Drafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.
A Requesting Party demanded an opposing party produce “[a]ll email and text messages sent or received on Mayo email and text messaging accounts.”
The Magistrate Judge found the request to be overly broad.
However, the Producing Party had produced responsive discovery with redactions, thus the Requesting Party challenged the overbroad ruling as unwarranted and moot. Elkharwily v. Mayo Holding Co., 2014 U.S. Dist. LEXIS 53890, 8-10 (D. Minn. Apr. 18, 2014).
The Producing Party countered that discovery produced with redactions and claims of privilege were subject to the future consideration of the Magistrate Judge. Id.
The Court stated that the Magistrate Judge had “expressly excluded from his order any determination regarding redactions or assertions of privilege, reserving consideration of those topics. As a result, notwithstanding the magistrate judge’s conclusion of overbreadth, it appears that Elkharwily has no actual objection to a ruling by the magistrate judge regarding Requests for Production 1 or 2.” Id.
The Requesting Party also challenged an overbroad ruling for a request for production of, “[a]ll documents, notes, communications, emails and text messages relating to or to any of the claims or defenses in this action prepared, sent or received by [various entities, departments and individuals].” Elkharwily, at *9-10.
The Producing Party stated that they had produced all responsive discovery, as such, the Court found there was not an objection to the Magistrate Judge’s ruling. Elkharwily, at *10.
Bow Tie Thoughts
Reviewing the requests for production and challenging the objections make me think of two different issues: drafting a narrowly tailored request and being able to prove a production was inadequate.
As to the first issue, a request for production should include more than identifying the sender and all communications. That could be overly broad on its face, given the number of emails and texts sent in a day. Attorneys are well served to ask for specific communications between individuals, date ranges, and on specific subjects. The trick is not having the request become too narrow, but you cannot simply ask for everything, because you might actually get everything. That could make document review a nightmarish quagmire, because you actually got what you asked for.
The second issue requires a different strategy. If you think a production is inadequate, because there “should be more” emails or text messages, you have to prove it. This is not a metaphysical discussion of whether something exists or not, but you need some evidence of production gaps. This can include missing files that the requesting party has that should have been produced (such as part of an email chain), if not outright days or weeks of missing email. If there is such a production gap, a party can demonstrate by affidavit that the production is not complete.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.