Discovery: What To Expect During The “Production Of Documents” Phase

You were injured in an accident that you believe was caused by someone else, which is often true in car accidents and slip or trip and falls. The other person may have been speeding, missed a road sign, or was driving recklessly. Alternatively, you may have fallen on someone’s commercial or private property due to poor lighting, a slippery surface, or an unmaintained sidewalk. Whatever the case, you feel that the other party is liable for your damages.

Because of this, you chose to file a personal injury claim, but were unfortunately unable to reach a settlement. At that point you filed a lawsuit, which the defendant responded to. Now, the discovery process–the pretrial phase dedicated to gathering evidence and developing court strategies–is underway.

The discovery process is complex because it consists of several phases (or tools) used to gather relevant information. Interrogatories and Requests for Production of Documents (RFP) are the first two litigation tools that a plaintiff has to gather information from the defendant. Requests for production of documents are a written tool, like interrogatories, used in a majority of personal injury lawsuits.

What are Requests for the Production of Documents?

Requests for production of documents go hand-in-hand with interrogatories because they’re both used in the initial written discovery phase of a personal injury lawsuit. There is some overlap between the two, as documents requested during this phase of discovery are often used to back up information that was gathered in interrogatories. For example, a plaintiff may use interrogatories to request the carrier name and policy limit for any liability policy of insurance that provided coverage to the defendant at the time of the incident. The plaintiff will then use the requests for production of documents to request copies of all policies of insurance that were identified in that interrogatory answer. Both parties have the ability to serve requests for production of documents to the other party.

Pursuant to Virginia Supreme Court Rule 4:9, a party has 21 days to respond to interrogatories and RFPs. If the plaintiff serves interrogatories and RFPs with the complaint, the defendant has 28 days to respond.

Objecting to Requests for the Production of Documents

In certain circumstances, you can object to having to produce a document requested by the defendant, such as if:

• The requested information is protected by lawyer-client privilege
• The documents are unduly burdensome to produce, such as if they were destroyed, lost, or go back several years.
• The request is overly broad.
• The requested information would not lead to the discovery of relevant admissible evidence.

Objections need to state whether any materials within your response are being withheld because of the basis of that objection. It is common for attorneys to go back and forth about what is and is not discoverable, both in requests for production of documents and other parts of the discovery phase.

If the attorneys for the plaintiff and defendant are not able to resolve the dispute concerning whether the requested documents are properly discoverable, the attorney for the party requesting the documents will file a motion to compel the production with the trial court, to which the opposing attorney responds in writing. The matter is set for a hearing before a trial judge, who conducts a hearing where the lawyers for both parties argue their respective position. The judge then rules which documents or categories of documents are discoverable and which are not.

Conclusion

Requests for the production of documents are a written tool used in the initial written discovery phase of most personal injury lawsuits. Frequently, the documents requested contain information that supplements what was discovered during interrogatories. Having tangible proof of this information helps your attorney prepare effective court strategies, oftentimes, with the documents produced by a defendant being used as an exhibit at trial to help prove your case.

In our next blog, we talk about another written discovery tool: requests for admissions.