408.02 Duty to Search Records
A party served with a request for discovery has a duty to thoroughly search its records for all information properly sought in the request, and to provide such information to the requesting party within the time allowed for responding to the request. [ Note 1.] With regard to document production requests, a proper written response to each request requires the responding party to state that there are responsive documents and that they either will be produced or will be withheld on a claim of privilege; to state an objection with appropriate reasons; or to state that no responsive documents exist. [ Note 2.] With regard to electronically stored information, if no form for the electronically stored information is specified in the request or the party objects to the form, a proper written response includes a statement of the form the party intends to use in its response. [ Note 3.] In addition, the responding party has a duty "to select and produce the items requested [and to avoid] simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought under [Fed. R. Civ. P. 34]." [ Note 4.]
A responding party that, due to an incomplete search of its records, provides an incomplete response to a discovery request, may not thereafter rely at trial on information from its records which was properly sought in the discovery request but was not included in the response thereto (provided that the requesting party raises the matter by objecting to the evidence in question) unless the response is supplemented in a timely fashion pursuant to Fed. R. Civ. P. 26(e). [ Note 5.] See TBMP § 527.01(e) ("Estoppel Sanction").
NOTES:
1. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1555 (TTAB 2000).
2. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1556 (TTAB 2000).
3. Fed. R. Civ. P. 34(b)(2)(D).
4. See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1556 (TTAB 2000).
5. See Panda Travel, Inc. v. Resort Option Enterprises, Inc., 94 USPQ2d 1789, 1791-92 (TTAB 2009); Bison Corp. v. Perfecta Chemie B.V., 4 USPQ2d 1718, 1720 (TTAB 1987).