Request for production of documents under Rule 34
An adversary proceeding is a lawsuit filed within a bankruptcy case. It is an action commenced by a plaintiff filing a complaint against one or more defendants. An adversary proceeding resembles a typical civil case from state court. The plaintiff is the person, partnership or corporation initiating the lawsuit.
Discovery in adversary proceedings is permitted pursuant to the Federal Rules of Civil Procedure. (FRCP) While depositions are permitted the use of other discovery methods is often more cost effective.
The scope of discovery under Rule 26(b) is very broad. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
PRODUCTION AND INSPECTION OF DOCUMENTS AND TANGIBLE THINGS UNDER RULE 34 OF THE FCRP
Demanding production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes is permitted under Rule 34 of the Federal Rules of Civil Procedure. There is no numerical limit to the number of requests but a party served with excessive requests may seek leave of court to limit the number of requests.
Requests for production and inspection of documents and tangible things are very useful in that they allow a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.
A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:
(A) any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
The request:
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
The party to whom the request is directed must respond in writing within 30 days after being served.
For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
An objection to part of a request must specify the part and permit inspection of the rest.
The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use.
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(I) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
The author of this article, Stan Burman, is a freelance paralegal with extensive experience in adversary proceedings in bankruptcy court. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
