Use this At A Glance Guide to learn the Virginia Supreme Court Rules related to Motion for Protective Order in Virginia Circuit Courts. For more detailed information, please see the SmartRules Request for Production Guide for the court where your action is pending.

Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form), or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 4:1(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to produce any such documents or electronically stored information to the court in which the proceeding is pending at the time of trial; or (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 4:1(b). V.S.C.R. 4:9(a)(eff 1/1/09).

The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, period and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. V.S.C.R. 4:9(b)(i)(eff 1/1/09).

As a matter of custom and practice, the same caption format used for court-filed documents is used for requests for production.

The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and production shall be permitted as to the remaining parts. If objection is made to the requested form or forms for producing electronically stored information or if no form was specified in the request the responding party must state the form or forms it intends to use. V.S.C.R. 4:9(b)(ii)(eff 1/1/09).

A party who produces documents for inspection either shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. V.S.C.R. 4:9(b)(iii)(A)(eff 1/1/09).

Responses to a request for production of electronically stored information shall be subject to the provisions of Rules 4:1(b)(7) and 4:1(b)(8). If a request does not specify the form or forms for producing electronically stored information, or if a responding party objects to the requested form or forms of production, a responding party must produce the information as it is ordinarily maintained if it is reasonably usable in such form or forms, or must produce the information in another form or forms in which it is reasonably usable. A party need not produce the same electronically stored information in more than one form. V.S.C.R. 4:9(b)(iii)(B)(eff 1/1/09).

Production of documents and electronic records sought in Virginia pursuant to a subpoena issued under the authority of a foreign jurisdiction shall be subject to the provisions of the Uniform Interstate Depositions and Discovery Act, Virginia Code 8.01-412.8 through 8.01-412.15. V.S.C.R. 4:9(b)(iv)(eff 7/1/09).

No request to produce shall be served, and no subpoena shall issue, until prior order of the court is obtained when the party upon whom the request is to be served or the person to whom the subpoena is to be directed is the Governor, Lieutenant Governor, or Attorney General of this Commonwealth, or a judge of any court thereof; the President or Vice President of the United States; any member of the President’s Cabinet; any Ambassador or Consul; or any Military Officer on active duty holding the rank of Admiral or General. V.S.C.R. 4:9(c-1).

Patient health records protected by the privacy provisions of Code Section 32.1-127.1:03 shall be disclosed only in accordance with the provisions and procedures prescribed by that statute. V.S.C.R. 4:9(c-2).

If a party fails or refuses to obey an order made under section (b) of this Rule, the court may proceed as provided by Rule 4:12(b)(2). V.S.C.R. 4:9(c)(renumbered eff 1/1/09).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the Georgia Code related to amended answer in Georgia Superior Court. For more detailed information, please see the SmartRules Request for Production Guide for the court where your action is pending.

Discovery requests may relate to any unprivileged matter relevant to the subject matter of the pending action and relating to a claim or defense of any party. O.C.G.A. 9-11-26(b)(1).

A discovery request is permissible even if the information sought would be inadmissible at trial, as long as the information sought appears reasonably calculated to lead to the discovery of admissible evidence. O.C.G.A. 9-11-26(b)(1).

A party may discover the existence and contents of any insurance agreement under which any person providing insurance might be required to satisfy all or part of any judgment entered in the action or to indemnify or reimburse for payment of such judgment. O.C.G.A. 9-11-26(b)(2).

Unless otherwise ordered by the court, the frequency of use of any discovery method is unlimited. O.C.G.A. 9-11-26(a).

A party who has responded to an discovery request with a response that was complete when made has no duty to supplement his response, except if:
1. The discovery request concerns the identity and location of persons having knowledge of discoverable matters;
2. The discovery request concerns the identity of persons likely to be called as experts at trial, the subject matter on which he is expected to testify, and the substance of his testimony;
3. The party later learns that the response was incorrect when made; or
4. The party learns that the statement is no longer true, and his failure to amend the response would amount to a knowing concealment. O.C.G.A. 9-11-26(e)(1); O.C.G.A. 9-11-26(e)(2).

A duty to supplement responses may be imposed by:
1. Order of the court;
2. Agreement of the parties; or
3. New requests for supplementation of prior responses. O.C.G.A. 9-11-26(e)(3).

Through a request for production, a party may require another person or entity:
1. To produce any designated documents within the general scope of discovery as outlined above, and to allow the party serving the request or his agent to inspect and copy such documents; and
2. To allow the party serving the request or his agent to inspect, copy, test, and/or sample any tangible thing that constitutes or contains any discoverable matter.
O.C.G.A. 9-11-34(a)(1).

A document or tangible item is discoverable through a request for production only to the extent that it is within the possession, custody, or control of the person or entity served with the request. O.C.G.A. 9-11-34(a)(1).

Through a request for production, a party may require another person or entity to permit entry upon any designated land or other property in the possession or control of the person or entity for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property, or any designated object or operation thereon, within the scope of discoverable matter. O.C.G.A. 9-11-34(a)(2).

A party may serve a request for production on any non-party person, firm, or corporation, including practitioners of the healing arts and private or government-operated hospitals and healthcare facilities. O.C.G.A. 9-11-34(c)(1); O.C.G.A. 9-11-34(c)(2).

Certain confidentiality requirements concerning mental illness (see O.C.G.A. 37-3-166.), mental retardation (see O.C.G.A. 37-4-125.), and alcohol and drug treatment (see O.C.G.A. 37-7-166.) apply to requests for production. O.C.G.A. 9-11-34(d).

Objections must be filed within the time period allowed for responding to the request for production. For any objection to a request for production, the person or entity objecting must state the specific reasons for the objection and the specific part of the request at issue. O.C.G.A. 9-11-34(b)(2).

Where a non-party practitioner of the healing arts, or a private or government-operated hospital or healthcare facility, is served with a request for production of records (including requests for records of a non-party), any of the non-party on whom the request is served, any party of record, or the party whose records are sought may object to production of such records. Such an objection must be filed with the court and served on the person or entity from whom production has been requested and on all parties to the action. After such an objection, the requested records may not be produced until further order of the court. O.C.G.A. 9-11-34(c)(2).

If no objection is filed with the court within ten (10) days of being served with the request, the non-party served with the request must comply promptly with the request. O.C.G.A. 9-11-34(c)(2).

On the filing of an objection to a request for medical records, the party serving the request then may move to compel the person or entity served with the request to comply therewith. O.C.G.A. 9-11-34(c)(2). See Cobb County Superior/State Court SmartRules capsule: MOTION TO COMPEL.

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to requests for production in the New York Supreme Courts. For more detailed information, including local rules, on requests for production in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Requests for Production Guide for the court where your action is pending.

Timing:

A notice to produce documents or make documents available for inspection (directed to a party) or a subpoena duces tecum (directed to a non party) may be issued at any time after commencement of the action. CPLR 3120.

The Request for Production or Inspection of Documents must specify within it the time for compliance, which must be at least twenty (20) days. CPLR 3120(2). A party objecting to all or any part of a Request for Production or Inspection must serve a written response stating the objections within twenty (20) days of service of the Request for Production or Inspection. CPLR 3122(a). No additional time is added to this period if service of the Request for Production was made by personal delivery, facsimile or electronic transmission. CPLR 2103(b)(1), (5) and (7).

If the requests were served by overnight delivery add one (1) day to the response period. CPLR 2103(b)(6).

If the requests were served by mail, add five (5) days to the response period. CPLR 2103(b)(2).

The day discovery requests are served is not included when calculating the time to respond. Response time starts running the day after service. Gen. Const. L. 20.

Saturdays, Sundays, and legal holidays are included in the count if they do not fall on the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the response period runs until the end of the next non-holiday business day. Gen. Const. L. 25. “Legal holidays” include those specified in Gen. Constr. L. 24, plus any others designated by the federal or state government. Gen. Const. L. 24.

Request for Production Rules:

A request for production or subpoena duces tecum may request production or inspection, copying, testing or photographing of any designated documents or any things which are in the possession, custody or control of the party or person served. Or it may request permission to enter upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon. CPLR 3120(1).

The notice (or subpoena duces tecum) must specify the time for inspection (not less than twenty (20) days after service of the notice or subpoena) and in the case of inspection the place and shall set forth the items to be produced or made available for inspection or copying. Each item or category of items must be described with reasonable particularity. CPLR 3120(2).

The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof. CPLR 3120(3).

Any objection to a request for production or inspection must state, with reasonable particularity, the reasons for each objection. If an objection is to a single item or category of items, the item or category must be specified within the objection. CPLR 3122(a).

When a request to produce documents for inspection has been issued, the responding party must issue a notice if any documents appearing to be within the scope of the request are withheld. The notice must specify the legal ground for withholding each document. Unless divulgence would cause the disclosure of privileged information, the notice must also state (1) the general subject matter of each withheld document; (2) the type of document; (3) the date of the document and (4) such other information as would necessary to identify the document for subpoena purposes. CPLR 3122(b).

If a party fails to comply with or otherwise respond to a request for production or inspection of documents, the requesting party may file a motion seeking to compel compliance or response. CPLR 3124.

The requesting party may also seek sanctions against any party who refuses to obey an order for disclosure or who willfully fails to disclose information that ought to have been disclosed. CPLR 3126.

Use this “At A Glance Guide” to learn the statewide rules of civil procedure (Illinois Compiled Statutes and Illinois Supreme Court Rules) applicable to requests for production in Illinois Circuit Court.  For more detailed information, including local rules, on requests for production in a specific Illinois Circuit Court, please see the SmartRules Illinois Circuit Court Request for Production Guide for the court where your action is pending.

Timing:

A request for production must allow a reasonable time for response which may not be less than twenty-eight (28) days absent an order of the court or agreement of the parties. IL Supreme Court R. 214.

Except with leave of court and for good cause shown, no discovery procedure “shall be noticed or otherwise initiated” prior to the time that all defendants have appeared or are required to appear in the action. IL Supreme Court R. 201(d).

Unless the court orders otherwise for the convenience of the parties and witnesses and in the interests of justice, a party may use methods of discovery in any sequence. IL Supreme Court R. 201(e).

Unless the court orders otherwise for the convenience of the parties and witnesses and in the interests of justice, the fact that a party is conducting discovery “shall not operate to delay any other party’s discovery.” IL Supreme Court R. 201(e).

Request for Production Rules:

Any party may, by written request to any other party:

1. Direct the production, copying reproduction, photographing, testing or sampling of specified documents, objects or tangible things whenever relevant to the subject matter of the action. IL Supreme Court R. 214.

2. Gain access to real estate for the purpose of inspections, surveys, or the taking of samples or photographs whenever relevant to the subject matter of the action. IL Supreme Court R. 214.

3. Seek information calculated to lead to the discovery of any of the items listed above whenever relevant to the subject matter of the action. IL Supreme Court R. 214.

The request must state the place and manner of performing the acts compelled by the request. IL Supreme Court R. 214

Discovery materials may not be filed except upon leave of court or as authorized by statute or local rule. IL Supreme Court R. 201(m).

Notwithstanding the above, discovery requests to non-parties must be filed with the court. IL Supreme Court R. 201(o).

A copy of the request for production should be served on all other parties entitled to notice. IL Supreme Court R. 214.

Use this At A Glance Guide to learn the statewide rules of civil procedure, (the California Code of Civil Procedure and California Rules of Court) applicable to requests for production in the California Superior Courts. For more detailed information, including local rules, on requests for production in a specific California Superior Court, please see the SmartRules California Request for Production Guides for the court where your action is pending.

Timing:

Defendant may make an inspection demand without leave of court at any time. CCP § 2031.020. (amended eff 6/29/09).

A plaintiff may make a demand for inspection, copying, testing, or sampling without leave of court at any time that is 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. CCP § 2031.020(b). (amended eff 6/29/09).

On motion with or without notice, the court, for good cause shown, may grant leave to a plaintiff to make a demand for inspection, copying, testing, or sampling at an earlier time. CCP § 2031.020(d). (amended eff 6/29/09).

Responses to requests for production are due within thirty (30) days (five (5) days in unlawful detainer actions) if the requests were personally served, thirty-five (35) days if the requests were served by mail, and thirty (30) days plus two (2) court days if the requests were served by express mail or facsimile or electronically. CCP § 2031.260(a). (amended eff 6/29/09); CCP § 1013; CRC 2.260 (renumbered eff 1/1/07).

Unless, on motion of the party making the demand, the court has shortened the time for response, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. CCP § 2031.260(a). (amended eff 6/29/09).

Service may be made by fax on written agreement of the parties. CRC 2.306(a)(renumbered eff 1/1/08). Fax service completed after 5 p.m. is deemed to have occurred on the next court day. CRC 2.306(g)(renumbered eff 1/1/08).

Request for Production Rules:

Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item. CCP § 2031.030(c)(1). (amended eff 6/29/09).

A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced. CCP § 2031.030(a)(2). (eff 6/29/09).

The date specified for production must be at least thirty (30) days (five (5) days for unlawful detainer actions) from the service of the demand, thirty-five (35) days if service was made by mail and thirty (30) days plus two (2) court days if service was made by express mail or fax. CCP § 2031.030(c)(2). (amended eff 6/29/09); CCP § 1013.

The court for good cause shown may grant leave to specify an earlier date. CCP § 2031.030(c)(2). (amended eff 6/29/09).

Specify a reasonable place for making the inspection, copying, testing, or sampling, and performing any related activity. CCP § 2031.030(c)(3). (amended eff 6/29/09).

Specify any inspection, copying, testing, sampling, or related activity that is being demanded, as well as the manner in which that activity will be performed, and whether that activity will permanently alter or destroy the item involved. CCP § 2031.030(c)(4). (amended eff 6/29/09).

In addition to demands for inspection, copying, testing, or sampling, a party may propound a supplemental demand any later acquired or discovered documents, tangible things, land or other property, or electronically stored information. CCP § 2031.050(a). (amended eff 6/29/09).

A party may propound a supplemental demand twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a trial date. CCP § 2031.050(b). (amended eff 6/29/09).

On motion, for good cause shown, the court may grant leave to a party to propound an additional number of supplemental demands for inspection, copying, testing, or sampling. CCP § 2031.050(c). (amended eff 6/29/09).

If electronically stored information produced in discovery is subject to a claim of privilege or of protection as attorney work product,the party making the claim may notify any party that received the information of the claim and the basis for the claim. CCP § 2031.285(a). (added eff 6/29/09).

After being notified of a claim of privilege or of protection, a party that received the information shall immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim. CCP § 2031.285(b). (added eff 6/29/09).

Prior to the resolution of the motion brought under subdivision (d), a party shall be precluded from using or disclosing the specified information until the claim of privilege is resolved. CCP § 2031.285(c)(1). (added eff 6/29/09).

A party who received and disclosed the information before being notified of a claim of privilege or of protection under subdivision (a) shall, after that notification, immediately take reasonable steps to retrieve the information. CCP § 2031.285(c)(2). (added eff 6/29/09).

If the receiving party contests the legitimacy of a claim of privilege or protection, he or she may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal. CCP § 2031.285(d)(1). (added eff 6/29/09).

Until the legitimacy of the claim of privilege or protection is resolved, the receiving party shall preserve the information and keep it confidential and shall be precluded from using the information in any manner. CCP § 2031.285(d)(2). (added eff 6/29/09).

In the first paragraph immediately below the title of the case must appear the identities of the propounding and responding parties and the set number. CCP § 2031.030(b). (amended eff 6/29/09); CRC 3.1000(a), re supplemental responses, (renumbered eff 1/1/07).

Inspection demands must be separately set forth and identified by number or letter. CCP § 2031.030(c). (amended eff 6/29/09). Each set must be consecutively numbered. CCP § 2031.030(a)(1). (amended eff 6/29/09).

The party demanding an inspection shall serve a copy of the inspection demand on the party to whom it is directed and on all other parties who have appeared in the action. CCP § 2031.040. (amended eff 6/29/09).

Service may be made by fax on written agreement of the parties. CRC 2.306(a)(renumbered eff 1/1/08). Fax service completed after 5 p.m. is deemed to have occurred on the next court day. CRC 2.306(g)(renumbered eff 1/1/08).

The inspection demand and the response to it must not be filed with the court. CCP § 2031.290(a). (amended eff 6/29/09); CRC 3.250(a) and (b) (renumbered eff 1/1/07).

Use this At A Glance Guide to learn the Federal Rules of Civil Procedure that govern requests for production in the United States District Courts. For more detailed information, including local rules, on requests for production in a specific United States District Court, please see the SmartRules United States District Court Requests for Production Guide for the court where your action is pending.

Timing:

It is accepted practice that parties propound discovery requests after the early meeting of counsel required by Rule 26(f). Federal Rules of Civil Procedure 33 (interrogatories), 34 (requests for production) and 36 (requests for admission), amended effective 12/01/07, no longer explicitly provide that discovery may not be propounded until after the Rule 26(f) meeting.

The court must set a discovery cut-off date. FRCP 16(b)(3)(A)(amended 12/01/07).

Unless by mutual agreement, the inspection may not be scheduled for a time sooner than thirty (30) days after the request is served, if personally served, and not sooner than thirty-three (33) days after service by mail. FRCP 34(b)(2)(A)(amended 12/01/07); FRCP 6(d)(amended 12/01/07). 

The time to respond may be shortened or extended as directed by the court, or agreed to in writing by the parties. FRCP 36(a)(3)(amended 12/01/07).

Parties may extend or shorten discovery deadlines by agreement, except that where an extension would interfere with any time set for completion of discovery, hearing of a motion, or trial, the agreement requires approval of the court. FRCP 29 (amended 12/01/07).

Request for Production Rules:

A Rule 34 request may be served on any party to the action. FRCP 34(a)(amended 12/01/07).

As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. FRCP 34(c)(amended 12/01/07).

A Rule 34 request can include a request 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:

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

Any designated tangible things; or

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. FRCP 34(a)(amended 12/01/07).

A Rule 34 request must set forth a reasonable time, place and manner for the inspection to take place. FRCP 34(b)(1)(B)(amended 12/01/07).

The request may specify the form or forms in which electronically stored information is to be produced. FRCP 34(b)(1)(C)(amended 12/01/07).

A response may include an objection to the requested form or forms for producing electronically stored information. If objection is made to the requested form or forms of producing electronically stored information–or if no form was specified in the request–the responding party must state the form or forms it intends to use. FRCP 34(b)(2)(D)(amended 12/01/07).

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. FRCP 34(b)(2)(E)(amended 12/01/07).

Unless by mutual agreement, the inspection may not be scheduled for a time sooner than thirty (30) days after the request is served, if personally served, and not sooner than thirty-three (33) days after service by mail. FRCP 34(b)(2)(A)(amended 12/01/07); FRCP 6(e).

The following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: (i) depositions, (ii) interrogatories, (iii) requests for documents or to permit entry upon land, and (iv) requests for admission. FRCP 5(d)(amended 12/01/07).

The propounding party must serve the responding party, and all other parties who have appeared in the action, with the request for production. FRCP 34(a)(amended 12/01/07); FRCP 5(a)(amended 12/01/07).

In a July, 2006 article Andrew Rhys Davies writes:”The difficulty with clawback arrangements is that it is unclear whether they actually preserve privilege. Under the Rules Enabling Act, the new procedural rules cannot modify the substantive law on privilege, so the existing law on inadvertent production will determine whether a clawback agreement preserves privilege in a particular case. (See Proposed Fed. R. Civ. P. 26(b)(5), advisory committee’s note.) Unfortunately, the case law on inadvertent production, and on the effectiveness of clawback agreements, is all over the map. ”

So how have clawback agreements performed since the December 2006 amendments? Here begins a series of posts regarding clawback caselaw. 

In Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008), the clawback agreement in question provided, among other things, a procedure for challenging a claim that a produced document must be returned. Plaintiff’s motion to compel was denied as untimely for failing to follow the procedure the parties had agreed to in the clawback agreement. So in this case, the court did enforce the clawback agreement. 

In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) , the court considered a situation where the parties had agreed to a clawback agreement, but then defendants had informed the court that they would do a document by document review and that a clawback agreement was not necessary.  Plaintiffs found in defendants’ production some documents that appeared potentially privileged. The court found a waiver, as described by “K&L Gates” in an article from June 2008:  “Magistrate Judge Paul W. Grimm (author of the Hopson decision) concluded that any privilege/protection that attached to the 165 electronic documents was waived by the voluntary production of the documents to plaintiff by defendants.  The court found that under either the strict approach to privilege waiver, or the intermediate test, the finding of waiver would be the same.  The court observed that the intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege:  (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.” 

For more information on motions to compel in most major state and federal litigation districts in the United States, see SmartRules Guides.

In Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005), the magistrate judge discussed in depth issues concerning how parties should conduct discovery of voluminous electronic information. The court addressed how to ensure both that the requesting party receive appropriate discovery and that the producing parties are not subject to unreasonable burden, expense or risk of waiving attorney-client or work-product privileges. The Hopson decision discusses the merits of using negotiated non-waiver, electronic records production agreements between parties as a means of avoiding the waiver of attorney-client privilege and work-product protections in the production of large volumes of ESI.