Objection Due to a Request for a Document not in Existence

Request for Nonexistent Document

The focus of this series is the various issues which cause objections during the discovery process, outlined below:

Permissibility of Discovery Tool
Number of Interrogatories
Outside the Scope of Discovery
Lacks Specific Description within Request
Vagueness, Lacks Specificity, or Ambiguity of Request
Overly Broad
Information Obtainable from Another Source
Information Equally Available to the Other Party
Documents Already Produced
Request Creates Unnecessary Burden, Expense, or Made for Purposes of Harassment
Creation of Document not in Existence
Electronic and Magnetic Data
Personal, Constitutional or Property Rights
Inconvenient Time or Place
Information Unknown or Not in Possession of Responding Party
Persons with Knowledge of Relevant Facts
Premature Request
Request Seeks Admission of a Legal Proposition
Seeks Admission of Hearsay
Seeks Admission of a Matter of Opinion
Assertions of Privilege

Objection Due to a Request for a Document not in Existence

Exchanging relevant information and materials as requested is a critical part of a successful discovery process, helping to focus the scope of a claim. Potentially, litigants may even settle out of court thanks to the discovery process. Some requests, however, do not follow the Texas Rules of Civil Procedure, and as a result, a responding party may object to that request. One common reason that a request might be objectionable is that it may require a party to create a document that does not yet exist. If a request requires the responding party to create nonexistent documents, the responding party may object.

A proper objection might include the following language:

OBJECTION: This Request seeks a document that does not exist and is therefore not in the possession, custody or control of the responding party. In re Colonial Pipeline, 968 S.W.2d 938, 942 (Tex. 1998).

Understanding which information to provide as well as the exact format for that information is a challenge, yet it is crucial to the discovery process. The intricacies and exactness of the Texas Rules of Civil Procedure necessitate a lawyer well-versed in litigation in order to avoid common mistakes and achieve the best possible outcome for a client.

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