Document Requests in Employment Litigation

posted by Neil Klingshirn  |  Jan 15, 2010 10:34 AM [EST]  |  applies to Ohio

Each case turns on its own facts.  However, the parties rarely have in their possession all of the facts in a case. Instead, they must usually obtain documents and testimony from the opposing party and reluctant witnesses.  A court’s Rules of Civil Procedure (its “Civil Rules”) permit the parties to do this.

The Civil Rules include Rule 34, which allows parties to obtain documents or to inspect places or things in the possession or control of other parties.  Similarly, Rule 45 allows parties to obtain documents, record testimony and inspect things in the possession or control of non-party witnesses.  Federal and state courts have each adopted Civil Rules that are similar, although not identical, to each other.  The Civil Rules have the force of law. Each court has full power to enforce them. 

Document Requests

One party can ask the other party for documents in the other party’s possession. To do so, the requesting party serves on any other party a request to produce and permit the requesting party to inspect tangible things, inspect or copy documents or electronically stored information or to permit entry onto property owned or controlled by the other party. The request must:

The other party has 28 to 30 days to respond, depending on the court, unless the parties agree to, or the court orders, a shorter or longer time to respond. The responding party must either produce the documents, state that inspection will be permitted or state an objection to the request, including the reasons for the objection.

A party can also request documents from someone who is not a party to the lawsuit by using a subpoena under Civil Rule 45.  Rule 45 provides certain procedural protections and more flexibility in the time for a response.

Consequences of a Failure to Produce Documents

If the other side refuses to produce documents, the requesting party can file a Motion to Compel their production after making a good faith effort to work through the other side's objections or reasons for failing to produce the documents. If court grants a motion to compel and the other party still refuses to produce the discovery, the court can sanction the disobedient party by:

Timing or Sequence of Discovery

Unless the court orders otherwise, methods of discovery may be used in any sequence and discovery by one party does not require any other party to delay its discovery.

Discovery Plan

A Discovery Plan sets out a course of action to gather all available evidence within the time allowed for the Civil rules.  Each party should in all but the simplest case prepare a Discovery Plan.
 

External Links

Links to external sites with additional information about this topic.

• Federal Rule of Civil Procedure 34.
• Federal Rule of Civil Procedure 45.

posted by Neil Klingshirn  |  Jan 15, 2010 10:34 AM [EST]  |  applies to Ohio