Sooner or later, every trial lawyer encounters an opponent playing games with document production. Ethically, we can’t tolerate that. Zealous advocates look for “smoking guns” and other documents to prove the elements of their case. Unscrupulous attorneys (and yes, they’re out there), stand in the way of that goal. Consider the following tactics to overcome document production games.
1. Begin the Process with Your Own Client
You will first need to learn the case by reviewing your client’s own documents. If you do your job, you will soon identify gaps needing to be filled. Pressure your client to give you everything. This includes impeachment material. The goal is to start getting a handle on the “universe of documents” in the case.
2. Use Document Databases
If you belong to a specialty bar association, you may have access to party-specific documents shared by other lawyers. Think about the possibilities in a products liability, business tort or employment case. Think outside the box.
3. Take a “Deathstar” Documents Deposition
Trial Attorney Mark Kosieradzki, a well-known author and authority on FRCP 30(b)(6) corporate depositions, proposes that attorneys should conduct what he refers to as “Deathstar” depositions: combining document production with the deposition of a corporate designee to testify about that production. He proposes that the corporation be required to produce a person able to testify about:
- The existence of the documents
- The purpose for the creation, duplication or storage of the documents
- Document retention/destruction policies
- The location of the documents
- The organizational scheme or indexing of the documents
- The methods of search for the documents
- The completeness of the documents produced
- The authenticity of the documents produced
A “Deathstar” deposition notice contains an FRCP 34 Request for Production, the aforementioned FRCP 30(b)(6) areas of questioning list and an FRCP 30(b)(2) request that the documents be produced at deposition. The deposition itself would be scheduled more than 30 days out, to allow the receiving party to respond to the FRCP 34 document request and pose any objections which would then be addressed at the deposition. The questioner would NOT get into the substance of the documents at the deposition. Substantive depositions will come later.
4. Follow Up with Document Subpoenas to Third Parties
At this point, many gaps should be filled, especially if utilizing the “Deathstar” approach. Still, you may find that crucial documents are in the hands of third parties. Don’t hesitate to subpoena these documents. If you anticipate game playing again, consider the “Deathstar” approach. It is fully applicable to both parties and non-parties.
5. Use Requests for Admissions
Requests for Admission can be useful to nail down the authenticity of documents or to establish the applicability of hearsay exceptions. Don’t overlook the possibility that the opponent may give you a document but play games with admission at trial. Consider requests for admission as potential admissibility shortcuts. You may want to combine a request for admissions with a set of interrogatories requiring the receiving party to explain any denials.
Consider these simply as examples of ways to combat case document game playing. You have a duty to stand up to games. Don’t let your opponent hide the smoking gun.
