January 01, 2018
A Framework for Mutual Compliance with Amended Rule 34
Paul Weiner
In a recent ruling over a discovery dispute, a New York federal judge, the Honorable Andrew J. Peck, admonished lawyers representing responding parties to pay closer heed to their obligations under the amendments to Rule 34 of the Federal Rules implemented more than a year ago:
It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:
State grounds for objections with specificity;
An objection must state whether any responsive materials are being withheld on the basis of that objection; and
Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.
Most lawyers who have not changed their “form file” violate one or more (and often all three) of these changes.
Fischer v. Forrest, No. 14 Civ. 1304, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017).
In another ruling over a discovery dispute that was also issued after the amendments to Rule 34, a Louisiana federal judge, the Honorable Karen L. Hayes, reinforced the obligations on lawyers representing requesting parties under Rule 34 of the Federal Rules, obligations that did not change in the 2015 rule amendments:
Defendants contend that Plaintiff’s request does not meet the reasonable particularity standard in Rule 34. Rule 34(b)(1)(A) requires a request for production to describe the sought after items with “reasonable particularity.”
The Court agrees that Plaintiff’s request for “all documents responsive to Plaintiff’s First Set of Interrogatories directed to Defendants”] is overly broad and does not meet Rule 34’s reasonable particularity standard.
Vailes v. Rapides Par. Sch. Bd., No. 15-429, 2016 U.S. Dist. LEXIS 22340 (W.D. La. Feb. 22, 2016) (denying motion to compel).
As a father of one-and-a-half– and three-and-a-half-year-old daughters, I currently see the world through the lens of their young eyes. And a recent experience with my three-and-a-half-year-old reminded me of both judges’ wise admonishments—and provides me with a helpful framework for analyzing Rule 34.
Every Saturday, I take my three-and-a-half-year-old daughter to ballet class. Given my hectic travel schedule, I cherish this time with her. To maximize it, after class we always go to the local bakery to get a doughnut, where we spend time talking about her week. (OK, to be fair, I’m the primary driver of getting doughnuts.)
Two weeks ago, after class, while I was strapping my daughter into her car seat, she asked me for “my toys.” Anyone with a young child knows there are thousands of toys she could have been referring to by her very vague and unspecific—and quite overbroad—request.
Despite the vagaries, I attempted mightily and in good faith to comply. Because my daughter’s favorite toy is Elmo, I handed her Elmo. She responded: “I don’t want Elmo. I want my toys, please.”
Her next favorite is Princess Anna, so I found it in the back of the car and handed it to my daughter. “No, I don’t want Princess Anna. I want my toys, please.” Next was a Caillou cell phone, then a SpongeBob windup toy, and then Hello Kitty. Her responses grew more agitated, and the polite “please” was dropped: “Daddy, I don’t want those. I want my toys.”
Still eager to comply, I kept going. Dora the Explorer flashlight. “No.” Mr. Snuffleupagus keychain. “No.” A bag of LEGOs we keep in the car for long trips. “NO!”
By this point, she was in a full-blown tantrum: “I WANT MY TOYS!”
In turn, I was annoyed, not only at how she was behaving but also at the overall situation, as I desperately wanted to give my daughter what she was asking for and the last thing I wanted to do was upset her during our weekly one-on-one time together.
After this went on for about five minutes, my daughter finally blurted out, “I want my Magna-Tile toys to build a castle!!!” Knowing the Magna-Tiles were not in the car but instead were at home (yet without telling my daughter that information), I quickly got in the car to drive to the bakery so we could get home and I could give her the Magna-Tiles to play with.
Instead of it being the usual highlight of our outing, getting our doughnuts was not a pleasant experience. My daughter was crying, I was upset, and we left the bakery before we could order.
When we finally arrived home, I presented my daughter with a mountain of Magna-Tiles, hoping she would be satisfied now that she finally had what she wanted. She was not.
She was so upset with me for not giving her the Magna-Tiles sooner, she was screaming, “Daddy, you did not give me my Magna-Tiles when I asked for them.” I was responding, “I didn’t know that’s what you wanted, but can’t we play with them now that you have them?”
You can probably guess what happened next. My wife had to intervene. (As everyone knows, it’s never good to have “mommy” intervene in this fashion; instead, it’s better to try to work it out before it gets to that point.)
Flash forward to the next week.
After class, while being strapped into her car seat, my daughter made a specific request: “Daddy, I want to play with my Magna-Tiles to build a castle.”
Armed with those specifics, I could respond specifically, by noting we did not have Magna-Tiles in the car, by explaining where they were located (at home) and what would be required to get them (driving home with a stop on the way at the doughnut shop), and by setting a time frame for her to play with them:
We don’t have Magna-Tiles in the car, but we have cases of them at home. You can play with them in about 20 minutes, after we get our doughnuts.
Armed with specifics from both of us, we also could “confer” (most courts have local rules that require the parties confer to attempt to resolve discovery disputes before formally raising them with the court) on the all-important doughnut:
If you want to play with them more quickly, we can go straight home. Or we could get our doughnuts to go. Or we could eat the doughnuts at the bakery and then go home and play with Magna-Tiles, but that will take longer.
Based on this dialogue, we reached an acceptable agreement: We’d get our doughnuts to go and then quickly head home to play with the Magna-Tiles.
Ten minutes later, that’s where we were: At home, excitedly building a Magna-Tile castle, while happily eating doughnuts.
And best of all, instead of having to angrily intervene, mommy smiled when looking down on this scene.
Discovery is a two-way street. All parties on both sides of the lawsuit have obligations under Rule 34 and need to change their discovery “form files” to ensure
- that a requesting party describes sought-after items with “reasonable particularity,” as Federal Rule of Civil Procedure 34(b)(1)(A) provides; and
- that in response to a properly framed request (see the 2015 advisory committee note to Rule 34), a responding party states “with specificity the grounds for objecting,” identifies “whether any responsive materials are being withheld on the basis of that objection,” and completes its production “no later than the time for inspection specified in the request or another reasonable time specified in the response.”
Fed. R. Civ. P. 34(b)(2)(B), (C).
I hope the lessons my daughter and I learned around ballet, Magna-Tiles, and doughnuts can serve as a helpful framework for both requesting and responding parties to successfully comply with amended Rule 34.