• Requests for Production Under the 2015 Amendments to the Federal Rules
  • July 29, 2016 | Author: Jonathan T. Tan
  • Law Firm: Willcox & Savage, P.C. - Norfolk Office
  • On December 1, 2015, much-touted amendments to the Federal Rules of Civil Procedure took effect. In a previous newsletter, we explained a few of the significant amendments (sanctions for failing to preserve electronic evidence and proportionality) to the Federal Rules that the Judicial Conference Advisory Committee on Civil Rules (the “Committee”) had proposed and the United States Supreme Court had approved. By its silence, Congress acquiesced to those amendments, and they took effect as scheduled. Overall, the amendments to the Federal Rules embody a desire to reduce the costs of litigation—especially the expense of omnipresent and expanding e-discovery—and to promote the more speedy resolution of civil cases. This article focuses on two significant amendments to the Federal Rules regarding Rule 34 requests for production. First, a revision to Rule 26 now permits parties to propound requests for production prior to the Rule 26(f) discovery planning conference. Second, the revision to Rule 34 heightens a party’s obligations when responding to Rule 34 requests, including requiring specificity in any objection, and allows a party to produce documents and ESI responsive to such requests within a “reasonable time.”

    Rule 26: Early Requests for Production

    The amendments to Rule 26, among other things, alter when a party may propound requests for production under Rule 34. While lawyers and commentators have focused most of their attention on the proportionality amendment to Rule 26 (rightfully so), the Federal Rules now permit a party to send requests for production prior to the Rule 26(f) conference. The general rule—subject to a few exceptions—under Rule 26(d) remains as before: “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) . . . .” But the Supreme Court and Congress have approved an additional exception for requests for production. More than twenty-one days after service of process, a party may now serve Rule 34 requests for production on a plaintiff or a defendant who has been served with process.

    Rule 34 requests are the predominant method for obtaining ESI from a party opponent. Consequently, by allowing early Rule 34 requests, the amended Federal Rules push forward the beginning of e-discovery.

    Significantly, a party served with an early request need not respond until twenty-one days after the Rule 26(f) conference. Thus, while the amended rule permits a party to issue an early request, it does not shorten the period in which the party must respond thereto. Indeed, a party that has received an early Rule 34 request will have the same period of time to respond to the request as if it was served immediately after the Rule 26(f) conference. As an aside, for those familiar with Eastern District of Virginia Local Civil Rule 26(C), objections likely need not be filed until after the Rule 26(f) conference. Under that local rule, a party must serve its objections to a Rule 34 request within fifteen days of service or, where applicable, fifteen days after removal or transfer. The early Rule 34 request is "considered to have been served at the first Rule 26(f) conference." A reading of the plain language of both rules as to "service," and early Rule 34 requests being "served" as of the Rule 26(f) conference, suggests that, in the Eastern District of Virginia, a party will not be required to object to an early Rule 34 request any earlier than fifteen days after the Rule 26(f) conference.

    Given that no response is required until after the Rule 26(f) conference, why do early Rule 34 requests matter? Parties will now have to prepare for discovery, especially discovery of electronically stored information, even earlier than before the amendments. Whether lawyers and their clients like it or not, formal e-discovery now begins twenty-one days after service of process. For proactive parties, early Rule 34 requests can frame the issues for a serious and comprehensive Rule 26(f) conference that will cut short potential discovery disputes before they arise. However, early Rule 34 requests also require weighing the benefits of resolving potential issues early, with the possible advantage to an opposing party of a longer period of time to formulate objections. In certain instances, an early Rule 34 request may simply provide an opposing party with more time to frame its objections to the request and increase the contentiousness and cost of resolving the disputed issue. Whether to use early Rule 34 requests will depend on the facts of each case. Early Rule 34 requests are just another tool that must be considered while formulating a discovery strategy. By adding another method of discovery, the amendment to Rule 26(d) simply magnifies the importance (and benefits) of developing early a tailored e-discovery strategy.

    Rule 34: Specificity in Objections

    Proportionality has been the buzzword of this most recent series of amendments to the Federal Rules. Often overlooked in the discussion surrounding the 2015 amendments are the amendments to Rule 34.

    Rule 34 now requires that any objection be made with specificity as to each item or category set forth in a request for production. Rule 34(B) provides:

    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 amendments to Rule 34(b), thus, establish that boilerplate objections that a request is overbroad, vague, and unduly burdensome do not suffice without an explanation of the specific reason why the request is objectionable. Boilerplate objections were considered improper by many courts prior to the 2015 amendments, but the revisions erase all doubt: boilerplate objections that do not state the specific reason why the request is objectionable are inadequate. See, e.g., Wilson v. Wal-Mart Stores, Inc., No. 2:15-CV-1791-RCJ-VCF, 2016 WL 526225, at *7 (D. Nev. Feb. 9, 2016) (holding that a boilerplate burdensomeness objection was inadequate because it “fail[ed]t o explain how responding to [the request] [was] unduly burdensome.”).

    This is not to say that a party may no longer object to, for example, over-breadth. However, if the request is appropriate in some form, the responding party must identify the scope of the request that is not objectionable. In other words, an objection should specify a non-objectionable alternative. The Committee has provided an example apropos of this newsletter. When faced with an overly broad request, “A statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources”—in the Committee’s view—illustrates a suitable response.

    Relatedly, under Rule 34, if a party produces any documents subject to an objection, it must state whether it is withholding other documents responsive to the request. Before the amendments, many lawyers’ preferred method of drafting Rule 34 responses was to recite a grocery list of objections and then state that, notwithstanding, “please see attached documents.” The proponent of the request was then left to ponder whether any other documents responsive to the request existed. Now, Rule 34(b)(2)(C) requires that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” Additionally, “[a]n objection to part of a request must specify the part and permit inspection of the rest.” Together, these changes should alert the opposing party to the existence of additional documents, in the hope that this will, in the words of the Committee, “facilitate an informed discussion of the objection.” The Advisory Committee Notes clarify that a “detailed description or log of all documents withheld” need not be provided. Courts already have begun implementing these rules. For example, in R. Fellen, Inc. v. Rehabcare Group, Inc., a court ordered a party that had produced documents subject to objections to comply with Rule 34(b)(2)(C) by serving further responses addressing whether any responsive materials were being withheld based on the objections. CASE NO. 1:14-CV-2081-DAD-SMS, 2016 WL 1224064, at *3 (E.D. Cal. Mar. 29, 2016).

    Finally, the amendments to Rule 34 confirm that a usual method of responding to Rule 34 requests—stating that responsive documents and ESI will be produced, rather than permitting inspection thereof—is permissible, but portend discovery disputes over the timeliness of production. The amended Rule expressly establishes that “[t]he responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection.” In view of the prevalence of rolling production in cases involving significant volumes of documents, the Advisory Committee Notes explain that “[w]hen it is necessary to make the production in stages the response should specify the beginning and end dates of the production.”

    Significantly, as to timing, the amendments provide that the responding party must produce the documents and ESI within the time specified in the request or “another reasonable time specified in the response.” Thus, a party need not respond to a request for production within the timeline imposed by the proponent, as long as it responds within a “reasonable time.” By incorporating a “reasonable time” standard, the amendments to Rule 34 undoubtedly invite discovery disputes about the timeline for production. It is not difficult to imagine how a responding party’s view of how much time is “reasonable” to allow it to produce a legion of documents might differ from that of the proponent of the request. The courts have not yet parsed what qualifies as a “reasonable time,” or the factors to consider in making such an assessment. Of note, Rule 45(d)(3)(A), which involves subpoenas to non-parties, includes as a basis for quashing a subpoena the failure to “allow a reasonable time to comply.” Because of the similar language and context of Rules 34 and 45, existing Rule 45 jurisprudence might serve as a body of readymade law from which courts might choose to draw to flesh out what qualifies as a “reasonable time” under Rule 34. To date, they have not had occasion to do so.

    Conclusion


    Although the 2015 amendments to the Federal Rules affect all litigants in federal courts, they are of particular significance in the context of e-discovery. As part of an effort to reduce the time in which cases stagnate at the beginning of litigation, Rule 26(d) now permits a party to serve early requests for production on another party. Responses are not required until after the Rule 26(f) conference, but early Rule 34 requests will require attorneys and their clients to begin tackling e-discovery issues from the onset. A party might not issue, or have to respond to, early requests for production in every case, but the availability of early Rule 34 requests adds a strategic consideration early in litigation. A further amendment requires a party responding to a Rule 34 request to state its objections thereto with specificity. Even prior to the amendments, many courts routinely overruled boilerplate objections. The amendment codifies this rule and, thus, compels objecting parties to perform the work necessary to substantiate their objections before raising them, rather than waiting to provide specifics in response to a motion to compel. Importantly, if a request is objectionable only in part, Rule 34 now places on the responding party the onus of identifying what part of the request is non-objectionable, producing the documents and ESI responsive to the non-objectionable portion, and stating whether the responding party is withholding any documents or ESI subject to its objection. In addition, Rule 34 now permits a party to produce copies of documents within a “reasonable time specified in the response.” Courts have not yet clarified what qualifies as a “reasonable time.” This may be the next major battleground in e-discovery.

    Critical Takeaways from the Revisions Regarding Requests for Production:
    • Rule 26(f) now permits parties to propound requests for production prior to the Rule 26(f) conference, though the time to object and respond does not begin to run until such conference.
    • Objections to requests for production must be made with specificity. If a request is objectionable only in part, the objecting party must specify the scope of the request that is objectionable and produce the documents and ESI responsive to the non-objectionable portion.
    • A party must state whether it is withholding any responsive documents or ESI subject to its objections to a request for production.
    • A party may produce copies of documents and ESI in lieu of permitting inspection, and it need not complete its production within the time specified by the proponent of the request, if it does so within a “reasonable time specified in the response.”