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Monday, May 04, 2015

Welcome Change to Fed. R. Civ. P. 34 (Document Production)

Last Wednesday, the Supreme Court transmitted to Congress amendments to the Federal Rules of Civil Procedure, which will go into effect on December 1, 2015, absent Congressional action. There are a few goodies in these proposed amendments. But the one that makes me happiest is a sorely needed addition to Rule 34, governing requests for production of documents. The new rule will require responding parties to be clearer about the extent to which they withhold documents on the basis of an asserted objection.

The current version of the rule, of course, permits the responding party to object to a document request in lieu of producing responsive documents. See Fed. R. Civ. P. 34(b) (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”). Thus, if the request asks for copies of all communications between the responding party and her lawyer, the responding party would naturally assert a privilege objection, and that would be the end of it.  

The problem is that not all objectionable requests are so cut and dry. Objections with expansive time-frames, for example, may be too broad, but that overbreadth should not be fatal to the entire request—only to the overly broad portion. The current rule recognizes these situations and instructs that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” See Fed. R. Civ. P. 34(c).

Under the current rule, it’s often unclear whether a party who objects, but nevertheless produces some responsive documents, is withholding other documents on the strength of the objection. Let's say the request seeks records going back ten years.  The responding party objects to the time-frame and then produces records going back, say, three years.  Does that mean the responding party has withheld seven years of records? Or does it simply mean that the responding party had nothing more to produce?

An amendment to Rule 34(c) will require parties to answer that question from the outset. The first sentence of the amended rule will read: "An objection must state whether any responsive materials are being withheld on the basis of that objection." Simple. With one sentence, the rule will now require parties to be more candid about the practical significance of their objections.

I welcome this change. It will reduce some of the discovery gamesmanship and the related need for time-consuming  correspondence seeking clarification on the extent to which a party's objections served as bases for withholding documents. Bravo to the Committee on Rules of Practice and Procedure!

Unfortunately, there is no corresponding amendment to Rule 33, governing interrogatories—where responding parties also take advantage of objections to conceal whether they are withholding information. A change there would be welcome, too.  

Posted by Andrew S. Pollis on May 4, 2015 at 11:00 AM in Civil Procedure | Permalink


I submitted a discovery request on a speeding ticket only to be told by the judge that a discovery request was not valid because a traffic violation is a civil matter even though this case was heard in district court. It seems like it is becoming more difficult to defend yourself even by playing within the rules when a judge can decide the rules don't apply.

Posted by: Stephen Klein | Jul 8, 2015 12:21:24 PM

Fair enough, although I think Option 2 depends on the nature of the objection being asserted.

If the objection is "I object on the grounds that the request calls for documents that are outside the scope of the case [let's say motion to dismiss briefing eliminated any claims based on documents older than 2012]" then yeah, I think New Rule 34 requires the responding party to say that up front, and say that they will be withholding any documents older than 2012.

However, if the objection is something like "I object on the basis that the request appears to call for the production of attorney client privileged material," then how is the responder to know (1) whether such privileged documents exist; (2) whether the responding party would choose to assert the privilege over those documents at all (for instance, if it reviewed the documents and made the determination that it wished to use such docs at trial, it would almost always needed to have produced them). There could be other examples.

Even so, I don't know how New Rule 34 makes any sense when it says that the responding party must state whether any documents "are being withheld," present-tense. Essentially all reviews and productions happen after the initial responses and objections are filed. And there is no requirement in the Rules that a search and review be completed upon the making of initial responses and objections (that wouldn't even make sense - it is literally not possible in most cases).

In practice, I think what will happen is that parties will continue to disclose as little as possible in their initial responses and objections, the requesting party will make a motion to compel, presumably coupled with some sort of motion for "failure to adequately adhere to the procedural requirements of New Rule 34." That latter motion is really form over substance, and I can't imagine most magistrates caring about that sort of stuff. They want the docs produced and the haggling to stop.

Posted by: Skeptic | May 5, 2015 11:23:47 AM

Again, if I were a judge, I would not permit a responding party to defer taking a position. It's one thing to say, "I haven't quite completed my document review, and I'll supplement this production when I've done so." It's another thing to say, "I haven't quite completed my document review, and I'll decide once I'm done if I'm going to stand on my objection."

Posted by: Andrew Pollis | May 4, 2015 6:46:02 PM

I guess it depends. One could imagine a response that complies with the letter and spirit of (what I still contest is a flawed) New Rule 34:

"I object on the basis that the request is overbroad. We will search for and produce responsive, non-privileged documents created between 2012 and 2014. As to whether we are withholding any documents that may exist that we contest are outside the permissible scope of the request (i.e. documents created after 2014), we will supplement this response when our search, review, and production is complete."

The problem is still that I don't think the requesting party can do anything if, at the time they get the above response and objection, the objecting party's review and production isnt' complete. A motion to compel would, I think, be unripe, wouldn't it? I suppose judges could rule on whether the stated grounds for the objection by the objecting party is permissible at all. I'd be hesitant to do that if I were a judge if I didn't know whether any "eligible" documents even existed in the first place.

Posted by: Skeptic | May 4, 2015 5:23:21 PM

I hope you're wrong, Skeptic. I guess it depends on the judicial response. If I were a judge, I would wield my power to require parties to honor the spirit of this amendment. But...alas...I'm not a judge.

Posted by: Andrew Pollis | May 4, 2015 3:12:47 PM

The new rule is not so simple as you are suggesting. Almost always, the responding party is promulgating its responses and objections before having conducted a search and review. So it cannot say whether it is withholding any documents on the basis that the request is objectionable, or indeed whether any such documents exist or are currently within its possession, custody, or control.

What will likely happen is that a party will respond and object with some version of "this request appears [overbroad] and to the extent any such documents exist that would be responsive to non-objectionable portion of the request (which i may or may not define for you at this time or any other), which we do not concede, they will be produced. We will amend this response at a later time upon completion of our search and review."

And then there will be letter campaigning and gamesmanship from there.

Many of the comments on the proposed new rule raised this potential problem. It's just not clear the rule really helps front any of the issues parties confront. It just kicks them to a later time in the litigation.

Posted by: Skeptic | May 4, 2015 3:10:00 PM

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