FRCP &E-Discovery: The Layman's Guide

Rule 34

Rule 34 is directly tied to Rule 26(d)(2), which sets down the timing for a discovery request, effectively starting the race to find the facts of a case, and in turn giving the parties insight into what their litigation strategy might be going into the meet-and-confer conference. However, just because you get there first doesn’t mean you’ll win. Especially if you arrive unprepared.

Rule 34: Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

1. In General. A party may serve on any other party a request within the scope of Rule 26(b):
1. to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control
1. must describe with reasonable particularity each item or category of items to be inspected;
2. Procedure.
1. Contents of the Request. The request:
1. any designated documents or electronically stored information
2. must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
3. may specify the form or forms in which electronically stored information is to be produced.
2. Responses and Objections.
1. Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
2. Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response
3. Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

With the recent e-discovery amendments, a change in Rule 26(d)(2) states that either party can issue a Rule 34 request for documents 21 days after the service of summons and complaint, which allows each side a glimpse into the relevant information as soon as possible.

2015 FRCP Amendments Require Specificity

But, the new amendment to Rule 34 states that objections must filed “with specificity.” And yet, most attorneys are still using boilerplate responses, putting them in violation of the rule. So even if they respond early, if that response is broad, it doesn’t matter.

There are a few ways legal teams care ensure compliance with Rule 34. One is to throw out old “form files.” Form files or generic, boilerplate templates will no longer be accepted by the courts when responding to discovery requests.

Slow Down and Actually Read the Request

Another key step, which may seem obvious, but is often ignored, is to carefully read and ensure you understand what the discovery request is asking. If you have questions, pick up the phone and call opposing counsel.

Clarify with Your Team

It’s also important to get feedback from your legal team. Work with your team to fully understand if the discovery request is asking for relevant information and that the amount of data is proportional to the needs of the case.

Be Specific if You Must Object

Finally, and probably most importantly, if you are going to object, give a specific reason why you’re objecting that includes a factually detailed response describing how it’s unduly burdensome. To prevent yourself from using boilerplate objections, you need more information about the case sooner, so you can specify why you’re objecting. To accomplish this, look into ways to update and accelerate your ECA process in order to get case information sooner and metrics for justifying burden.

Before the 2015 amendments, the defendant did not typically consider doing any serious discovery until after the Rule 26(f) meet and confer meeting, which is generally held 21 days before a Rule 16 scheduling order is due, or approximately 69 days after service of the complaint.  The rules had forbidden any discovery until after the meeting.  The thinking was that the parties needed the Rule 26(f) meeting to talk about the issues and identify what was needed in discovery.

Amended Rule 26(d)(2) now permits the plaintiff to submit Rule 34 requests only 21 days after service of summons and complaint, or 69 days earlier than previously permitted.  It is true that the defendant is not required to respond to the Rule 34 request before the Rule 26(f) meeting; the response is due 30 days after the Rule 26(f) meeting.  But the amendments are designed to accelerate the discovery process and prompt lawyers to be prepared at the Rule 26(f) meeting to address specific discovery issues, after reviewing initial exchanges. “This relaxation of the discovery moratorium,” as stated in the Committee Note, “is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests. The opportunity for advance scrutiny of requests delivered before the Rule 26(f) conference should not affect a decision whether to allow additional time to respond.”

Key Takeaway

These timing changes make a lot of sense in garden-variety cases, in which modest discovery was being delayed unnecessarily. And, in fact, many lawyers had ignored the rule and had informally begun discovery before the Rule 26(f) meeting.  But the changes have an enormous impact on complex and heavy-ESI cases and place a significant burden on the defendant in these cases to move expeditiously.  Before 2015, the defendant had several months to act on discovery. Time that was used to learn the case and begin planning for comprehensive discovery, which often involved multiple locations, custodians, and systems. Under the 2015 amendments, defendants have only 21 days after being served to begin working on discovery. The message is clear that lawyers must be prepared to move on Day 1.

• Judge Peck to Attorneys – Wake Up and Read Rule 34 by Ted Jacobs & Nicole Sterling at BakerHostetler - analysis of the Fischer v. Forrest case in which Judge Peck took attorneys to task for not following the three basic things discovery requests must do, per FRCP Rule 34.
• Federal E-Discovery: Courts Warn of Sanctions For Future Rule 34 Violations by H. Christopher Boehning & Daniel J. Toal at Paul|Weiss - discussion of two recent federal district court decisions that threaten sanctions on future discovery requests that fail to comply with Rule 34.