Definition
A notice to produce is a formal written demand served by one party upon an adverse party in litigation, requiring that party to produce a specified document or paper at trial. Upon receipt of such notice, if the party holding the document fails to produce it, the demanding party is entitled to offer secondary evidence of the document's contents — meaning the original need not be shown, and testimony or copies may substitute for it.
The notice to produce operates as a prerequisite to the admission of secondary evidence under the best evidence rule: a party cannot ordinarily introduce a copy or oral description of a written instrument when the original is in existence and accessible. The notice forces the issue. If the opposing party receives proper notice and still withholds the document, the law treats the original as effectively unavailable and removes the objection to secondary evidence.
Two procedural contexts are recognized:
1. At trial. When a party knows or reasonably believes the opposing party holds a document material to the case, a notice to produce may be served requiring production at the trial itself. Failure to comply opens the door to secondary evidence of that document.
2. Interlocutory (pre-trial). A notice to produce may also be served before trial as part of the pretrial discovery process, requiring document production at an earlier stage of the proceeding.
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Common Confusion
Notice to produce should not be confused with a subpoena duces tecum. A subpoena duces tecum is a court-issued command directed at a witness — including non-parties — to bring specified documents to court, enforceable by contempt. A notice to produce is a party-to-party demand and carries no direct contempt sanction; its consequence is evidentiary, not coercive. The distinction matters most in historical sources: before modern discovery rules, the notice to produce was the primary mechanism for compelling document disclosure between parties, and conflating it with subpoena practice will distort analysis of pre-code procedure.
Modern discovery rules — Federal Rules of Civil Procedure Rule 34 and its state equivalents — have largely displaced the common law notice to produce as an independent procedural device. Researchers encountering the term in contemporary materials should consider whether the source is using it in the traditional common law sense or loosely to describe a document request under modern rules.
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Why It Matters in Research
This term is principally a creature of common law pleading and evidence practice. Its significance in modern litigation is diminished but not eliminated, particularly in jurisdictions that retain code pleading traditions or in contexts — such as certain administrative proceedings or courts of limited jurisdiction — where formal discovery mechanisms are not fully available.
For historical corpus research, the notice to produce is a critical concept in pre-Federal Rules litigation. Sources from the nineteenth and early twentieth centuries will treat it as the standard mechanism for obtaining party-held documents before trial. Understanding that its primary consequence was evidentiary (enabling secondary evidence) rather than coercive (compelling production under penalty) is essential to reading these sources accurately.
Researchers working in English legal materials should note that the Common Law Procedure Act 1852 codified and refined notice to produce practice in England, and treatise discussions citing that Act reflect English rather than American procedure. American courts adopted similar principles through case law and later through code provisions, but the procedural details diverged.
The term appears frequently in nineteenth-century practice manuals — Chitty's Archbold, Chitty's General Practice, and similar works — as a routine litigation tool. When these sources are cited in later American decisions or treatises, the underlying English procedural context should be kept in mind.
Do not assume that a historical reference to "notice to produce" maps cleanly onto a modern Rule 34 request for production. The evidentiary consequence (secondary evidence admissibility) is the hallmark of the traditional notice to produce and has no direct analog in modern discovery sanctions practice.
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Historical Dictionary Support
The historical dictionaries are consistent in their core description. Burrill defines notice to produce as a written notice in an action at law requiring the opposite party to produce a described paper at trial, citing Chitty's Archbold and Chitty's General Practice. Black's carries a similar formulation. Rapalje & Lawrence add the useful distinction between the trial-stage and interlocutory forms, and explicitly ground the evidentiary consequence — permission to give secondary evidence — as the operative result of noncompliance.
None of the historical sources adequately address the displacement of this device by modern discovery rules, which is expected given their publication dates. They also do not address the term's relationship to privilege: a party holding a document subject to a notice to produce could, under common law practice, resist production on privilege grounds, and the secondary evidence consequence did not automatically follow from a privileged refusal. Researchers should not assume from the dictionary definitions that any failure to produce triggered secondary evidence rights; the case law on privileged documents is more nuanced.
The Rapalje & Lawrence entry is the most useful of the three for understanding procedural mechanics, as it distinguishes the two timing contexts and cites the English statutory basis.
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Jurisdictional Note
Modern American federal practice does not use "notice to produce" as a term of art; Rule 34 requests for production have replaced the function. Some state courts, particularly those with older code pleading traditions or in specialized proceedings, may still use the term or recognize its common law operation. English and Commonwealth legal sources will use the term more consistently, but their procedural frameworks differ from American practice in important respects.
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