Time to be Specific—Amendment to Rule 34(b)(2)FRCP
POSTED ON October 23

As you know from my September 16th post, I recently made a presentation on various amendments to the Federal Rules of Civil Procedure affecting eDiscovery. In this post, I will expand on aspect of one of them—Rule 34.

In litigation, parties sometimes engage in discovery practices designed to “hide the ball.” In the latest round of amendments to the Federal Rules of Civil Procedure, effective this December 1st, changes to Rule 34 take aim at a practice that can be used to obscure a party’s production of documents.

Federal Rule of Civil Procedure 34 controls requests for document production. The current Rule 34(b)(2)(B) requires a responding party to either state that the inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The Rule also requires documents to be produced in a manner by which the requesting party can reasonably locate the responsive documents. Williams v. Taser Int’l, Inc., Case No. 1:06-CV-0051-RWS, 2006 WL 1835437 (N.D. Ga. June 30, 2006). This requirement prevents the “needle in the haystack” approach to producing documents, such as hiding responsive documents amongst large numbers of nonresponsive items. It also prohibits a party from simply producing a stack of “undifferentiated documents” to the requesting party. Armor Screen Corp. v. Storm Catcher, Inc., Case No. 07-81091, 2009 WL 291160, at *2 (S.D. Fla. 2009).

But, as it currently stands, Rule 34 does not prevent another tactic frequently employed by responding parties: objecting broadly to requests for production while also producing some documents. This tactic leaves the requesting party guessing as to whether relevant information was withheld on the basis of the objections.

The new version of Rule 34 prohibits this practice. Under the amended Rule, a responding party 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. FRCP 34(b)(2)(B) (emphasis added). An objection must also “state whether any responsive materials are being withheld on the basis of that objection.” FRCP 34(b)(2)(C). Furthermore, the responding party may state that it will “produce copies of documents or of electronically stored information instead of permitting inspection,” but must provide a time frame for production of those documents. FRCP 34(b)(2)(B) (“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.”).

What do these changes mean? In the simplest terms, the changes to Rule 34 will make the responding party provide more information to the requesting party. As an initial matter, a responding party must be more prepared, thoughtful, and careful in responding to discovery requests. The responding party must also indicate if documents were withheld and, if so, state the applicable objection. Further, a responding party can no longer vaguely respond that documents will be produced at an undetermined time. Rather, that party must be prepared to provide a specific and reasonable time frame in which the documents will be produced. See Comment to proposed Rule 34. Where documents are produced in stages, the response must also specify beginning and end dates for production. Id.

The amount of specificity required to satisfy the Rule is likely to be a source of confusion and contention. These amendments will not eliminate Rule 26(f) meetings, but they might just make such meetings more productive. To avoid potential Rule 34 issues down the road, parties should consider using the 26(f) meeting as an opportunity to reach agreement regarding the confines and scope of searches and production. After all, the amendments’ stated goal is to facilitate an informed discussion of objections to document requests. Id. Parties should anticipate having to explain their objections to the other party, and to involve technical staff to develop a production timetable.

Ultimately, the amendments to Rule 34 might not dramatically alter the landscape of discovery and document production. But they do have the potential to open the door to increased cooperation among parties and a more straightforward approach to document production. Best not to “hide the ball”!

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.