In Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court rejected a contention that examination under Rule 35 could be had only against an opposing party, as not in keeping with the aims of a liberal, nontechnical application of the Federal Rules. 379 U.S. at 116. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. Cuts the time the judge must issue the scheduling order from 120 days after any defendant has been served (or 90 days after any defendant has appeared) to 90 days (or 60). As the note to Rule 26(b)(3) on trial preparation materials makes clear, good cause has been applied differently to varying classes of documents, though not without confusion. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). In the rule text, updated cross-reference from "LR 5-10(b)" to "LR 5-11(b). We recommend that you click on the link provided at the end of this article and send the following comment to the Rules Committee: I recommend the Committee limit the presumptive number of Rule 34 requests. 205, 216217. It has been the accepted view, however, that the times were the same in Rule 33 as those stated in Rule 26(a). 1945) 8 Fed.Rules Serv. The amendment of Rule 33 rejects these views, in favor of allowing both parties to go forward with discovery, each free to obtain the information he needs respecting the case. Requests for production of documents and responses may be made on the record at depositions but usually should be confirmed in writing to avoid uncertainty. These references should be interpreted to include electronically stored information as circumstances warrant. 33.31, Case 2, 1 F.R.D. 281; 2 Moore's Federal Practice, (1938) 2621. It may be quite desirable or necessary to elicit additional information by the inexpensive method of interrogatories where a deposition has already been taken. This amendment should 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. The rule also permits tangible things to be produced, and permission to enter onto designated land or other property possessed or controlled by the responding party can be sought. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. It often seems easier to object than to seek an extension of time. Dec. 1, 2006; Apr. Former Rule 33(b)(5) was a redundant reminder of Rule 37(a) procedure and is omitted as no longer useful. Rule 34 is revised to accomplish the following major changes in the existing rule: (1) to eliminate the requirement of good cause; (2) to have the rule operate extrajudicially; (3) to include testing and sampling as well as inspecting or photographing tangible things; and (4) to make clear that the rule does not preclude an independent action for analogous discovery against persons not parties. The grounds for objecting to an interrogatory must be stated with specificity. If it is objected, the reasons also need to be stated. And even when the respondent successfully invokes the subdivision, the court is not deprived of its usual power, in appropriate cases, to require that the interrogating party reimburse the respondent for the expense of assembling his records and making them intelligible. Dec. 1, 2007; Apr. See also Note to Rule 13(a) herein. The Committee Note is changed to reflect the sensitivities that limit direct access by a requesting party to a responding party's information system. Parties cannot evade this presumptive limitation through the device of joining as subparts questions that seek information about discrete separate subjects. Moreover, under Rule 26(d), the time for response would be measured from the date of the parties meeting under Rule 26(f). This is a new subdivision, adopted from Calif.Code Civ.Proc. The amendment is technical. The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. (B) Responding to Each Item. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and. Notes of Advisory Committee on Rules1993 Amendment. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. Rule 33, as amended, permits either interrogatories after a deposition or a deposition after interrogatories. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes . As originally adopted, Rule 34 focused on discovery of documents and things. In 1970, Rule 34(a) was amended to include discovery of data compilations, anticipating that the use of computerized information would increase. Amended Rule 33(a)(2) embodies the current meaning of Rule 33 by omitting necessarily.. The response may state an objection to a requested form for producing electronically stored information. (D) Responding to a Request for Production of Electronically Stored Information. 1957); see 4 Moore's Federal Practice, 33.27 (2d ed. The words "With Order Compelling Production" added to heading. 100 (W.D.Mo. 33.31, Case 2, the court said: Rule 33 . Specifically, Rule 34(b)(1)(A) states that a requesting party must describe with reasonable particularity each item or category of items to be inspected. 1941) 42 F.Supp. Examples would be 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. Notes of Advisory Committee on Rules1980 Amendment. Is within the jurisdiction of a court of general jurisdiction in the state in which the federal district court is located. 19, 1948; Mar. (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production. . Federal Rule of Civil Procedure 34 governs requests for production of documents and electronically stored information. Mich.Court Rules Ann. Subdivision (b). 12, 2006, eff. Requests to view, copy, and inspect documents that are discoverable material; documents, tangible things, and access to property If it doesn't exist as a document already, and RFP cannot force a party to create a document (reformulated data would be obtained in an interrogatory) 286; Coca-Cola Co. v. Dixi-Cola Laboratories, Inc. (D.Md. 33.62, Case 1, 1 F.R.D. The mechanics of the operation of Rule 33 are substantially revised by the proposed amendment, with a view to reducing court intervention. Protection may be afforded to claims of privacy or secrecy or of undue burden or expense under what is now Rule 26(c) (previously Rule 30(b)). A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Our last module will cover requests for document production and physical and mental examinations. ", In the title, updated the cross-reference from "LR 5-11" to "LR 5-10." 233 (E.D.Pa. 316, 317 (W.D.N.C. Rule 34 of the Federal Rules of Civil Procedure deals with request for production of documents/things. Shortens the time to serve the summons and complaint from 120 days to 60 days. References to documents appear in discovery rules that are not amended, including Rules 30(f), 36(a), and 37(c)(2). Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer. The field of inquiry will be as broad as the scope of examination under Rule 26(b). The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. When there is such an objection, the statement of what has been withheld can properly identify as matters withheld anything beyond the scope of the search specified in the objection. More fundamentally, they feel that, since very general complaints are permitted in present-day pleading, it is fair that the defendant have a right to take the lead in serving interrogatories. The deletion of the text of the former paragraph is not intended to preclude an independent action for production of documents or things or for permission to enter upon land, but such actions may no longer be necessary in light of this revision. CASE RESULTS DO NOT PREDICT OR GUARANTEEA SIMILAR RESULT IN ANY FUTURE CASE. While an ideal solution to this problem is to provide for discovery against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex. 31, r.r. Note also the provisions of revised Rule 26(b)(5), which require a responding party to indicate when it is withholding information under a claim of privilege or as trial preparation materials. Requests for admissions, which are written requests that ask the other side to admit or deny certain facts about the case. (d) Option to Produce Business Records. Dec. 1, 2007; Apr. Rule 33 assures that the objections will lead directly to court, through its requirement that they be served with a notice of hearing. Subdivision (b). E.g., Pressley v. Boehlke, 33 F.R.D. No changes are made to the rule text. Mich.Gen.Ct.R. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically. Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The request must describe with clarity each item to be produced and inspected and also the time and place where it will be inspected or any related act conducted. 1939) 30 F.Supp. . . It makes no difference therefore, how many interrogatories are propounded. Co. (S.D.Cal. Comments from the bar make clear that in the preparation of cases for trial it is occasionally necessary to enter land or inspect large tangible things in the possession of a person not a party, and that some courts have dismissed independent actions in the nature of bills in equity for such discovery on the ground that Rule 34 is preemptive. The Committee is advised that, It is apparently not rare for parties deliberately to mix critical documents with others in the hope of obscuring significance. Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association (1977) 22. When an objection is made to part of a request for production, a response must be made to the remainder of the request at the time the objection is made, or within the period of any extension of time to respond, whichever is later. Corrected Fed. (See proposed Rule 37. 775. Michigan provides for inspection of damaged property when such damage is the ground of the action. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. Since then, the growth in electronically stored information and in the variety of systems for creating and storing such information has been dramatic. P. 34(b) reference to 34(b)(2). The provisions governing use of depositions, to which Rule 33 presently refers, are not entirely apposite to answers to interrogatories, since deposition practice contemplates that all parties will ordinarily participate through cross-examination. Please enable JavaScript, then refresh this page. This procedure is now amplified by directing that the responding party state the form or forms it intends to use for production if the request does not specify a form or if the responding party objects to the requested form. Interrogatories and requests for admission are additional tools that parties can use to discover information before trial. The Committee, however, believes that no amendment is needed, and that the proper meaning of designated as requiring specificity has already been delineated by the Supreme Court. The time period for public comment closes on February 15, 2014. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. Unless he applies for a protective order, he is required to serve answers or objections in response to the interrogatories, subject to the sanctions provided in Rule 37(d). Dec. 1, 2015. An objection to part of a request must specify the part and permit inspection of the rest. . The U.S. District Court for the District of Maryland does not control or guarantee the accuracy, relevance, timeliness, or completeness of this outside information; nor does it control or guarantee the on-going availability, maintenance, or security of these Internet sites. Has been joined as a party and served within a US judicial district and within 100 miles of where the summons was issued. A request for admission is a written letter to the other side in a case containing some fact that can be admitted, denied, or objected to. Documents relating to the issues in the case can be requested to be produced. Aug. 1, 1987; Apr. Otherwise, the State would be compelled to designate each particular paper which it desired, which presupposes an accurate knowledge of such papers, which the tribunal desiring the papers would probably rarely, if ever, have.). 3 (D.Md. In England orders are made for the inspection of documents, English Rules Under the Judicature Act (The Annual Practice, 1937) O. A companion change is made to Rule 33(d), making it explicit that parties choosing to respond to an interrogatory by permitting access to responsive records may do so by providing access to electronically stored information. Explicitly provides authority to enter a protective order that allocates the expenses of discovery. 30, 1991, eff. 33.352, Case 1; Byers Theaters, Inc. v. Murphy (W.D.Va. (adsbygoogle=window.adsbygoogle||[]).push({}), Need a Personal Loan? Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and. 33.11, Case 3; Musher Foundation, Inc. v. Alba Trading Co. (S.D.N.Y. Rule 34(a) requires that, if necessary, a responding party translate information it produces into a reasonably usable form. 29, 2015, eff. July 1, 1970; Apr. 30, 1970, eff. Answers and objections are served together, so that a response to each interrogatory is encouraged, and any failure to respond is easily noted. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. Purpose of Revision. The Committee is advised that parties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by this subdivision. (iii) A party need not produce the same electronically stored information in more than one form. Requests for production may be used to inspect and copy documents or tangible items held by the other party. Requires that the grounds for objecting to a request be stated with specificity. (3) Answering Each Interrogatory. The current rule is not clear that such testing or sampling is authorized; the amendment expressly permits it. 1940) 3 Fed.Rules Serv. Compare, e.g., Payer, Hewitt & Co. v. Bellanca Corp., 26 F.R.D. 1940) 4 Fed.Rules Serv. The purpose of this requirementthat defendant have time to obtain counsel before a response must be madeis adequately fulfilled by the requirement that interrogatories be served upon a party with or after service of the summons and complaint upon him. As in the published proposal, one default form is a form or forms in which [electronically stored information] is ordinarily maintained. The alternative default form, however, is changed from an electronically searchable form to a form or forms that are reasonably usable. [A]n electronically searchable form proved to have several defects. (4) Objections. 1939) 2 Fed.Rules Serv. In the rule text, updated cross-reference from "LR 5-2(b)" to "LR 5-10(b). 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. 572, 587-591 (D.N.M. Using Depositions in Court Proceedings, Rule 34. 2030(c), relating especially to interrogatories which require a party to engage in burdensome or expensive research into his own business records in order to give an answer. 107; Sheldon v. Great Lakes Transit Corp. (W.D.N.Y. 275. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. 1966). Dec. 1, 2006; Apr. The sentence "Requests for production shall be served . The proposed amendment recommended for approval has been modified from the published version. By Michelle Molinaro Burke. (c) Use. 30, 1970, eff. Certain provisions are deleted from subdivision (b) because they are fully covered by new Rule 26(c) providing for protective orders and Rules 26(a) and 26(d). . The response to the request must state that copies will be produced. E.g., Cleminshaw v. Beech Aircraft Corp., 21 F.R.D. . July 1, 1970; Apr. Even non parties can be requested to produce documents/tangible things[i]. (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. If answers are served and they are thought inadequate, the interrogating party may move under Rule 37(a) for an order compelling adequate answers. If the requestor has not stated the form in which electronically stored information should be produced, it can be objected to or the form in which s/he intends to produce should be clarified. (2) Scope. See Ragland, Discovery Before Trial (1932), Appendix, p. 267, setting out the statutes. All documents upon which any expert witness intended to be called at trial relied to form an opinion. Interestingly, the Rules Committee specifically studied limiting the Rule 34 requests, but ultimately did not recommend any limitation. The aim is not to prevent needed discovery, but to provide judicial scrutiny before parties make potentially excessive use of this discovery device. 12, 2006, eff. A party that wishes to invoke Rule 33(d) by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. The time within which leave of court must be secured by a plaintiff has been fixed at 10 days, in view of the fact that a defendant has 10 days within which to make objections in any case, which should give him ample time to engage counsel and prepare. This implication has been ignored in practice. (a) In General. Only terms actually used in the request for production may be defined. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. 1132, 11421144 (1951). The second sentence of the second paragraph in Rule 33, as amended, concerns the situation where a party wishes to serve interrogatories on a party after having taken his deposition, or vice versa. When a case with outstanding interrogatories exceeding the number permitted by this rule is removed to federal court, the interrogating party must seek leave allowing the additional interrogatories, specify which twenty-five are to be answered, or resubmit interrogatories that comply with the rule. Requests for Production United States District Court Southern District of Florida. Notes of Advisory Committee on Rules1991 Amendment. 1942) 5 Fed.Rules Serv. Rule 34 is a direct and simple method of discovery. At the same time the addition of the words following the term parties makes certain that the person in whose custody, possession, or control the evidence reposes may have the benefit of the applicable protective orders stated in Rule 30(b). By making the accompanying responses and these objections to Defendant's requests for production, Plaintiff does not waive, and hereby expressly reserves, its right to assert any and all objections as to the admissibility of such responses into evidence in this action, or in any other proceedings, on any and all grounds including, but not limited 1959) (codefendants). On August 15, 2013, the much-anticipated proposed amendments to the Federal Rules of Civil Procedure (FRCP) were opened for public comment. In many instances, this means that respondent will have to supply a print-out of computer data. 2022 Bowman and Brooke LLP. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information, although Rule 26(f)(3) is amended to call for discussion of the form of production in the parties prediscovery conference. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems. Categories . Subdivisions (c) and (d). The added second paragraph in Rule 33 contributes clarity and specificity as to the use and scope of interrogatories to the parties. . In J. Schoeneman, Inc. v. Brauer (W.D.Mo. (C) Objections. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 768 (Wright ed. More generally, the term used in Rule 34(a)(1) appears in a number of other amendments, such as those to Rules 26(a)(1), 26(b)(2), 26(b)(5)(B), 26(f), 34(b), 37(f), and 45. Moreover, because the device can be costly and may be used as a means of harassment, it is desirable to subject its use to the control of the court consistent with the principles stated in Rule 26(b)(2), particularly in multi-party cases where it has not been unusual for the same interrogatory to be propounded to a party by more than one of its adversaries.