By: Shari Lee Genser, Esq.

When preparing documents to be exchanged in discovery, it is very important to be organized.  This organization extends beyond the documents you are producing, and equally applies to those documents not being produced. It is important to keep track of what documents you are producing in a detailed list, and likewise, to keep track of what documents you are not producing, and why.

By way of example, when a document request extends beyond the reach of what is available to you because you no longer maintain the original and a copy cannot be obtained, make note of your efforts to locate the original document, as well as any and all efforts to obtain a copy. This issue often arises with respect to requests for historic financial records that may extend beyond the record-keeping policy of your financial institutions. If your bank maintains statements for eight years, and the document request seeks 10 years of historic statements, you will likely be unable to fully comply. To avoid a discovery dispute, make clear at the outset what you are producing, as well as what you are not, with an explanation of your efforts to comply.

By way of further example, when a document request seeks items which are protected by privilege, such as medical records that are protected by doctor-patient privilege, or communications with an attorney that are protected by attorney-client privilege, make clear at the outset what your objections are to the document request. Your attorney may wish to review the documents with you before asserting these objections, but the privilege holder has the final decision whether to produce them or not. To avoid a discovery dispute, assert these privileges up front.

If your adversary is not put on notice of your reasons for not producing documents, a discovery dispute may arise and motion practice may follow. To avoid the expenditure of additional counsel fees on such discovery disputes, provide a clear explanation early on as to what documents are missing from your discovery production. While you ultimately cannot prevent the other side from filing a discovery motion if they reject your explanations, you may be able to successfully defend against such a motion and you will be better suited to submit the requisite opposition if you have already provided a clear explanation for the missing documentation.