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November 24, 2015 Practice Points

Four Things Every Practitioner Needs to Know About New FRCP 34

The amendments to Federal Rule of Civil Procedure 34 go into effect on December 1, 2015.

By David Konkel

The amendments to Federal Rule of Civil Procedure 34 go into effect on December 1, 2015 and place a number of new requirements on a party responding to requests for production. These amendments address a number of problems in discovery practice, particularly objections that provide little, if any, information about the bases or consequences of those objections. The Advisory Committee Notes state that the amendments aim to “reduc[e] the potential to impose unreasonable burdens by objections to requests to produce.” To avoid running afoul of amended Rule 34, practitioners responding to document requests should consider each of the following.

1. Be Specific

In response to oft-criticized boilerplate objections, amended Rule 34(b)(2)(B) requires that a party must “state with specificity the grounds for objection.” Gone are the days of objecting to a document request as “vague and ambiguous,” “overbroad,” or “unduly burdensome” without further explanation. According to the Committee Notes, the new provision adopts the language from Rule 33(b)(4) and “eliminat[es] any doubt that less specific objections might be suitable under Rule 34.” As a result, an “overbroad” objection that ignores that “some part of the request is appropriate” is inadequate. That is, a responding party may now be required to explain with specificity what is and is not overbroad about a request.

2. Be Prepared

Amended Rule 34(b)(2)(B) further addresses the common practice of providing copies of materials rather than permitting inspection. The response must now state that copies will be produced in lieu of 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.” Previously, a party might respond to a request by stating that documents would be produced without specifying a date for that production. The amended rule prohibits such an open-ended response. Because the amended rule and the Committee Notes are silent as to what constitutes a “reasonable time,” it will be left to the parties and, inevitably, the courts to decide. Practitioners who litigate document-heavy cases must be prepared to collect and review documents quickly, which may increase the early costs of discovery.

3. Be Frank

Paired with the specificity and timing requirements in amended Rule 34(b)(2)(B) is amended Rule 34(b)(2)(C)’s requirement to be frank about withholding documents based on objections. Seeking to reduce confusion and uncertainty, the amended rule requires that an objection must “state whether any responsive materials are being withheld on the basis of that objection.” Because the amended rule does not require the equivalent of a privilege log, this requirement is not as burdensome as it may appear. A party satisfies the amended rule by explaining the limitations of the search for responsive and relevant materials. Nevertheless, practitioners should be ready to engage in “an informed discussion of the objection” when documents have been withheld.

4. Be Timely

Though somewhat overshadowed by the other changes to the rule, amended Rule 34 also recognizes the change to Rule 26(d)(2) that permits a party to “deliver” document requests to a party before the Rule 26(f) conference, but more than 21 days after service of the summons and complaint. With the amendment to Rule 26(d)(2), practitioners will need to pay close attention when calculating the deadlines for a document request delivered before the Rule 26(f) conference. Amended Rule 34(b)(2)(A) clarifies that the “delivery” of a request does not start the time to respond if delivered prior to the Rule 26(f) conference. Rather, the party must respond to a document request delivered prior to the Rule 26(f) conference within 30 days of the Rule 26(f) conference.

— David Konkel, Godfrey & Kahn, S.C., Milwaukee, WI

Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).