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When preparing for trial, a party may ask the other party to produce evidence or allow a physical inspection. These are both routine requests. As such, it’s important to know how to respond or object to anything that comes your way.
This post covers why legal teams issue requests for production and inspection, when they occur, and what they entail.
What Is a Request for Production and Inspection?
First, here’s some context. During the pretrial phase, the plaintiff and defense teams meet to exchange information. The name for this process is discovery when referring to tangible evidence and eDiscovery when referring to electronically stored information (ESI).
A request for production occurs when one party asks another to procure ESI or physical evidence. For example, this may include emails, photographs, text messages, charts, or graphs. On the other hand, physical evidence may encompass items like paper and gifted objects.
A request for inspection happens when one party asks to investigate the opposing party’s property or an object or operation on it. For example, following a data breach, it may be necessary to inspect the company’s data center to assess physical security mechanisms.
In another case, a request for production or inspection may also occur during an audit. For example, a corporate legal team may audit a branch location and request information to ensure regulatory compliance.
Why Request Production and Inspection?
Discovery and eDiscovery ultimately save time during court and ensure a fair trial. At the same time, they also prevent parties from issuing unreasonable or surprise requests.
Very simply, plaintiffs use production and inspection to uncover critical details and build a case. Issuing a request can help determine what questions you need to ask and where to look for answers.
For example, you may discover that a business partner outsources certain operations to a third-party vendor. In this instance, you may request information about their relationship with that vendor and the services they provide, too. Then, you may also choose to subpoena that vendor for questioning.
What’s more, a defense team may also issue production and inspection requests. This strategy is typically helpful for uncovering information to refute an allegation or to question the plaintiff’s character or position.
Who Can Request Production and Inspection?
For guidance on requests for production and inspection, look to the Federal Rules of Civil Procedure (FRCP). This document outlines civil procedure in US district courts and was designed to bring unity across disparate jurisdictions.
FRCP Rule 34 says that a party may serve any other party a request for production and information. A party may request writings, drawings, photographs, graphs, charts, sound recordings, images, data, and data compilations. In addition, a party may also request tangible objects.
Further, Rule 34 permits entry onto designated land or other property that the responding party possesses or controls. The requesting party may inspect, survey, measure, photograph, test, or sample the property or any object or operation on it.
What Should a Request Contain?
Under Rule 34(b), a request must describe each item or category of items that require inspection.
In addition, the request needs to specify a reasonable time, place, and manner for the inspection, as well as performing the related acts.
The request may also specify the form or forms for producing ESI.
How Much Time Do You Have to Respond?
Rule 34(b)(A) says the receiving party must respond within 30 days after being served notification. In other words, you don’t want to wait longer than a month to respond.
If the request falls under Rule 26(d)(2), you can respond within 30 days after the parties’ first Rule 26(f) conference. The court may also order a shorter or longer window for responding under Rule 29.
How to Respond to a Request
Go through the complete set of requests and review each one. You need to either comply or object to individual requests across each item or category. If you object, you need to explain why.
Of note, a responding party can state an intention to produce copies of documents or ESI instead of permitting inspection. You have to produce the copies or ESI no later than the specified time for inspection written in the response or within a reasonable time frame.
Objecting to a Request
You don’t necessarily have to comply with every request for production and inspection. However, you have to respond by either accepting the request or objecting to it.
In other words, you can’t ignore a request—even when it seems irrelevant and absurd.
When objecting to a request, you need to state whether you’re withholding any responsive materials on the basis of that objection. And if you object to part of a request, then you need to specify the section you object to and allow for inspection of the rest.
Keep in mind that you can respond to an objection to a requested form for producing ESI. If you object, then you need to demonstrate the form that you intend to use.
Forms may be native, nonnative, image (near-paper), and paper-based.
Producing Documents or ESI
Rule 34(b)(E) says you must produce documents as you keep them in the usual course of business. Otherwise, you need to label them to align with the categories in the request.
If the request doesn’t specify a form for producing ESI, you have to produce it in a way that you ordinarily maintain it or within reasonable means. You also don’t have to produce the same information in more than one form.
Phrased another way, when providing data, you don’t have to produce a graph or PowerPoint if the information is in a spreadsheet.
Only active parties in a case can issue requests under Rule 34.
To inspect the property or obtain ESI from a nonparty, you need to issue a subpoena. Issuing a subpoena requires a recipient to submit to questioning at a specific time and place.
FRCP Rule 35: Physical and Mental Examinations
If a party’s physical or mental condition is in question, a court may issue an order to submit to an examination. This type of inspection falls under FRCP Rule 35.
In short, FRCP Rule 35 says a motion and notice can only take place for a good cause. The contents must also specify the time, place, conditions, manner, and scope of the examination as well as the party who will perform it. The rule also provides guidance for issuing an examiner’s report, among other things.
Expedite Responses With Venio
During a typical case, you may receive multiple requests for production. Unfortunately, your team can’t afford to take a lot of time on each request. This process needs to move quickly and efficiently; that’s just the way it is.
The process becomes more manageable with a purpose-built platform like VenioOne, which streamlines eDiscovery end to end. With the help of a system like VenioOne, you can store all your ESI in one location. Simply put, VenioOne simplifies the process of culling, reviewing, producing, and presenting digital evidence in court.
VenioOne enables your team to spend less time on back-end data production—giving you more time to form your case. With Venio, you can lower operational costs while making life easier for your team.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.