In litigation, the right documents can make the difference between winning and losing. In your pursuit of the smoking gun, make the most of the requests for production you serve on the other side. Strong requests may get you the documents you need to win. Weak requests may get you little else than a mountain of objections. When drafting requests for production, consider the following:
Ask the opposing party to preserve all relevant documents. Along with your request, send a letter to the opposing party requesting that they preserve all the documents you consider relevant and provide categories of documents which are relevant to the case. By placing them on notice of the significance of given documents may serve as a basis for spoliation if they fail to preserve the documents.
Be specific. Broad requests invite objections from the other side. When they don’t, they produce mountains of paper, with little useful information. Tailor your requests to be as specific as possible so as to get the documents you really need.
Propound different versions of the same request. Sometimes, you know what category of documents you want the other side to produce but you don’t know how to draft the request without making it too broad or too narrow. When this happens, it is best to draft several versions of the same request, ranging from a broad request to a very narrow request. Multiple requests increase the odds of getting what you were looking for.
Request a privilege log. If opposing counsel objects to some of your requests claiming that you have requested privileged documents, request that he produce a privilege log which describes the nature of the documents which he claims are privileged. Parties who claim a privilege must produce privilege logs or run the risk of waiving that privilege. By forcing the other side to produce a privilege log, you may cause them to take a hard look at their privilege objections, realize some of them are unfounded and produce some documents.
Use contention requests for production. As you can do with interrogatories, propound contention requests for production. Such a request would entail asking the opposing party to produce all the documents which support a given allegation in his complaint or an affirmative defense asserted in his answer. By doing so, you can acquire all the documents the other side claims supports his case.
Don’t leave to interpretation to opposing counsel what you meant. There are attorneys out there who will try to construe your requests as narrowly as possible so as not to produce any documents. To limit this from happening, prepare a definition section, and define all the terms you’ll be using your request and define them so that the opposing counsel knows exactly what you’re asking for.
Agree with opposing counsel to bate stamp all documents. In some cases, the number of documents produced is inconsequential, making bate-stamping a novel, but unnecessary procedure. However, in most cases, many documents will exchange hands. To facilitate the use of these documents during the course of litigation, secure an agreement with opposing counsel that whenever anyone produces a document, he will bate stamp it.
Take time to draft meaningful requests for production. A single request may result in the production of a smoking gun.