Proactive Discovery Series | Requests for Productions
By Jeremy Applebaum
Technology is changing rapidly and the days of simply requesting emails and documents, however thoughtfully and broadly defined, are long gone. When requesting “documents,” what you are really requesting are communications. So if “documents” are all that you are asking for in your Requests for Production (“RFP”), then you very well may be leaving out other forms of communications from your opponent’s production.
Not so long ago, as a practicing attorney, I was working a personal injury caseload of approximately 300 cases in addition to assisting on mass torts/product liability cases. Cases were filed. Discovery drafted. But like many attorneys, I didn’t reinvent the wheel each time I drafted new discovery requests – I started with a previous copy and then made the necessary changes. Many of my cases were similar, so the Requests for Production were similar. And my definition of “documents” in the definitions section of the Requests for Production may have never changed.
I recently asked three former colleagues for copies of their most recent Requests for Production, and specifically the instructions and definitions sections. Here is what each said when requesting “documents”:
“Documents include, by way of example only, any memorandum, request envelope, correspondence, electronic mail, report, note, Post-It, message, telephone message, telephone log, diary, journal, appointment calendar, calendar, group scheduler calendar, drawing, painting, accounting paper, minutes, working paper, financial report, accounting report, work papers, drafts, facsimile, facsimile transmission report, contract, invoice, record of sale or purchase, Teletype message, chart, graph, index, directory, computer directory, computer disk, computer tape, or any other written, printed, typed, punched, taped, filmed, or graphic matter however produced or reproduced. Documents also include the file, folder tabs, and labels appended to or containing any documents”
““Document” or “documents” includes any written, printed, recorded, graphic matter or sound reproduction, however produced or reproduced, of any kind, including, but not limited to, the original or any copy of any reports, correspondence, testimony, records, emails, IM’s, text messages, blogs, statements, memos, photographs, videotapes, flyers, advertisements, communications, messages, minutes, schedules, books, account vouchers, bills, journals, ledgers, checks, invoices, contracts, agreements, orders, diaries, notes, recorded tapes, computer databases or tapes, or statements under oath.”
““Document” shall mean any written, recorded, transcribed, punched, taped, filmed or graphic matter of any kind or description, however produced or reproduced.”
Now, one of these things is not like the other. The second of these examples is much more up to date with current technological advances in communication than the other two.
But there is an overarching problem with all three of these examples, and with the vast majority of Requests for Production: a lack of specificity. In an attempt to be as broad and encompassing as possible, they inherently depend upon the recipients’ knowledge of the communication vessels employed within and by the party to the litigation to whom these Requests for Production are directed. That is not a chance you should be taking. As communication technologies grow, the more specific your Requests for Production should become.
But there is an overarching problem with…the vast majority of Requests for Production: a lack of specificity.
Would all three of my former colleagues’ requests result in the documents they intend to gather? Maybe. But, instead of requesting “Post-Its”, why not draft your requests with the specificity that gives your client the best chance of receiving all that they are entitled to? And you, their attorney, will have the piece of mind knowing that the Requests for Production are technologically advanced enough to encompass all the producing party’s means of communication.
None of the examples above tell the producing party where to go for the information. A few short years ago, instructing the producing party to look towards paper documents, email, servers and perhaps imaging specific custodian’s computers may have been enough. Today, it is not.
Today, the most used computer you have is probably your cell phone or tablet. These devices, and the apps on them, collect and store data all day: things like your location, your correspondence (texts and emails), pictures and even health related data. I use my Notes app everyday. The information contained within this app is a “document.” It may be discoverable. But chances are, unless you request phone and app data in your Requests for Production, you will not receive it.
Do the requests above include cloud-based storage or back-up servers? None mention this specifically. Why? Data is often backed-up to servers. Data is stored in the cloud. If the producing party only searches a business’s active servers and currently-used desktops/laptops, then you are potentially missing discoverable data. Point them towards that data.
You might also request data from social media, both from the company and its individual employees. This includes Twitter, Facebook, Facebook Messenger, LinkedIn and blogs. Since many of these platforms have broad and direct communication channels, it is possible, if not likely, that employees communicate outside the company’s normal channels.
And, of course, you must delve into a company’s normal channels of communication. But if all you request are emails and correspondence, you now may be missing the employees’ primary form of communication. Millennials now make up a majority of the workforce and to them, email is out. Instant online communication tools like Slack, Azendoo and Jostle are in. We do not traditionally think of these instant messaging conversations as “documents,” but they are. They are becoming the primary means of communication and they are discoverable. If you do not know to ask, you are probably not getting them in response to your Requests for Production.
If all you request are emails and correspondence, you now may be missing the employees’ primary form of communication.
Bill Gates said, “Information technology and business are becoming inextricably interwoven. I don’t think anybody can talk about one without the talking about the other.” When drafting Requests for Production, consider the amount of specificity needed to point the recipient towards all possible responsive data. If you ignore the use of information technology in business, you may be leaving the best documents on the table.
Jeremy Applebaum, eDiscovery Consultant
Jeremy Applebaum, a 2004 graduate of Cumberland School of Law, is an eDiscovery Consultant with Precision Discovery. He has successfully navigated cases ranging from personal injury to complex environmental contaminations and large product liability actions. Jeremy recognizes the importance of focused and productive discovery, and enjoys using his experience to guide others through this process.
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