Magistrate Judge Rich issued an interesting opinion late last year that provided guidance on the specificity that a third-party must provide to support its assertion that it has been unable to locate documents in response to a subpoena.
In Campbell v. First Am. Title Ins. Co., Civil Action No. 08-311-P-S (D. Me. Nov. 18, 2009), the plaintiff served a subpoena on third-party T&M Mortgage Solutions, Inc. (“T&M”), seeking production of mortgage and loan files. T&M failed to produce anything by the designated return date, and so the plaintiff moved for an order requiring T&M to show cause why it should not be held in contempt. In response, T&M filed two affidavits from its employees that stated, among other things, that one of the employees personally searched through the company's closed files in a storage area and was unable to locate the processing file that would have contained the subpoenaed documents, that they were unable to locate the processing file pertaining to the mortgage in question, that they had no reason to believe that the file was destroyed, and that they were unaware of any reason why they were unable to locate the processing file. In other words, the file should have existed, but they were unable to find it.
Quoting a California district court case, Judge Rich stated that “[o]rdinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party’s obligation to respond to a request for production of documents[,] ... [i]f the documents sought are known to have been in the party’s possession, custody, or control, it would not suffice for that party to simply disavow their existence without adequately explaining the disposition of the documents.” Id. at 4. The court agreed with the plaintiff that the "affidavits are insufficient to assure First American, or the court, that reasonable efforts have been made to comply with the subpoena, including by way of ... a thorough search throughout T&M’s premises for documents that T&M effectively concedes should have been maintained within its files." Id. at 4-5.
The court directed T&M to undertake a new search and, if it still could not find the documents, to "submit verified declarations (i) detailing the time(s), date(s), and specific location(s) of its search for responsive documents; (ii) identifying the person(s) who conducted the search; and (iii) stating whether and when T&M has contacted the individual, known to T&M, who closed the plaintiffs’ October 2004 loan to request a copy of the documents." Id. at 5.
The decision provides a useful reminder on the need for details to back up a claim that documents sought in discovery are unavailable. Presumably the same degree of specificity would be required where it is a party that has been unable to find the responsive documents, as well.