SEEK AND YE SHALL FIND
Anonymous

    Last year October, while working on a products liability case, I was asked to compile documents, including blueprints, responsive to a request for production of documents from one of the opposing parties (we were one of several defendants). The requesting party was in desperate need of the documents for an upcoming deposition, so I was instructed to turn over the original documents immediately, "as is." "As is?" I questioned, "Without bates stamping them? I don’t think so." I mean, how in the world could I be expected to turn over original documents without identifying what I’m producing? I promised to hand-deliver the documents to opposing counsel myself after I finished numbering the documents and preparing at least a general index of what I was turning over. Opposing counsel was to make copies of what they needed, and to return the original documents to my attention. A few days later, I received a call from opposing counsel indicating that they had forwarded the original documents to yet another party in this case for their review and copying, and that I should contact them for the return of the documents. I proceeded to contact the other party and asked them to return the original documents to my attention when they were done reviewing them. Approximately four weeks later, the original documents were returned, and I proceeded more comprehensively to index and identify each document, when I discovered that four pages of the original documents were missing. I contacted the party to whom I had turned the documents over and informed them that four pages were missing. "We don’t have the documents," I was told, "Check with the other party." So, I contacted the second party and was told that they did not have the documents either, in fact, those pages had been missing when they received the documents. I again contacted the first party and asked them to please check with everyone at their office who had come in contact with the documents. "We absolutely do not have the documents; they were probably missing before we got them from your office." What? Not possible: the documents had been bates stamped (thank God) and indexed, and no copies were made, so how in the world could they be missing? Desperate and in a panic that "original" client documents were "lost," I questioned--no, interrogated--everone I could think of. My investigation went on for weeks, until I finally grew weary and gave up on my search, certain that we would never find or see those documents again.

    Exactly one year later, the case was heading to trial. All parties were putting the finishing touches on discovery--depositions of experts, final naming of witnesses, compiling trial exhibits and exhibit lists--when I received by hand-delivery a letter with the original missing documents. The letter accompanying my wayward originals indicated that they had been returned to opposing counsel by their expert, who had taken them out of our original set upon his review, ". . . please accept my apologies." Ugh. . . . To think that I literally went crazy looking for the missing documents a year ago, when opposing counsel’s expert had them all the time. Ugh.... Double Ugh......

    The lesson learned: never turn over original documents to anyone, no matter how urgent the request; let them review the documents at your firm or send them out to a copy service, rush service if necessary. Secondly, for those of you requesting and receiving documents, never say, "No, we absolutely do not have your documents" without making a thorough search. And last, but not least, never produce or turn over documents to anyone without properly identifying the documents, for you never know when the case of the missing document may happen to you.