August 14, 2022

Episode 101 -When Are Responses & Objections Due to Document Requests Embedded in a Notice of Deposition Duces Tecum? When Is the Actual Production Due?

17 minutes

In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podcast? It takes just a second, but it's the #1 way to thank our production staff for these free, actionable, practice- oriented episodes. Thanks!

SHOW NOTES

Fed. R. Civ. P. 30(b)(2) authorizing deposition notice to include document requests for production ("at the deposition”)

Fed. R. Civ. P. 34(b)(2)(A) (providing that responses to document requests are due within 30 days after being served)

Gilbert v. E.I. Dupont De Nemours & Co., No. 3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016) (“Rule 30, which allows the deposing party to request that documents be produced at the time of the deposition, does indeed incorporate Rule 34. Rule 34, in turn, states that the party to whom the request is directed must respond in writing within 30 days after being served. The Court has found nothing to indicate that the 30-day limitation is not applicable to document requests incorporated into deposition notices.”)

RM Dean Farms v. Helena Chem. Co., No. 2:11CV00105 JLH, 2012 WL 169889, at *2 (E.D. Ark. Jan. 19, 2012) (Rule 34, in turn, provides that the party to whom a document request is directed “must respond in writing within 30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A). Thus, a party has 30 days within which to respond to a document request, even if the request is included in a notice of deposition, unless the time is shortened by stipulation or court order. Orleman v. JumpKing, Inc., No. Civ. A.99–2522–CM, 2000 WL 1114849, *9 (D.Kan. July 11, 2000))

Olmstead v. Fentress Cnty., Tennessee, No. 2:16-CV-00046, 2018 WL 6198428, at *4 (M.D. Tenn. Nov. 28, 2018), citing Schultz v. Olympic Med. Ctr., No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“It is well settled that Fed.R.Civ.P. 30(b)(2) provides that any deposition notice which is served on a party deponent and which requests documents to be produced at the deposition must comply with the thirty-day notice requirement set forth in Fed.R.Civ.P. 34.”)

Oldershaw v. Davita Healthcare Partners, Inc., 2017 WL 11688074, No. 15-CV-01964-MSK-NYW (D. Colorado April 13, 2017) (rule says that document request that is part and parcel of a notice of taking deposition requires production of documents at the deposition)

Sandler v. LC. System, Inc. Opinion and Order Granting Defendant’s Motions for Protective Order 2:13-cv-13000-MOB-MCM (S. D. Mich. May 8, 2014) (granting protective order against embedded document request where defendant argued, among other things, that it had produced some documents prior to the deposition date)

Richardson v. Rock City Mech. Co., LLC, No. CV 3-09-0092, 2010 WL 711830, at *4 (M.D. Tenn. Feb. 24, 2010) (Except for concerns about legibility of copies (which should have been addressed earlier), it is not clear to the Court why originals are necessary, citing Fed. R. Evid. 1003)

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