Also known as: production of documents · inspection of property · document production · property inspection · FRCP 34 · Rule 34 request · discovery request
Written by attorneys — see sources below.
A discovery device by which a party may obtain documents or inspect property in the possession of another party. The device requires a written request or subpoena that identifies the items with reasonable particularity and complies with signature and certification rules. Production or inspection occurs at a designated time and place within geographic limits, subject to claims of privilege or undue burden.
Preston Pratt served Patriot Insurance with a request for every email sent by any employee over five years. The request lacked any narrowing by subject or custodian. Patriot's counsel moved for a protective order, arguing the demand violated the duty to avoid frivolous discovery requests.
Paula Pierce's attorney filed a request for production of property inspection reports but omitted the required signature and contact information. The opposing party objected that the document failed to certify reasonable inquiry into its factual and legal basis. The court struck the request until proper certification was supplied.
Prime Logistics demanded inspection of all vehicles owned by Progressive Healthcare solely to increase litigation costs after settlement talks stalled. The request contained no limit on scope or time period. Progressive moved for sanctions, citing the certification that the request was not interposed for an improper purpose.
Federal prosecutors subpoenaed Pedro Pacheco for business ledgers. Pacheco asserted that complying would authenticate the documents and thereby provide testimonial evidence against him. The court addressed whether the act of production itself enjoyed immunity from later use.
In August 1994, an Independent Counsel was appointed to investigate possible violations of federal law relating to the Whitewater Development Corporation. In December 1994, Webster Hubbell pleaded guilty to charges of mail fraud and tax evasion arising out of his billing practices as a member of an Arkansas law firm from 1989 to 1992. He was sentenced to 21 months in prison. As part of the plea agreement, Hubbell promised to provide the Independent Counsel with full, complete, accurate, and truthful information about matters relating to the Whitewater investigation. While Hubbell was incarcerated in October 1996, the Independent Counsel served him with a subpoena duces tecum calling for the production of 11 categories of documents before a grand jury sitting in Little Rock, Arkansas. Hubbell appeared before the grand jury and initially invoked his Fifth Amendment privilege. After being granted immunity pursuant to an order under 18 U.S.C. § 6003(a), he produced 13,120 pages of documents and records. The documents provided the Independent Counsel with information that led to a second prosecution. On April 30, 1998, a grand jury in the District of Columbia returned a 10-count indictment charging Hubbell with tax-related crimes and mail and wire fraud. The District Court dismissed the indictment on the ground that the Independent Counsel's use of the subpoenaed documents violated 18 U.S.C. § 6002. The Court of Appeals vacated the judgment and remanded for further proceedings to determine the extent of the Government's independent knowledge of the documents. On remand, the Independent Counsel acknowledged that he could not satisfy the reasonable particularity standard and entered into a conditional plea agreement with Hubbell. The Supreme Court granted certiorari to determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena.
Plaintiffs sought production of internal emails from the Vice President's energy task force. The government resisted, claiming the requests imposed an undue burden on high-ranking officials. The court considered whether mandamus relief was available to block the document demands.
In January 2001, shortly after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group. The Group was directed to develop a national energy policy designed to help promote dependable, affordable, and environmentally sound production and distribution of energy. The President assigned agency heads and assistants, all federal employees, to serve as members of the committee. He authorized the Vice President, as chairman, to invite other officers of the Federal Government to participate as appropriate. Five months later the NEPDG issued a final report and, according to the Government, terminated all operations. Following publication of the report, Judicial Watch, Inc., and the Sierra Club filed separate actions in the United States District Court for the District of Columbia that were later consolidated. The plaintiffs alleged that the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. Non-federal employees including private lobbyists regularly attended and fully participated in non-public meetings. Respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. The suits named Vice President Cheney, the NEPDG, government officials who served on the committee, and the alleged de facto members as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements. The District Court granted the motion to dismiss in part and denied it in part. It dismissed respondents' claims against the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant, and the claims against it were dismissed as well. The District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act. The court allowed respondents to conduct a tightly reined discovery to ascertain the NEPDG's structure and membership. The District Court denied in part the motion to dismiss and ordered respondents to submit a discovery plan. Petitioners including the Vice President sought a writ of mandamus in the Court of Appeals for the District of Columbia Circuit to vacate the discovery orders, direct the District Court to rule on the basis of the administrative record, and dismiss the Vice President from the suit. A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal. The Supreme Court granted certiorari.
Peak Performance requested backup tapes containing thousands of employee emails from Patriot Insurance. The producing party argued that restoring the tapes would cost hundreds of thousands of dollars. The court evaluated whether cost-shifting was appropriate given the volume of electronic data sought.
Laura Zubulake worked as an equities salesperson at UBS Warburg LLC from August 23, 1999, until her termination on October 9, 2001. She was a director on the U.S. Asian Equities Sales Desk and reported to Matthew Chapin after Dominic Vail left the position. Zubulake filed an EEOC charge alleging gender discrimination on August 16, 2001, and commenced this action on February 15, 2002, claiming sex discrimination and retaliation. On June 3, 2002, Zubulake served her first document request seeking all documents concerning communications by or between UBS employees concerning her. UBS produced approximately 350 pages of documents, including about 100 pages of emails, in July 2002. The parties entered into an agreement on September 12, 2002, providing that UBS would produce responsive emails from five specified individuals if retrieval was possible. Zubulake produced over 450 pages of emails herself, including a chain with a message from Chapin to Andrew Clarke indicating that it was not a question of if but when they would get rid of her. UBS's email system used HP OpenMail, with backups created daily, weekly, and monthly using Veritas NetBackup, resulting in 94 tapes that might contain responsive emails from Chapin, Clarke, Tong, Datta, and Hardisty. UBS also archived external emails sent or received by registered traders on optical disks searchable with Tumbleweed software. After UBS declined to search backup tapes due to estimated costs of $300,000, the parties appeared before Magistrate Judge Gorenstein on December 2, 2002. UBS produced Christopher Behny for deposition on January 14, 2003, who described the backup protocols and restoration process, which takes about five days per tape. UBS later estimated restoration costs at approximately $175,000 to $180,000 plus attorney time. Zubulake moved for an order compelling UBS to produce emails from backup tapes and imposing sanctions for failure to preserve and produce those emails.
The attorney certifies that the request is complete and correct as of the time made, consistent with the rules, not interposed for an improper purpose, and not unreasonable or unduly burdensome given the needs of the case.
A court may impose sanctions when a lawyer makes a discovery request without reasonable inquiry or fails to make diligent efforts to comply with a proper opposing request, as required by professional conduct rules.
…Counsel's petition for a writ of certiorari in order to determine the precise scope of a grant of immunity with respect to the production of documents in response to a subpoena. 528 U. S. 926 (1999). We now affirm. II It is useful to preface our analysis of the constitutional issue with a restatement of certain propositions that…
…attempt to use discovery in order to demonstrate the court’s personal jurisdiction over the excess insurers. Respondent’s first
…checks, and the production can be made in electronic form obviating the need for mass photocopying. In fact, whether production of documents
…in preserving the ability of its officials to engage in frank and candid discussions. The District Court’s order requiring the production of documents
…asserting affirmative defenses. Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents
The act of production may be protected when it implicitly authenticates the documents or provides testimonial information that could be used against the producer in a later proceeding.
Courts consider whether the burden or expense of production outweighs its likely benefit, taking into account the needs of the case, amount in controversy, parties' resources, and importance of the issues.
A subpoena may command production only at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.