The December 2015 changes to Rule 34(b) are dramatic in the way document requests and objections will be handled in federal practice. Indeed, as Chief Justice John Roberts aptly put it, “[t]he amendments may not look like a big deal at first glance, but they are.” See 2015 Year-End Report on the Federal Judiciary.
First, parties should no longer use broad document requests such as produce “any and all” or “each and every” document. Henry v. Morgan’s Hotel Group, Inc., 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016) (collecting cases and finding that a request for any and all documents “are plainly overbroad and impermissible”). Instead, parties must specifically describe with reasonable particularity the information that is being requested. Fed. R. Civ. P. 34(b)(1).
Second, general or boilerplate objections are no longer acceptable. Instead, a responding party is required to state objections with “specificity.” Fed. R. Civ. P. 34(b)(2); Spencer v. City of Orlando, 2016 WL 397935, at *2 (M.D. Fla. Feb. 2, 2016) (stating that “vague, overly broad and unduly burdensome” objections are “meaningless standing alone”). Thus, a responding party can no longer provide vague responses as to what documents are actually being produced in response to a document request. Instead, a responding party is required to specifically state if documents will be withheld based on the specific objections raised. See Fed. R. Civ. P. 34, Advisory Committee Notes to 2015 Amendments. The 2015 amendments to Rule 34 were intended to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” Id.
Third, parties have to incorporate the proportionality standards from Rule 26(b) and 26(g) in their document requests and objections. It is important to remember that Rule 26(g) was enacted “to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party.” Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354, 358 (D. Md. 2008). It was also enacted “to bring an end to the equally abusive practice of objecting to discovery requests reflexively—but not reflectively—and without a factual basis.” Id. As such, broad document requests and boilerplate objections must be replaced with specific, proportional requests and objections.
Fourth, parties now have the option to serve document requests under Rule 26(d)(2) before the Rule 26(f ) conference. This change is intended to allow the parties to have a more focused discussion during the Rule 26(f) conference such that it may help establish the scope of the discovery and allow the parties and the court to address any disagreements at the Rule 16 conference.
Fifth, a producing party must identify the date a production will be complete or, for rolling productions, “the beginning and end dates of the production.” See Fed. R. Civ. P. 34(b)(2)(B); Granados v. Traffic Bar and Restaurant, Inc., 2015 WL 9582430, at *3 (S.D.N.Y Dec. 30, 2015) (finding that defendants failure to identify a date as to when the documents would be produced to be “thoroughly deficient” under amended Rule 34). As a result, parties need to understand the volume of data that needs to be collected and reviewed before specifying a date for the completion of a production. Parties should also discuss these issues early on in the case and try to reach agreements on the reasonable time frames for production.
Finally, although parties usually produce copies of documents or ESI, rather than allowing an inspection under Rule 34(b)(2)(B), a party is now required to expressly state that it is opting to produce copies instead of permitting an inspection.
The changes to Rule 34 demonstrate that parties can no longer approach discovery as they have in the past. Requests that seek “any and all” documents are not sufficient under the amended Rules. Rather, document requests must be proportional and tailored specifically to the claims and defenses in the case.
Moreover, a party can no longer simply object to a document request with general or boilerplate objections. Consequently, before parties respond to any document requests under the new rules, parties need to do their due diligence early on to understand how and where their clients store their data, the potential data sources, the key custodians and any collection challenges. For example, a party cannot object to a document request as “unduly burdensome” without specifying how it is burdensome or how that burden affects the scope and cost of collection, processing, review and production. The familiar “Subject to these objections (e.g., overbroad, unduly burdensome, and ambiguous), we will produce responsive documents” is no longer sufficient. Rather, the objections must include the requisite particularity in response to each document request to explain what is being withheld.
The bottom line is that amended Rule 34 calls for specificity and proportionality when it comes to document request and objections. Parties should look to the Advisory Committee Notes and the evolving case law for guidance on drafting compliant document requests and objections.