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It's all in the documents: the discovery rules work best when they work together. Strategic use of the rules for obtaining documents and deposing witnesses will thwart defense attempts to obstruct your search for evidence.

Article Excerpt
In all complex litigation, the truth is in the documents. Your challenge is to identify all relevant documents and compel their production. This can be a daunting task because opposing counsel is often evasive. The strategic use of Federal Rule of Civil Procedure 34, coupled with Rule 30, can help bring the documents you need to light.

Rule 34 sets out the procedure and time requirements for producing, inspecting, and copying documents by parties to a lawsuit. (1) Generally, it requires that the responding party' be given at least 30 days to assemble and produce the requested documents or to state objections. (2)

The responding party has to produce all documents that are in its control. (3) Control is defined not only as possession, but also as the legal ability to obtain the documents requested from a nonparty (for example, records possessed by a subsidiary corporation or those turned over to an independent accounting firm or consultant). (4) The responding party also must organize and label the documents.

Because Rule 34 requests are often met with generic responses such as "overbroad, vague, irrelevant, and not calculated to lead to admissible evidence," you must establish a clear record that will effectively support a motion to compel production.

When demanding documents, the interrogating par has the right to choose the method of examination, whether oral examination or written interrogatories. (5) Oral examination is generally favored because it allows for the cross-examination of evasive, recalcitrant, or hostile witnesses. (6) Depositions are a good vehicle for establishing the existence of documents and getting complete production responses.

Rule 30(b)(5) allows you to compel witnesses to bring documents or tangible things to a deposition. If a Rule 34 request is served in connection with a Rule 30(b)(5) deposition notice, the deponent will be required to bring the requested documents to the deposition for examination, copying, and inquiry. The 30-days-notice requirements and other dictates of Rule 34 will apply when compelling the production of tangible items under the Rule 30 (b) (5) deposition protocol.

Rule 30(b)(5) and Rule 34 apply exclusively to parties to litigation. For nonparties, you need Rule 45. Nonparty testimony is compelled by subpoena,...

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