Legal Memorandum: Objections to Requests for Production

Issue: May a party avoid complying with a request to produce an object relevant to litigation by asserting that the item is not within its custody or control?

Rule 58.01(a)(1) of the Missouri Rules of Civil Procedure states that the requesting party’s right to production of a tangible thing is premised on the other party having “possession, custody or control” of the thing requested.

A failure to state this as an objection to a request for production is significant.  Rule 58.01(c) addresses objections to requests for production.  The party resisting production is required to state “each reason for objection . . . in detail.”  Mo. R. Civ. P. 58.01(c)(2).  Further, “[i]f information is withheld because of an objection, then each reason for the objection shall be stated.”  Id. r. 58.01(c)(3).  Federal Rule 34 also provides that objections to a request for production must be stated, “including the reasons.”  Fed. R. Civ. P. 34(b)(2)(B). 

The mere assertion that a requested item is not within the responding party’s possession, custody or control is probably insufficient to establish the second prong of Rule 58.01(a)(1).  Instead, the party asserting the objection must present facts establishing that fact.  See 7 Moore’s Federal Practice, supra, § 34.14[b][1], at 34-73 (citing cases which require party to “properly deny” existence of requested things, such as by swearing to that assertion).

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