According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld.
In Rowan v. Sunflower Elec. Power Corp., 2016 U.S. Dist. LEXIS 91109 (D. Kan. July 13, 2016) (Case No. 15-cv-9227), a defendant, in response to certain requests for the production of documents, did not explicitly state whether any documents were being withheld pursuant to the defendant’s objections to those discovery requests nor did the defendant identify any specific documents that had been withheld. Rather, the defendant simply described how it had limited its search for documents that may have been responsive to those particular discovery requests.
For example, in response to two requests the defendant stated that it “limited its search to the e-mail .PST files for project management for the subject project, and has produced all non-privileged e-mails and attachments identified therein relating to the subject project.” Likewise, in response to two other discovery requests that sought certain bid analyses, the defendant simply stated that it had limited its search to bid proposals received for a particular project between two dates and to the evaluation and recommendation letters submitted for those bid proposals. Similarly, in response to a document request seeking documents reflecting an investigation regarding a particular incident, the defendant stated that it had limited its search for responsive documents to an OSHA investigation, its own investigation report, another entity’s investigation report, and e-mail .PST files for the project at issue.
The plaintiff filed a motion to compel and argued that the defendant failed to meet its obligations under Rule 34(b)(2)(C), which states that an objection “must state whether any responsive materials are being withheld on the basis of that objection.” This language was added to Rule 34 by the amendments to the Federal Rules of Civil Procedure that became effective on December 1, 2015.
The court disagreed with the plaintiff and denied the motion to compel. The court explained that the Advisory Committee note on the December 1, 2015 amendments to Rule 34 provide that “[a]n objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’” The court found that the defendant had complied with its obligations under Rule 34 by stating how it had limited its search for responsive documents. The court also noted that if the plaintiff wanted to learn more about whether additional documents existed, the plaintiff could explore that issue in future discovery.
This decision is an important reminder of how the producing party generally has the final say in determining how best conduct its search for ESI. Furthermore, the producing party’s ability to identify the limitations or parameters it placed on its search for responsive documents—as opposed to specifically identifying all documents withheld—may provide parties with an important and potentially cost-saving alternative in discovery.