Let’s Get to the Point: FRCP 34

July 19, 2016

The new FRCP 34 changes the way attorneys respond to discovery requests.

The New Rule 34 (b)(2):  Responses and Objections.

(A)  Time to Respond.  The party to whom the request is directed must respond in writing within 30 days after being served or –if the request was delivered under Rule 26(d)(2) –within 30 days after the parties’ first Rule 26(f) conference.  A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B)  Responding to Each Item.  For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

(C)  ObjectionsAn objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

(Subsections (D) and (E) remain the same).

The changes require that objections to requests for production be stated with specificity and that an objection should state whether any responsive materials are being withheld on the basis of that objection.   So throw out those old objection templates!  This changes the standard general objections that most attorneys lodge to discovery requests. General objections will give way to specific objections and the process may take on a fairly different tone.  The amount of specificity required to satisfy Rule 34(b)(2) will likely be the subject of courtroom arguments. The Advisory Committee Notes clarify that “the producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection” and 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.’”

There are also changes to the timing of the response to fit with new Rule 26(d)(2) and, in the case where documents are produced in stages or on a rolling basis, the response must also specify beginning and end dates for production.  See 2015 Amendment Advisory Committee Notes.

When facing federal litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with Kroll Ontrack as their preferred eDiscovery vendor.  SMGG leverages Kroll Ontrack’s portfolio of eDiscovery solutions and consultative expertise to provide clients with innovative technologies and best-in-class data security practices.  Call the litigation attorneys of Strassburger McKenna Gutnick & Gefsky to assist you with your federal litigation needs.  Gretchen Moore and Harry Kunselman co-chair Strassburger McKenna Gutnick & Gefsky’s Litigation Practice Group.  Gretchen Moore chairs the firm’s eDiscovery Committee.  She can be reached at gmoore@smgglaw.com or 412-281-5423.