The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where “just and practicable” — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. Over the next few weeks as part of Discovery Advocate’s First Five Questions series, we will examine some of the initial and immediate considerations expressed within and surrounding the rules and applies them to practice, regarding the Rules’ application to Proportionality (Rule 26); Early Case Assessment (Rules 4, 16, 26, and 34); Preservation (Rule 37); and Objections (Rule 34). A version of these posts were published as “Twenty Questions: A Practical Guide to the Amended Federal Rules of Civil Procedure” for the 2015 Georgetown Advanced E-Discovery Institute.
Rule 34 Objections
Like the other amendments to the Federal Rules of Civil Procedure, the amendments to Rule 34 seek to expedite the discovery process and encourage parties to communicate earlier about the availability of requested documents and any difficulties or restrictions on their production. In particular, pursuant to the amendments, objections to Rule 34 requests for production must be specific. For example, if a request is overly broad because it calls for all documents relating to a particular subject, such as financial records, counsel should be prepared to discuss the various financial records and which ones should be produced in the matter. Given this, counsel should ask themselves the following questions when responding and objecting to a Rule 34 request.
- Does your client have any documents that are responsive to the Rule 34 request?
Where the answer is “No,” counsel is only required to respond that the party does not have any documents that are responsive to the request. If “Yes,” the practitioner should determine the types and breadth of the documents and then whether and how to object to the request, being prepared to defend these objections.
While the amended rules, including Rule 34, encourage cooperation and communication between the parties, they still do not require parties to perform the other side’s discovery work for them. So, to the extent opposing counsel’s request overlooked a specific category of relevant documents, a party is not obligated under Rule 34 to produce them or point out the omission.
- Does your client have any specific objections to the Rule 34 request?
This question is critical to answer because, unlike past practice, the amended rule does not allow generic, boilerplate objections such as: “This request is overly broad, vague, ambiguous, and unduly burdensome. It also seeks production of documents protected by the attorney-client privilege, attorney work product doctrine, and other applicable privileges. To the extent not objected to, any relevant documents will be produced.” Instead, objections must be specific by explaining the reasons for such objections after a reasonable inquiry was made. Remember, this new requirement is intended to expedite the discovery process by prohibiting non-specific objections, which have been viewed by courts as worthless and dilatory. So, under the amended rules, courts will disfavor generic objections and may view them as a waiver of objections altogether.
- Is your client withholding anything from the production on the basis of those specific objections?
When making an objection, bear in mind that it should communicate to the other side whether any documents have been excluded from the production. For example, the Advisory Committee on the Rules of Civil Procedure indicated that identifying the scope of the search conducted by date range or sources would be a sufficiently specific objection. Previously acceptable objections to Rule 33 interrogatories also provide guidance because they already required objecting with specificity. At bottom, the objections should advance discovery and not obfuscate evidence or issues. In this respect, the specificity requirement in Rule 34 should be viewed in conjunction with the cooperation requirement in Rule 1 and the proportionality requirement in Rule 26. Operating together, all three encourage communication between the parties and streamline the discovery process.
- Have you previously discussed the specific objections with opposing counsel?
While nothing in Rule 34 specifically requires a party to discuss its specific objections with opposing counsel in advance of responding to the request, such communication may be advisable because the balance of the Rule amendments encourage cooperation between the parties to identify the relevant universe of documents. This is especially true where the Rule 34 request is made in advance of the Rule 26(f) conference. In that event, discussing the request and any specific objections is a good way to promote an open discovery dialogue between or among the parties.
- Is your client preserving the documents you withheld from the production?
Objecting to the production of documents does not change a party’s preservation obligations; therefore, the party should not release, destroy, or otherwise alter documents sought by a Rule 34 request unless they are clearly not relevant to the dispute. Even in that limited instance, a conversation with opposing counsel may be warranted to explain why those documents are irrelevant, and to secure opposing counsel’s agreement to withdraw or waive their request for production of those documents.