced in discovery. Perhaps, sticking with my antitrust examples, you learned about an antitrust policy that your opponent has for its employees. You can request a copy of that policy in an RFP, but stop for a minute and think more broadly about similar policies you will also want. For example, if that policy covers only a portion of your relevant date range, you should draft a request to seek similar policies for your entire date range. If you're tempted to use language seeking any and all documents relating to some broad category of documents, please think again. Courts are very wary of that any and all phrasing because it is just naturally very broad. An opposing counsel will almost certainly object to that RFP as over-broad, and they will very likely have a point.

One way you can avoid writing over-broad requests is to skip a few steps in your mind to the negotiation with opposing counsel. If, for example, you were to ask for any and all documents relating to antitrust issues, how will that negotiation go? Well, the other side is likely going to ask you, "What do you mean by that? What do you mean by antitrust issues? What antitrust issues are you concerned with?" And in response to those questions, you would probably give examples. You would say, "Well, documents relating to monopolization are relevant. Documents relating to market share and market allocation are relevant," or maybe your case is about price-fixing. Those are much more specific types of documents that you're really and truly seeking, and therefore less susceptible to a characterization as over-broad. So my point here is that you should look for subcategories you can request, rather than drafting broad RFPs seeking very broad categories of documents. You should also avoid compound requests. Just like with any writing, if one request or if a sentence is getting too complicated, consider breaking it into two. This is of course easier on the responding party. They can parse through what you mean a little bit more easily, but it's also easier on you when you are negotiating the requests, because you can be clear about what you want and what you're fighting over if the request is much more focused.

Also keep in mind that the ultimate requests are then interpreted by document reviewers or by attorneys who are training document review software, and so they need to be able to understand what is relevant and what is not relevant based on the language of the requests. Clear, specific requests will help them to do that. When you are putting together your requests, do not delay. Ask for what you want now. Remember, as I said, there is generally no limit to the number of RFPs you can serve, and you can make subsequent requests throughout discovery, but in many cases, especially big complex cases with large scale document collections and reviews occurring early in discovery, proportionality concerns will become a much bigger issue later in the discovery period. By that, I mean if you hold off on seeking certain categories of documents at the beginning of discovery, by the time you submit those additional requests, your opponent likely has a much stronger argument to the judge to refuse production because they can walk the judge through a laundry list of all the work they've done so far in the case, the thousands or the millions of pages they've reviewed, they've produced, and it's a much stronger argument for them on proportionality grounds. That's, again, not to say you can't make later requests. I do it frequently with success, but if you are aware of a category of files you want at the outset of discovery, generally you should go ahead and seek them in your initial set of RFPs.

Another thing you should keep in mind as you write your request is the relevancy of each request. As you review prior cases, as you review and incorporate prior sets of RFPs, don't just blindly copy and paste to your draft. Make sure you understand why you're asking for each category of documents, because the other side, and certainly the judge, if you do end up in motion practice, will put you to the test during negotiations, during oral argument, and ask you to explain and justify the relevancy of each RFP. You may find it helpful for your own review, as you draft your RFPs, to group them by category into similar types of requests or types of documents. You can even use headers in your draft document to stay organized and ensure you don't forget any key categories of documents. That said, I would always delete those headers before serving my RFPs on the other side, just because, in my opinion, there's no need to give them a blueprint to your discovery strategy. Of course, you're not always writing document requests. You are often responding to document requests served on your client, so let's talk about some tips for doing that well and within compliance of the rules. The first thing you'll really need to consider at a high level with respect to a response to a document request is should you object. Discovery can be very adversarial these days, but remember, its purpose is really to identify the relevant facts in the case. It's a fact-finding mission, so don't refuse simply for the sake of refusing. You should also consider how you could use the documents that the other side is requesting. There may be categories of documents that you initially think you wanna refuse, but upon reflection realize they may actually be helpful to your arguments.

Another topic you should consider when thinking about your overall response strategy is the possible sources of production. How accessible are the documents the other side is requesting? How expensive would it be to collect and review them? Are you at the end of discovery, and they are now making a late-breaking and complex request, but they had ample opportunity to seek these documents at an earlier point in time before you'd done a lot of other work and expended other resources on discovery? Are the documents more appropriately sourced from somebody other than your client? If the opposing party is seeking documents that are equally accessible to both of you, perhaps some sort of publicly-filed documents or other public materials you can obtain from a third party, you can direct them to that source instead of your client. And of course you should consider whether the proposed discovery is outside the scope of rule B 26 one, and that again is the relevancy provision, and as we discussed earlier, remember that relevancy is broadly defined under the federal rules, so keep that in mind, and also keep in mind that the discovery need not be admissible in order to be producible. Admissibility is generally a later fight in the case.

Also keep in mind that one way you can ultimately limit your response to a request is to agree to search and produce documents from certain files, like a centralized company database you can access easily, rather than custodian files, where the requested information could be spread across numerous people across many years. And it is true that some documents will be more appropriate for production from one source versus another. For example, if the other party is seeking financial information about your client, it might be easier for you to agree to produce some financial statements pulled from a company database or a centralized company location, rather than including somebody like your CFO as a custodian and then having to review lots of their emails to identify financial information. It's often much easier to identify one source where the information is neatly encapsulated. That's going to be more helpful for you in terms of review and production, and ultimately using the information in addition to being a little bit easier for the opposing party, so it's a mutually beneficial decision to produce from that one centralized source versus all custodian files or a number of other sources.

Now, what does your actual response look like? Well, generally it's going to mirror the requests, so you will start with your response to the definitions and-or instruction section. You should make specific objections if you have them to those definitions and also to those instructions. If you are objecting to a specific definition and you want to redefine the term, you can do so in this top section of your response, and that tells the other party, "When I use this term in my responses, this is how I mean it," and then you'll have a section responding to each RFP, and for each RFP, you'll need to decide whether you're going to agree to produce the documents requested, whether you're going to make specific objections to the request, in whole or in part, and if you're going to offer to meet and confer to discuss the request, or some combination of all three options. Objections, as I've said, are a major part of a response to a rule 34 request.

When you are objecting, above all, always avoid blanket boiler plate objections. This instruction stems from the 2015 amendments to rule 34, which specify that objections must be specific. Prior to that time, you would frequently receive RFP responses from an opposing party that would start with a lengthy general objection section, and in that section of the response, the responding party would list every and any objection imaginable, vague, confusing, irrelevant, privileged, just a laundry list of objections, and then when they got to the specific RFP section would incorporate those general objections into every answer, so the response to one RFP would read something like, "Party incorporates general objections into this response and further responds as follows." For the serving party, that was super, super annoying, because you couldn't tell from the written response what the party was actually objecting to and what they were truly agreeing to produce, because even if they would ultimately make some agreement to produce within an RFP response, they would still incorporate those general objections, so you weren't clear as to what was getting produced, where the objections started and stopped, and it was really just a lazy way to draft responses, and a way for the producing party to really hedge their bets, and it forced lots of lengthy drawn out negotiations between the parties to clarify where the producing party was truly drawing lines in the sand. The 2015 amendment was intended to do away with all that to make it very clear what you're responding to, so now you are no longer allowed to issue those general objections. So whereas you would usually tend to see something like "Party objects to request number one to the extent that it is vague," now you'll need to explain what is vague, first of all, is it vague or isn't it, and then what is vague about the request? So a better objection and a proper objection now would point out what specifically you think is vague in the request. Is there an undefined term? Did the serving party not specify a timeframe?

In addition, in your response, if you're willing to produce some portion of a request, you need to say so. So if, for example, you're willing to produce documents in response to a request, but only from one source or only for a particular year, let the opposing party know. Now you have a starting point for your negotiations. You should also try to avoid objections that the parties have really already anticipated or addressed elsewhere. For example, if you have a protective order in place addressing the production of confidential information and perhaps limiting who can view that information in the case, that's going to diminish if not outright remove the need to make any objection to the production of documents your client feels are confidential, because you already have a procedure in place to protect those materials.

So with that in mind, let's talk about some of the typical objections within the rules. First, remember rule 26 B two C that we discussed earlier, and that states that on a motion or on its own, the court can limit or really should limit the frequency or extent of discovery otherwise allowed by the rules if it's unreasonably cumulative, duplicative, can be obtained from some other source that's more convenient, less burdensome, or less expensive, so these are all objections that you can make in response to an RFP. In addition, if the party seeking discovery had ample opportunity to obtain the information elsewhere as I discussed, and of course, if it's outside the scope of rule 26 B one. Other objections you tend to see frequently are that a request is vague, confusing, irrelevant, over-broad, privileged, not proportional. Remember rule 26, again, it gives you factors to consider for a proportionality argument, like the amount in controversy in the case. These are arguments you can incorporate into your objections, and when you do write your response and draft your objections, again, please be clear.

For example, if the requesting party seeking documents from your client's sales team on a particular issue. You speak to your client, you investigate this RFP, because remember, that's part of your duty as the responding lawyer. You determine that the sales team doesn't actually work on that issue. Explain in your response that the request is not relevant to any claim or defense because the sales team is not involved in that topic, in that issue, and so you will not search for or produce documents in response to that request. Other considerations you should make when responding to RFPs is whether you should offer to meet and confer. Frankly, if you serve a whole host of objections on the other side, a meet and confer is inevitable, because if they decide to go to the court on motion practice, most courts will require the parties to have negotiated about the RFPs before running to the judge, but it can also be a helpful negotiating tactic for you if you do offer to meet and confer right in your responses, because if you are serving a number of objections, but ultimately you are willing to discuss your position with the other side, that can help soften some of the objections, and when you do go to court, it's harder for them to portray you as being unreasonable when you've told them outright in your objections, "Here are objections that said we are willing to talk to you." You should also consider whether to make a production with your response and objections. In the large, complex cases I've worked on, you almost never make a production or receive documents with the responses. It's just too big an undertaking to complete in the 30 days you have to respond. There's too much to negotiate in terms of the content of the production, the sources of the production, but every case is different, so make sure that you understand and are complying with any orders and rules in your case about the timing of production. When you're putting together your responses and objections, you may find it helpful to do some research on whether your intended objections are reasonable and allowed.

In the supplemental materials for this CLE, there's a link to a Sedona Conference primer, a document which discusses rule 34 and references several case summaries pointing you to decisions where courts have discussed just that, when RFPs, when objections are reasonable, comply with the rules, and when they are outside the scope of rule 26 and of rule 34. As I said earlier, the RFPs and the responses to the RFPs tend to be a starting point for negotiations about what will ultimately get produced. In every case I've worked on, the vast majority of requests were negotiated by the parties. As I said, documents were not produced with the responses, and the producing party served many, many objections on the requesting party. So negotiations are a necessity, and these negotiations typically occur through what's known as the meet and confer process, usually a teleconference or a series of calls where you hash out the final positions with your opposing counsel. So here are some tips for preparing and conducting those meet and confers.

As an initial note, even if you hope you can resolve your disputes, conduct yourself as if all of your emails, as if the history of the dispute, will go before the court. Communications between the parties are frequently attached as exhibits to motions to compel on discovery issues, and the court and the court's clerks will read those communications. You can also think of this as the front page test. Would you be embarrassed if your communications ended up on page one of the New York Times? Second, always read and be familiar with your judge's rules. They may have requirements for filing a motion to compel. You frequently have to meet and confer with your opponent before filing a motion, sometimes more than once, and often over the phone and not simply via email. You may have to describe those efforts in your motion to compel, so check for that and always check for changes to the rules. Discovery can last months if not years, and judge's rules may and do change over time.

Get yourself organized. I love a chart for this. I put together a chart with at least four columns. The first is the requests, so each request gets its own row. Then I include the responses. Then I include my comments, my notes for the meet and confer, for example, questions I have for the other side, maybe notes to myself about the relevancy of a particular request if I served them, and finally, a blank column where I can input notes and key takeaways from the meet and confer itself. Using a chart like this keeps the vital information in one place, it's cleanly organized, and as I discuss later, if you do end up in front of the court, you can often use some of your chart as an exhibit or as a talking piece during your oral argument.

You should also plan out the structure of your call. This may be something you wanna discuss with opposing council when setting up the meet and confer, so you set aside enough time and you are both prepared to discuss the same topics, and you may need more than one meet and confer call even if your judge doesn't require more than one, but you may need more than one if one party served a large set of a RFPs or if there are a number of objections, so take your time. You can structure the call in several ways. Topics you may want to include upfront include big picture issues like date ranges for collection and production, custodians, key sources to be pulled, like laptops or emails, or centralized company files. You likely discussed a lot of this with your opponent during the 26 F discovery conference, but working through specific document requests is often a good time to revisit and firm up those initial plans. You can discuss whether you wanna use search terms, technology assisted review, to review the universe of documents. That can have a major impact on the burden to the producing party, which in turn affects proportionality concerns.

Another good topic to discuss upfront are any broad objections the producing party has to a defined term, for example, something that will have implications for many of these specific requests, and of course, you will want to discuss the specific requests and the objections. If you can group some RFPs together for your call, that can help the call to proceed more efficiently. Just be careful there. You don't want to inadvertently forget an issue because you're moving too quickly, and I have found that it is often better to take the more tedious path of going one by one through the requests, clarifying the request, clarifying the response, the objections, especially when you're the party that served the requests, because it helps you understand where the producing party is drawing those lines in the sand. Finally, think through your ultimate positions, final positions, compromises you would be willing to accept, but as I'll discuss next, do not feel compelled to agree to anything final on the call itself.

You've prepared and now you are ready to conduct the meet and confer itself. During that call, take your time. Some attorneys view meet and confers as something they just need to blow through in order to get to motion practice. They view it as a check the box exercise. I don't agree. I view them as a way to learn, learn about the other side's strategies, their case theories, and hopefully to reach resolutions without burdening the court, so don't let the other side rush you during the call. Be clear during the call. The meet and confer is not the time to be cute or cagey with your language. Be clear about your expectations, your meanings, your objections. Don't hide the ball from your opponent, and always, always stay calm and stay civil. You should take notes. You should take very thorough notes. I always like to ask a paralegal or a junior associate to join the meet and confer. Not only is it a good learning opportunity for them, but they can join the call for the purpose of taking detailed notes as well. This helps you to follow up after the conversation, and it gives you a strong record of the party's positions if you do end up in motion practice. It also allows you to focus on the discussions themselves, especially if you're the lead negotiator, rather than on writing down what everyone is saying and writing down all of the takeaways. During the call, don't negotiate with yourself. Think through your offers, think through their offers, and if you propose a compromise, wait for their answer. Don't be afraid of the silence, and don't revise your proposal if they stay silent. Instead, you can ask them, "What do you think about that?" Encourage them to speak. Or you can ask, "Do you wanna think about that after the call, and let me know, and we can move on."

Similarly, it's perfectly fine to state that you wanna think about something further, that you wanna discuss it with your broader team or with your client, if they've made a proposal to you on the call. This can help you keep the big picture in mind. If instead, as you walked through the RFPs on the call, you made little compromises along the way, those can really add up over time without you necessarily realizing it in the moment, and ultimately limit the RFPs in a really big way that perhaps you didn't intend. Taking some time after the call to think through the full discussion, all of the potential compromises and offers made, can also help you think of reciprocal agreements that it might benefit you to make. "We'll do X if you do Y. We'll agree to revise these RFPs if you agree to revise other RFPs, or accept our revisions to those other RFPs." Taking time to think through all of these strategies, all of these proposals after the meet and confer, when you have a better sense for your opponent's point of view, for their strategies, for their case theories, is often the best path forward. So let's spend a little bit of time talking about that time after the meet and confer. Like I said, discuss any open questions with your team, with your client. Get proposals from the other side in writing. If your opposing counsel suggested a revised request, or they revised an objection that they made, get that in writing so there's no confusion now or in the future.

I also suggest following up at the other side in writing to confirm your final agreements, again, especially if those agreements differ from the wording of the RFPs or the wording of the objections. If you end up in a dispute, you want a clear record of each party's obligation, and that's not just a dispute you may have now. If you need to go to the judge on the RFPs, this could be a dispute that crops up well into the future, so think several months ahead. Document production has been made, you review the documents you get from the opposing party in response to your RFPs, and you think, "Hey, it looks like there are some documents missing. I requested documents relating to this specific topic, and I don't see any documents on this topic in the production," so you reach out to the other side, you ask them what's going on, you ask them where these documents are, and they say, "We never agreed to produce documents on that topic. Take a look at our objections, or take a look at your RFPs. We didn't interpret the RFPs to seek documents on this topic specifically." If your revised requests, if your final agreements aren't in writing, you can be really out of luck if it turns out that your memories just differ as to what you ultimately agreed on, so it's really a way to cover yourself. You may think you had a great call. You may think you reached some great agreements for your client, only to realize much, much later that there is a dispute and that your opposing counsel had a very different belief as to the agreed-upon path forward. Getting your final agreements, getting your meet and confer down in writing, is also a great way to protect yourself from what I call keyboard warriors. These are the opposing counsel who are civil on the phone, maybe even friendly, only to turn around and send you snarky letters, snarky emails, maybe even nasty communications, which misstate your positions or which reflect completely different agreements to the ones you thought were in place, so you're protecting yourself, you're protecting your client by making your positions clear in writing, and of course, don't rise to the bait. If you do respond to a keyboard warrior, just correct the record and move on. Remember, if you do end up in front of the court, your emails will likely get read by the court, and you don't want to embarrass yourself by lowering yourself to snarky or nasty responses.

Finally, know when to put a stop to the meet and confer process. Know when to cut and run. As I said, my philosophy is that most requests can be hammered out by the parties without filing a motion, but if your opposing counsel is dragging their feet, if they're delaying taking a position, if they're being unreasonable, you can always put an end to it by stating your final position, letting them know you believe you're at an impasse, and that you will be filing a motion. Of course, follow your judge's rules here. Make sure that you are ready to file a motion in terms of the meet and confer agreements, and whatever else you need to do to get ready for motion practice, but remember that you are just as in control of the timing as your opposing counsel is if you are dealing with somebody who's a little bit difficult. So with that in mind, let's talk about motion practice. Sometimes negotiations stall, they break down, and you do need the court's assistance to resolve the dispute.

If you end up in motion practice, here are some tips. First, I said it before but it bears repeating, keep very good records of your meet and confer efforts, of the content of those discussions, and of the progression of the requests and the objections over time. This is where that chart you put together may come in handy. Again, you can include a portion of that chart with your motion to compel or in your response to the motion if you didn't file it, and you can let the court see in a very clear way, here's the initial request, here's the initial response, here's the current proposed language by either side, and that lets the court often just pick one of the options and order one of those proposals for which the parties will need to comply going forward. Remember that a motion can be made not only on the substance of the RFPs, but also on any procedural errors your opponent may have made. If your opponent was objecting to your RFPs, did they use those specific objections that they need to use? Even though that requirement for specific objections has been in place since 2015, I've seen general objections made even within the last year or two, by frankly great lawyers at reputable law firms, but lawyers can be creatures of habit, and they probably just pull out an old template, they reused it without really thinking critically about what it is they were writing to the other side. If that happens in your case, you may be able to get those general objections and any objections they didn't make, because they relied on the general objections, waived entirely, so always, always look for that, because lawyers are still making that mistake today. As I noted earlier, you should research similar RFPs, similar requests that were litigated in your jurisdiction before your judge. So you may have done that during the brainstorming step if you were drafting the RFPs, but it's a good idea to refresh your research if it's been a while. Discovery motions get filed all the time.

Similarly, be aware of your judges' tendencies. Some judges take a split-the-baby approach, and that can often leave no one very happy, so consider the risks of motion practice based on your judge's tendencies, and also think about any offers that you made while negotiating. The judge may make you comply with an offer that you previously made, so never make an offer that you couldn't ultimately live with. Prepare for your argument, prepare ahead of time, talk through your arguments, practice, rehearse, do a moot court if you have the time and the colleagues to help you. Think through questions you might get, anticipate the other side's arguments, this is where your meet and confer notes can come in very handy, and the thorough meet and confer discussions will be very handy because you should have a good understanding of your opponent's theories and arguments with respect to the open disputes. Don't get caught up in the heat of the moment. Even if the other side gets personal or misstates your positions, stay calm, stay civil, correct the record if needed, and focus on the heart of your argument. Remember the burden of proof, and remember that the burden of proof may shift. If, for example, you are seeking documents and you demonstrate the relevancy of those documents to the court, the burden may flip to the other side to show why the documents are inaccessible, for example, so always keep that in mind and always hold the other side to their burden if they try to shirk it.

Finally, plan ahead for any ruling. If the judge were to rule in your favor, is there anything that you'd like? Do you have a timeline in mind to receive documents if the judge orders production? Do you need the judge to order other details with respect to custodians or a timeframe for the production or a date range for the document polls? Do you just need the judge to order the other side to meet and confer to discuss some of these details? Do you have a deadline in mind for that meet and confer process to wrap up? That can be a great way to move things along and a great strategy for you if you're working with opposing council who moves slowly, who delay, who engage in other misconduct. And think through the same issues in case you lose. If, for example, you were ordered to make a production, what timeline could you live with? Are there any limitations on sources or custodians that you'd like to ask the court to impose based on proportionality and relevancy objections that you might have? Of course, always be respectful to the judge when you're arguing. Discovery motions might feel like small potatoes to you when you're arguing them, but remember that they can ultimately have a big effect on your case, and every opportunity you have to get in front of your judge is an opportunity to build your reputation, to build sort of a relationship with the judge, build your credibility with the court, in anticipation of maybe bigger ticket motions or procedures you have in front of your judge later on in the case.

In short, my advice for motion practice really follows the advice I've given you throughout today's CLE with respect to writing and responding and negotiating RFPs, which is to prepare and plan ahead, know the relevant rules and follow them, think big picture but also focus on the details, and stay calm and keep your cool. If you do these things, I think you'll find that you will be writing and responding to RFPs in a way that is strategic and helps you get the critical documents you need to make your case or refute the other side's claims.

That takes us to the end of the CLE and the end of our hour together, and the end of my tips for writing and responding to document requests. I hope you found this CLE to be helpful. If you did, I encourage you to head over to thecareerfiles.com to learn more about my work and ways we can continue to work together.

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On demand
1h 05s

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