Section 11 Requests for the Production of Documents
(Defendant to Plaintiff)

Summary

This template is a model set of requests for production (RFP) that defendants may use in lawsuits brought by private plaintiffs alleging claim(s) under Section 11 of the Securities Act of 1933. This template includes practical guidance, drafting notes, and optional clauses. Defendants in Section 11 litigation typically possess the majority of discoverable information. As a result, the cost and burden for defendants to respond to document discovery will always greatly exceed that of plaintiffs. With that dynamic in mind, defendants should be strategically mindful, throughout discovery, of the overall scope and breadth of the requests they serve on plaintiff, whether with respect to time period, number of requests, metadata requirements, search terms, or any other burden imposed. Any procedural or substantive standards or precedents set by way of defendants' document requests (e.g., choosing a broad "relevant time period," establishing onerous requirements for the production of metadata, etc.) will likely be used as a yardstick in assessing any challenge to the reasonableness of plaintiffs' document requests. Counsel should be thoughtful of the downstream implications of any unnecessary burden wrought by defendants' document requests. Note that this form assumes that the RFPs are being served on behalf of at least one business entity defendant. Section 11 claims may be brought in either federal or state court. Cyan, Inc. v. Beaver County Employees Retirement Fund, 138 S. Ct. 1061, 1066 (2018). These requests are drafted for use in federal court, but they could also be used for actions filed in state court because Section 11 claims have the same elements regardless of forum. If using this form for an action in state court, you should consult the applicable rules for that state regarding discovery and class certification and adjust the requests in this form accordingly. However, with the increased use and enforcement of forum-selection clauses requiring Section 11 cases to be brought in federal court, there were just five state court filings in 2024 with claims arising under the Securities Act of 1933 (i.e., potentially including claims brought under Section 11, 12, and 15), as opposed to 52 cases in 2019, per Cornerstone Research. See Cornerstone Research, Securities Class Action Filings, 2024 Year in Review (2025) (see Figure 16: State 1933 Act Filings by State 2013–2024, citing Cornerstone Research and Stanford Law School Securities Class Action Clearinghouse; Bloomberg Law; ISS' SCAS). Practitioners should also note that there is a split of authority across state courts regarding whether the discovery stay imposed by the Private Securities Litigation Reform Act (PSLRA) applies to Section 11 claims asserted in state court. See, e.g. Switzer v. Hambrecht & Co., L.L.C., 2018 Cal. Super. LEXIS 6583, at *1 (Cal. Super. Sep. 19, 2018) (denying defendants motion to stay discovery, finding "that the PSLRA's provision for a discovery stay is of a procedural nature, and therefore only applies to actions filed in federal court, not state court."). In 2021, the Supreme Court agreed to resolve this issue of first impression at the federal appellate level when it granted certiorari in Pivotal Software, Inc. v. Superior Court of California, No. 20-1541. However, the case settled before the Supreme Court could make a ruling. Therefore, whether the PSLRA discovery stay applies to Section 11 claims in state court remains unsettled. But see Camelot Event Driven Fund v. Morgan Stanley & Co. LLC, 221 A.D.3d 403, 403 (App. Div. 1st Dept.) (resolving a split among trial courts in New York's First Department and holding that the PSLRA discovery stay applies to state court actions during the pendency of any motion to dismiss). For another template related to discovery in a Section 11 action, see Section 11 Interrogatories (Defendant to Plaintiff). For more information relating to Section 11 and the Securities Act more broadly, see Section 11 Elements and Defenses under the Securities Act, Defense Strategies under the Securities Act, Securities Litigation under the Private Securities Litigation Reform Act (PSLRA) and Liability for Securities Offerings Checklist. For information on requests for production of documents generally, see Document Requests: Drafting and Serving RFPs (Federal) and Document Requests: Initial Considerations (Federal).