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During the pretrial phase of any court case, both parties have a legal right to request and inspect the other side’s documents. This is a standard procedure and something that legal professionals should know how to navigate.
Keep reading to learn all about how document inspection requests work, why they’re important, and how to issue them.
What Is an Inspection of Documents?
Document inspection is permissible under FRCP Rule 34. The rule allows a requesting party and its representative to inspect, test, copy, or sample various items from a responding party.
This includes any designated documents or electronically stored information (ESI) that the other party may have in their possession. It can include drawings, writings, graphs, photographs, sound recordings, images, and other data or data compilations. Rule 34 also allows for the inspection of tangible objects and private property.
For guidance on the scope and limitations for document inspection, see Rule 26(b).
Who Can Inspect Documents?
Under Rule 34, a party may serve a request on any other party. This means that the plaintiff or defense can issue requests at any time during the eDiscovery process.
Parties may also force a nonparty like a vendor to produce documents and tangible evidence or permit inspection. Requesting information from a nonparty requires a subpoena.
What Is a Subpoena?
A subpoena is a court order compelling a party to provide information. For example, a subpoena may command a party to attend and testify, or produce documents, ESI, or other tangible evidence. A subpoena may also compel a person to permit inspection of private property.
For a complete overview of subpoenas, see FRCP Rule 45. This rule closely mirrors Rule 34.
What’s the Purpose of Inspecting Documents?
Document inspection is a central part of the legal eDiscovery process. During pretrial eDiscovery, teams determine what type of digital evidence they will use in court. Once that’s done, they request and exchange information.
By going through the process of eDiscovery and sharing documents with each other, teams can have an easier time building a case.
In addition, requesting items in advance ensures a smoother and more civil trial. And it also prevents teams from having to scramble to obtain information during a trial. What’s more, it helps limit the economic burden of producing documents, too.
Legal teams use eDiscovery to obtain critical insights and build a case or form a defense strategy.
To illustrate, during a noncompete hearing, a defense attorney may request a variety of documents from a company. Examples may include the employer’s noncompete policy and a copy of the employee’s original contract, among other items.
When Can You Inspect Documents?
First, the plaintiff and defense teams have to hold a meet and confer session. During this session, the two sides will outline terms for eDiscovery.
After the meet and confer session takes place, the eDiscovery process commences. At this point, both parties can issue requests to examine documents.
How To Request an Inspection
To request an opposing party’s documents, you have to submit a formal request. Under Rule 34, the request must describe each item or category that you want to inspect.
What’s more, the request should specify a reasonable time, manner, and place for the inspection and for performing the related acts. For more clarity, you may also specify the form or forms that you want to produce ESI.
When replying, the party must produce documents as they are kept in the usual course of business. Otherwise, the party must label and organize them to correspond to the categories in the request.
If a request doesn’t specify a form for producing ESI, the party must produce it in a reasonable or typical form. What’s more, a party doesn’t have to produce the same ESI in more than one form.
How Long Should You Wait for a Response?
After you submit the response, the opposing party will have 30 days to reply in writing to let you know whether they comply or object to the request.
If the request falls under Rule 26(d)(2), then the party can respond within 30 days after the first Rule 26(f) conference. The time may also be shorter or longer by either court order or Rule 29.
Objecting to a Request
Rule 34 says that an objection has to state whether the party is withholding responsive materials on the basis of that objection. When objecting to part of a request, the party must specify the section they object to and permit inspection of the remainder.
The party may also object to the form that you request for producing ESI. In this case, the party has to state the form or forms it wants to use.
Filing a Protective Order
Under Rule 26(c), an opposing party can file for a protective order in response to a request. This type of order protects a party from embarrassment, annoyance, undue burden, oppression, and expense, among other things.
If the court grants the order, this can prevent you from obtaining the protected record. In that event, you will have to proceed without that evidence.
Issuing a Motion to Compel
There’s no guarantee that an opposing party will respond to your request. In some cases, the opposing side may have damaging evidence that they don’t want to share. Or, an opposing attorney may be negligent, understaffed, or overloaded with other cases.
If you don’t receive a response within an appropriate window of time, you can bring forward a motion to compel inspection. Rule 37(a) says that a party may move for an order compelling disclosure or discovery. The motion has to certify an attempt to confer with the other party or person.
If a party doesn’t make a disclosure under Rule 26(a), any other party can move to compel disclosure and for appropriate sanctions.
Rule 37(b) also outlines grounds for issuing a motion to compel a discovery response. For example, a motion may commence if a party fails to produce documents or permit inspection under Rule 34.
Of note is section (a)(4), which says that an evasive or incomplete disclosure, answer, or response is a failure to disclose, answer, or respond.
Need to Streamline eDiscovery? Venio Can Help
If this all sounds complicated, that’s because it is.
At the end of the day, legal teams often spend too much time trying to hunt down information. This eats up precious time. It also pulls team members away from what’s truly important: winning in court. After all, your team ultimately needs to spend the majority of its energy analyzing evidence and using the information to build a case.
The trick is to automate eDiscovery using a platform like VenioOne. By switching to VenioOne, your team can access all ESI from one centralized portal.
VenioOne improves organization and provides greater visibility and control over your data. The platform also processes data up to 10 times faster, at a rate of more than 10 TB per day.
Suffice it to say that the difference is noticeable. Your team will save money and reduce time, allowing you to move effortlessly through the eDiscovery process.
Ready to take your first steps to improve eDiscovery? Request a Venio demo today.
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.