Requests for Production: Rules, Responses, and Examples

Requests for Production: Rules, Responses, and Examples

Legal content overseen by Nathan Walter, Esq., attorney licensed in California (State Bar No. 313299).

A document demand creates two separate jobs: serving the written response, and getting the documents or the inspection to the other side. Requests for production are the Rule 34 device behind both. Under Federal Rule of Civil Procedure 34(a), a party may serve on any other party a request to produce documents, electronically stored information or tangible things, or to permit entry onto land or other property.

This guide explains requests for production in federal civil litigation, then separates the rules for California state-court cases; it does not cover other states.

Written for litigators at plaintiff firms and their paralegals, it covers the governing rules, what a response must say and two examples.

What are requests for production?

A request for production is a written demand that one party serves on another party. Rule 34(a)(1)(A) reaches designated documents and electronically stored information (ESI) stored in any medium. Rule 34(a)(1)(B) reaches designated tangible things, and Rule 34(a)(2) covers entry onto designated land or other property so the requester can inspect, measure, survey, photograph, test or sample it. The items must be in the responding party’s “possession, custody, or control” under Rule 34(a)(1). The rule does not define “control,” and this guide does not state a test for it.

Three things happen in sequence: the demand, the written response, and the production or inspection itself. Rule 34(b)(2)(B) treats the last two separately, because a response may say that copies will be produced and set the completion time.

For the software-assisted workflow, see how to automate responses to requests for production.

Requests for Production: Quick Reference

This is a reference, not a deadline calculator. The California column covers ordinary unlimited civil cases. The sections below address the federal early-delivery exception, extensions, service details and California special proceedings.

Federal rules for requesting documents

Scope and reasonable particularity

Rule 34(a) allows requests “within the scope of Rule 26(b).” Rule 26(b)(1) permits discovery of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. The proportionality factors are:

• the importance of the issues at stake in the action;
• the amount in controversy;
• the parties’ relative access to relevant information;
• the parties’ resources;
• the importance of the discovery in resolving the issues; and
• whether the burden or expense of the proposed discovery outweighs its likely benefit.

Under Rule 26(b)(1), information within that scope need not be admissible in evidence to be discoverable.

Rule 34(b)(1)(A) requires a request to describe “with reasonable particularity” each item or category of items. A category is allowed, so the requester does not have to know every exact document in advance. The rule’s text does not require a request to explain why an item is relevant.

Inspection details and electronic format

Rule 34(b)(1)(B) requires a request to specify a reasonable time, place and manner for the inspection and any related acts. Rule 34(b)(1)(C) says a request may specify the form or forms in which ESI is to be produced. Specifying a form is optional.

Identifying the source, date range and topic of what you want is drafting practice, not a universal checklist in the rule. It helps the responding party see what the category covers.

Federal response deadlines and production

Calculate the written-response deadline

Rule 34(b)(2)(A) requires a written response within 30 days after service. If the request was delivered early under Rule 26(d)(2), the 30 days run from the parties’ first Rule 26(f) conference. More than 21 days after a party is served with the summons and complaint, Rule 26(d)(2)(A) permits delivery to that party by any other party, or by that party to any plaintiff or another served party, and Rule 26(d)(2)(B) treats the request as served at the first Rule 26(f) conference. The parties may stipulate to a shorter or longer time under Rule 29, or the court may order one (Rule 34(b)(2)(A)).

Rule 6(a)(1) governs counting: exclude the day of the triggering event, count every day including intermediate Saturdays, Sundays and legal holidays, and include the last day. If the last day is a Saturday, Sunday or legal holiday, the period runs to the next day that is not one (Rule 6(a)(1)(A)–(C)).

Rule 6(d) adds 3 days only after service under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk) or (F) (other means consented to); Rule 5(b)(2)(E) is not on that list. Under Rule 6(b)(1), good cause is required for an extension. Before expiration, the court may act with or without motion or notice if it acts or a request is made before the deadline; after expiration, a motion and excusable neglect are also required.

Respond to each item and complete production

For each item or category, Rule 34(b)(2)(B) requires the response either to state that inspection and related activities will be permitted as requested, or to state with specificity the grounds for objecting, including the reasons. The responding party may say it will produce copies instead of permitting inspection, and must then complete production by the inspection time in the request or another reasonable time specified in the response.

Unless the parties stipulate or the court orders otherwise, Rule 34(b)(2)(E) sets these defaults:

• Organization: produce documents as they are kept in the usual course of business, or organize and label them to correspond to the categories in the request (Rule 34(b)(2)(E)(i)).
• ESI form: if the request specifies no form, produce ESI in a form in which it is ordinarily maintained or in a reasonably usable form (Rule 34(b)(2)(E)(ii)).
• One form: a party need not produce the same ESI in more than one form (Rule 34(b)(2)(E)(iii)).

If the responding party objects to a requested form, or no form was specified, Rule 34(b)(2)(D) requires the response to state the form or forms it intends to use.

Rule 34 does not mention Bates numbers; Bates numbering is a practical identification aid, not a mandated format.

Federal objections and missing documents

Rule 34(b)(2)(C) sets two requirements for objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest. For objection grounds and sample language across written discovery, see the discovery objections cheat sheet.

Privilege, work product and confidentiality are different mechanisms:

• Privilege and trial-preparation protection: when information is withheld on that basis, Rule 26(b)(5)(A) requires the party to make the claim expressly and to describe the nature of what is withheld in a way that lets other parties assess the claim without revealing protected information. Rule 26(b)(3)(A) ordinarily protects documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative. Subject to Rule 26(b)(4), they may be discovered if otherwise discoverable under Rule 26(b)(1) and the requesting party shows substantial need to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Rule 26(b)(3)(B) requires protection of attorney or representative mental impressions, conclusions, opinions and legal theories if discovery is ordered.
• Confidentiality: a party may move for a protective order under Rule 26(c)(1) for good cause. Rule 26(c)(1)(G) lists an order that a trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a specified way.

If responsive records cannot be found, the written response is still required, because Rule 34(b)(2)(B) calls for a response to each item or category. Rule 34 has no inability-to-comply statement like California’s. Recording where and how you searched is a recommended firm practice, not a federal requirement.

Rule 37(d)(1)(A)(ii) allows the court, on motion, to order sanctions if a party properly served with a Rule 34 request fails to serve its written response. The motion must certify that the movant conferred or attempted to confer in good faith to obtain the response without court action (Rule 37(d)(1)(B)). Under Rule 37(d)(2), the failure is not excused because the discovery was objectionable unless a protective-order motion is pending.

California state-court rules are different

This section covers ordinary unlimited civil cases under the California Code of Civil Procedure (CCP). Limited civil cases and unlawful detainer actions have exceptions, noted below but not developed here.

Demand contents and separate deadlines

Unless limited by court order, California discovery reaches nonprivileged matters relevant to the pending action’s subject matter or a motion in that action, if admissible in evidence or apparently reasonably calculated to lead to discovery of admissible evidence (CCP 2017.010). A party may demand inspection of documents, tangible things, land or other property, and ESI in another party’s possession, custody or control (CCP 2031.010(a)–(e)).

Under CCP 2031.030, each set is numbered consecutively and identifies the demanding party, set number and responding party (2031.030(a)(1), (b)). Each demand is separately set out by number or letter, designates items by describing each one or reasonably particularizing each category, and specifies a reasonable place, the activity and its manner, including whether it will permanently alter or destroy the item (2031.030(c)(1), (3), (4)). The inspection time must ordinarily be at least 30 days after service (2031.030(c)(2)). A demand may specify ESI forms (2031.030(a)(2)).

The written response is due within 30 days after service unless the court has changed the time (CCP 2031.260(a)). Parties may agree to extend the inspection date, the response date, or both, if confirmed in a writing (CCP 2031.270(a)–(b)). These are separate clocks.

Service adds time differently from the federal rules. Ordinary mail generally adds five calendar days when both mailing and address are within California, subject to statutory exceptions; interstate, international and address-confidentiality-program mail have different periods (CCP 1013(a)). Electronic service generally adds two court days (CCP 1010.6(a)(3)(B)–(C)) and is deemed made the next court day if sent on a noncourt day (CCP 1010.6(a)(4)). Counting follows CCP 12 and 12a(a), not Rule 6.

In unlawful detainer actions and other proceedings under Chapter 4 of Title 3 of Part 3, special provisions apply (CCP 2031.030(c)(2); CCP 2031.260(b)).

Compliance, inability to comply and objections

Under CCP 2031.210(a)(1)–(3), (c), the response addresses each item separately with a statement of compliance, a representation of inability to comply, or an objection, numbered and sequenced to match the demand. A statement of compliance must say production will be allowed in whole or in part and that all responsive, non-objected-to documents in the party’s possession, custody or control will be included (CCP 2031.220).

A representation of inability under CCP 2031.230 must affirm that a diligent search and reasonable inquiry were made, specify whether the item never existed, was destroyed, lost, misplaced or stolen, or has never been or is no longer in the party’s possession, custody or control, and give the name and address of anyone known or believed to have it.

An objection must identify with particularity what is withheld, state the extent of and specific ground for the objection, and name the privilege or assert work product expressly (CCP 2031.240(b)(1)–(2)). If part is objectionable, the response must address the remainder (2031.240(a)). A privilege or work-product objection must provide enough factual information to evaluate it, including a privilege log if necessary (2031.240(c)(1)).

Verification and document identification

The responding party signs the response under oath unless it contains only objections (CCP 2031.250(a)). The attorney signs any response that contains an objection (2031.250(c)). The attorney’s signature does not replace the party’s oath where (a) applies.

Produced documents must be identified with the specific request number they respond to (CCP 2031.280(a)), and produced on the demanded date unless that date is objected to, or on the date agreed under CCP 2031.270 if extended (2031.280(b)). The ESI form rules appear in 2031.280(c)–(d).

A party that fails to serve a timely response waives objections, including privilege and work product. The court may relieve the party on motion if it later served a substantially compliant response and the failure resulted from mistake, inadvertence or excusable neglect (CCP 2031.300(a)(1)–(2)).

Examples of focused requests and responses

The following examples are invented to illustrate drafting choices, not forms for use without case-specific review.

Federal request for termination communications

Naming custodians, a period and a subject is one way to describe a category with reasonable particularity (Rule 34(b)(1)(A)). The request also uses the optional ESI form specification (Rule 34(b)(1)(C)). The response says what will be produced and when (Rule 34(b)(2)(B)) and that no responsive materials are withheld on the basis of an objection (Rule 34(b)(2)(C)). Enforceability depends on the case.

California response when the plaintiff has never held the photographs

The response covers each element of CCP 2031.230: diligent search and reasonable inquiry, the specific reason, and holder information (none known or believed here). It bears the demand’s number (CCP 2031.210(c)). Because it is not only objections, the party signs under oath (CCP 2031.250(a)).

Draft responses and prepare production with Briefpoint

Briefpoint drafts responses and objections to requests for production. The output is editable in Microsoft Word, and attorneys keep final review. For a broader overview, see software for drafting discovery responses.

Autodoc finds responsive documents, adds page-level Bates citations and builds a Bates-numbered production package. Client Bridge sends clients plain-language questions through a secure link so they can answer and upload documents for attorney review. For plaintiff firms responding with client-held records, Client Bridge supports collection for attorney review.

Software output is a draft for attorney review. It does not determine whether a response is legally sufficient or guarantee that collection is complete.

Book a demo to see Briefpoint.

See Briefpoint in the video below:

FAQs About Requests for Production

Can you serve a request for production on a nonparty?

Rule 34 describes requests that one party serves on another party. For nonparties, Rule 34(c) provides that, as provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. Rule 45’s procedure is outside this guide.

Is there a limit on requests for production in California?

In ordinary unlimited civil cases, these production statutes set no fixed demand limit; protective orders remain available for good cause under CCP 2031.060(b). In limited civil cases governed by CCP 91, subject to its exceptions, CCP 94(a) permits a combined 35 interrogatories, production demands and requests for admission per adverse party, with no subparts for interrogatories or admissions. CCP 95 addresses additional discovery.

Can a request for production require entry onto land?

Yes, in federal practice. Rule 34(a)(2) permits a request to enter designated land or other property possessed or controlled by the responding party, to inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it. Rule 34(b)(1)(B) requires the request to specify a reasonable time, place and manner.

Do California responses containing only objections need verification?

No. Under CCP 2031.250(a), the responding party signs under oath unless the response contains only objections. Under 2031.250(c), the attorney signs any response that contains an objection. A response that adds a statement of compliance or a representation of inability to comply goes beyond objections, so the party’s oath under subdivision (a) is not excused.

Must electronically stored information be produced in more than one format?

Generally no. Unless otherwise stipulated or ordered, Rule 34(b)(2)(E)(iii) says a party need not produce the same ESI in more than one form. If the request specifies no form, Rule 34(b)(2)(E)(ii) calls for a form in which it is ordinarily maintained or a reasonably usable form, and Rule 34(b)(2)(D) requires the response to state the intended form.

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How to Develop a Relationship with AI Built on Trust

How to Develop a Relationship with AI Built on Trust

The release of OpenAI’s ChatGPT showcased the significant advancements in generative AI. As a result, various niche industries, including the famously archaic legal sector, have started to test the waters of high technology for the first time.

In this case, “generative AI” refers to a type of AI system known as a “transformer” that writes natural language one word at a time based on a combination of (a) statistical probability gathered from millions of samples of text and (b) human feedback. Due to the volume of text used to train these systems, transformers are also commonly called “Large Language Models” or “LLMs.”

However shiny, with all new tech comes new risks. Front of mind for litigation attorneys, none want to be made famous for citing fake cases in a brief.

Avoiding generative AI in light of this risk is not, however, the solution. As this article will outline, there are safe methods for employing generative AI in a manner that will not only increase efficiency – it will make you a better attorney.

By automating various tasks and surfacing key insights, generative AI has the potential to significantly enhance the work of any litigation attorney. According to Goldman Sachs, AI could automate up to 44% of legal tasks, giving attorneys who adopt this technology a competitive advantage. A LexisNexis survey revealed that 84% of legal industry respondents expect efficiency improvements due to generative AI.

When considering a generative AI solution, the critical factor is whether it can handle routine tasks that require memory but not creativity. Small law firms and solo practitioners, unable to develop their own AI platforms like Lexis AI, can still benefit from reliable alternatives in the market. Here is a list of areas where generative AI can be useful for litigation:

● Legal research

● Drafting discovery responses

● Locating and creating fact citations

● Generating fact statements and fact summaries

While exploring and adopting generative AI, addressing general concerns and reservations about its use is crucial. Ensuring the technology is employed effectively and safely will enable litigation attorneys to optimize their practices while maintaining professional standards.

 

General Guidelines for Using Generative AI

If you come across a generative AI company claiming their product has no downsides and can do all the work for you, approach it with caution. A good generative AI should be viewed as a supportive tool, not a replacement for a skilled litigation attorney. However, like any team member, it requires proper management.

When using generative AI, it is essential to understand how to utilize prompts effectively. A well-crafted prompt can significantly impact the quality of the output. For instance, in brief writing, the appropriate prompt can adjust the tone to suit the desired work product.

This process involves asking specific questions and using the correct language to obtain the desired results, similar to the search operators you are familiar with. The ideal prompts will vary depending on the generative AI, so ensure you read the relevant company’s instructions.

Once you have the generated content, rely on it only partially. Always double-check it from top to bottom. This is important for several reasons: it is ethically responsible as a practicing lawyer, helps avoid biases that algorithms might introduce, and ensures the work product is accurate and effective.

Having explored the general capabilities of generative AI for litigation attorneys, we can now delve into specific applications for each of the four areas mentioned earlier, starting with legal research.

Generating Fact Citations with Clearbrief

Locating and citing facts and evidence is crucial to any case, whether you’re working on a demand letter, pleading, memo, or correspondence. Sometimes, the correct fact can be challenging due to the sheer volume of documents to search, or you might need to know what’s available.

Traditionally, fact citation work has been manual and labor-intensive for attorneys, making it an ideal task for an efficient AI to tackle.

Clearbrief is highly recommended for generating fact citations and summaries. It is used by hundreds of law firms, courts, and agencies in the U.S. and was named the 2023 Litigation Product of the Year at Legalweek. Clearbrief is an effective tool for both solo practitioners and large law firms.

To use Clearbrief, highlight any fact sentence in a Word document and utilize the “find fact” cite function. Clearbrief’s specialized AI finds facts from discovery materials (documents and transcripts) with similar or related keywords and identifies related concepts in texts with different languages. Citations are automatically generated in the correct format and directly inserted into your Word document, with hyperlinks to the relevant document or transcript from discovery. Additionally, Clearbrief can compile exhibits and a Table of Authorities with hyperlinked citations.

Learn more about Clearbrief or schedule a demo.

Casetext’s CoCounsel and Legal Research

Legal research is an essential aspect of a litigation attorney’s work, requiring identifying controlling precedent in the relevant jurisdiction, additional supporting laws, and potential weaknesses.

Avoiding “hallucinations,” which can occur when generative AI is not used cautiously, is crucial in this context. Algorithms that create content may occasionally or frequently generate incorrect sources and facts, which is unacceptable for litigation attorneys in any setting.

Casetext’s CoCounsel is an excellent option in this regard, as users report that hallucinations are not a concern. Over 10,000 law firms utilize CoCounsel, which has a 4.8 out of 5 rating on G2 based on over 74 reviews.

By inputting the core legal issue, jurisdiction, and key facts, you’ll receive controlling precedent along with well-crafted arguments in a comprehensive research memo. Quoting and automatic citation in the correct format are also easily achievable.

In addition to legal research, CoCounsel offers other generative AI use cases, such as creating deposition outlines and drafting answers to complaints. Experience the benefits of Casetext’s popular CoCounsel by trying a free demo.

LexisAI and Enhanced Legal Research

As an advanced legal research tool, LexisAI offers unparalleled support to litigation attorneys seeking to optimize their research process. This powerful AI-driven platform comprehensively analyzes case law, statutes, regulations, and other legal materials, ensuring that attorneys have access to the most relevant and up-to-date information.

LexisAI eliminates the need to sift through countless documents manually, saving time and increasing efficiency. The platform’s AI algorithms identify pertinent legal authorities, highlight important passages, and suggest related materials that may strengthen your case or reveal potential weaknesses.

In addition to its core research functionality, LexisAI offers various features that support litigation attorneys throughout the entire case preparation process. These include drafting pleadings, generating deposition outlines, and creating answers to complaints, all with the precision and accuracy expected of a top-tier legal research tool.

LexisAI’s robust offerings make it a must-have tool for any litigation attorney seeking to stay ahead of the competition. To explore the full range of benefits LexisAI can provide, consider scheduling a demo or learning more about this cutting-edge platform.

Briefpoint and Discovery Responses and Requests

Drafting discovery responses is a crucial aspect of litigation work, but it can become monotonous when you already know what you want to say. For example, a response to a request for admissions may involve repeating the same objection multiple times.

As a litigation attorney, your valuable time would be better spent focusing on strategic planning rather than typing and double-checking for errors, which likely wasn’t your primary motivation for attending law school.

Software solutions like Briefpoint can alleviate this burden for California-based litigation attorneys. With a single browser login, you only need to upload the opposing counsel’s PDF. The Briefpoint platform supports most California documents.

Whether using a premade template or specialized AI, Briefpoint enables you to populate a page with the desired language, whether a response or an objection. Customers find the user interface intuitive and easy to use, allowing you to benefit from a no-cost demo quickly. If you prefer, you can learn more about our service before trying it out.

In addition to drafting discovery responses, Briefpoint offers features for preparing propounding discovery, including requests for admission, requests for production, and interrogatories. This comprehensive approach streamlines the entire discovery process, saving you time and effort while maintaining accuracy and consistency in your legal documents.

Test Briefpoint for yourself by scheduling a demo and starting a trial account.

Everlaw and Drafting Factual Statements

Using off-the-shelf tools like ChatGPT for generating legal writing is not recommended, as litigation attorneys require specialized software for their technical material.

If you use Everlaw to manage discovery, consider trying its drafting function, EverlawAI Assistant. Built-in safeguards prevent hallucinations from becoming an issue. Instead, Everlaw works based on your discovery evidence, including the documents it helped you locate.

This generative AI can provide a useful initial draft, whether you need a deposition summary or a fact-focused section for a brief. While you will ultimately edit the draft, having a fact-based starting point will help you reach the finish line. If you have yet to try Everlaw, consider a free demo.

Leveraging Generative AI in Litigation

Generative AI has significantly impacted various industries, including the legal field, and will continue to do so as the technology advances. While its use has both advantages and disadvantages, as discussed earlier, careful implementation and understanding of prompts can help manage the risks associated with generative AI without sacrificing competitive edge.

Ultimately, generative AI is an exciting new technology that skilled attorneys can handle effectively, just like any other risk or legal issue.

At Briefpoint, we specialize in automating repetitive aspects of discovery drafting, enabling litigation attorneys like you to focus on more profound thinking. We have witnessed our software’s benefits to clients and hope you experience similar advantages from the various technologies outlined in this article.