§ 25.

01, the Request Procedure (Discovery Practice)

THE REQUEST PROCEDURE

Timing

In federal cases, document production requests can be served only after

certain events have occurred. They may not be served before the time
specified in Federal Rule 26(d), unless leave of court or written stipulation
of the other parties is obtained. Rule 26(d) states that discovery requests
may not be served until the parties have met in accord with Rule 26(f). The
parties may vary this time and allow document production requests to be
served and responded to when they want. Such agreements are common
when both sides seek documents from each other. Leave of court may be
sought in accord with a motion brought under an applicable provision of
Rule 26 or Rule 34 or a scheduling order pursuant to Rule 16.

In state cases, document production requests can usually be served with the
pleadings, or later in a case before pretrial proceedings. In all cases, federal
and state, a party should consider when it will be best to submit a document
production request. Strategically, it may be best to do it before scheduled
depositions or with a notice of deposition. Requests for production may be
used in any sequence with other discovery devices to precede or supplement
other information. The decision has to be made on a case-by-case basis.

Procedure

A party wanting to inspect documents (including electronically stored

information) and things or to enter property need only serve a request
setting forth the what, when, where, and how of the examination. Motions,
affidavits, and court orders are not necessary to gain access to such objects
and land. Rule 34(b) and similar state rules require that a request: (1) set
forth with reasonable particularity, either by individual item or by category,
the items to be inspected; and (2) specify a reasonable time, place, and
manner for making the inspection and copying. Additional request and
response procedures apply to requests for electronically stored information.
Those procedures are discussed in greater detail in Chapter 27, infra.

Abrogated Official Form 24 of the Federal Rules of Civil Procedure formerly

illustrated a proper request:

Plaintiff A.B. requests defendant D.C. to respond within days to

the following requests:

(1) That defendant produce and permit plaintiff to inspect and

copy each of the following documents:
 § 25.01, the Request Procedure (Discovery Practice)

[ Here list the documents either individually or by category

and describe each of them.]

[ Here state the time, place, and manner of making the

inspection and performance of any related acts.]

(2) That defendant produce and permit plaintiff to inspect and

to copy, test, or sample each of the following objects:

[ Here list the objects either individually or by category and

describe each of them.]

[ Here state the time, place, and manner of making the

inspection and performance of any related acts.]

(3) That defendant permit plaintiff to enter [ here describe

property to be entered] and to inspect and to photograph, test
or sample [ here describe the portion of the real property and
the objects to be inspected].

[ Here state the time, place, and manner of making the

inspection and performance of any related acts.] (-1-)

Despite the simplicity of the request procedure, a party seeking documents

should be sure to make some form of formal request. One court refused to
enforce "requests" contained in a letter to a judge and orally at a deposition.
(-2-)

See alsoAppendix B, Form D-1.

See James v. Wash Depot Holdings Inc., 240 F.R.D. 693, 695 (S.D. Fla.
2006); Schwartz v. Mktg. Publ'g Co., 153 F.R.D. 16 (D. Conn. 1994).
 § 25.02, Reasonable Particularity (Discovery Practice)

REASONABLE PARTICULARITY

How do you know for certain whether the request you have drafted
designates the items sought "with reasonable particularity"? You could ask
the law-school classmate who graduated one rank ahead of you in class
standing; or you could apply common sense. You can never be absolutely
certain that your request meets the standard of reasonable particularity,
because that standard is not susceptible to an exact definition; it is, rather, a
flexible standard that varies with the circumstances of a case. (-3-)
Descriptions of materials by the subject matter they contain, by particular
classification, or by definite time periods are usually specific enough. (-4-)

There is a simple two-prong test that, if met, reduces recurring nightmares

about reasonable particularity. The request should be sufficient to: (1) allow
a person of ordinary intelligence to say "I know what they want"; (-5-) and
(2) permit a judge to determine whether all the requested items have been
produced. (-6-) Now you can wake up.

Rule 34 allows descriptions of the items sought to be stated with exactitude

and precision ("I want the 2:13 P.M. June 27 mail from Dean to Elaine") or
with generally descriptive categorization ("I want all the files that contain
the law school's bronzed bluebook exam answers"). A request for documents
that "relate or refer to" a party may not be reasonably particular because
every document in the opposing party's possession could be said to relate to
or refer to the requesting party. (-7-) However, the request is phrased, it
must meet the two-prong test just described, and must occasionally comply
with more stringent requirements imposed by case law.

Most courts allow discovery of general categories of items if the description

is "easily understood." (-8-) Some courts expect a party who has knowledge
about the sought-after documents to be specific in designating the items
requested. (-9-) Almost all courts disallow general descriptions that are
vague, ambiguous, or too broad. And all courts disfavor "boilerplate"
objections that include numerous objections and fail to specify particular
objections. (-10-) Afflicted with this malady are requests seeking, for
example, "all diagrams or documents containing drawings," (-11-) "written
communications about financial transactions," (-12-) "all data relating to
certain" facts, (-13-) simply the "file pertaining to the defendants," (-14-) or
all e-mails relating to the parties.

There are other techniques—for example, the "33-34 One-Two." You submit
a Rule 33 interrogatory asking the other party to describe certain
documents, and then, after receiving the answer, you submit a Rule 34
request for the documents the description of which appears in the
interrogatory answer. There is also the "33-34 One." You combine in one
 § 25.02, Reasonable Particularity (Discovery Practice)

document Rule 34 requests with Rule 33 interrogatories. Because Rule 34

merely requires a request to be "in writing," a request in a set of
interrogatories that a party produce "all documents identified in the
preceding answers" is an appropriate Rule 34 request.

See, e.g., Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 WL 1575214 (E.D.

Cal. June 2, 2009); Mallinckrodt Chem. Works v. Goldman Sachs & Co., 58
F.R.D. 348, 353 (S.D.N.Y. 1973); Richland Wholesale Liquors, Inc. v. Joseph
E. Seagram & Sons, Inc., 40 F.R.D. 480, 481 (D.S.C. 1966).

SEC v. Am. Beryllium & Oil Corp., 47 F.R.D. 66 (S.D.N.Y. 1968).

See St. Paul Reins. Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 514 (N.D.
Iowa 2000); Mallinckrodt Chem. Works, 58 F.R.D. 348.

8B Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal

Practice & Procedure § 2211, at 611 (3d ed. 2010 & Supp. 2020). The "cases
do not indicate whether the attorneys and judges involved must be of
‘ordinary intelligence.’"

Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49 (D.N.J. 1985).

See Hillside Amusement Co. v. Warner Bros. Pictures, Inc., 7 F.R.D. 260,
262 (S.D.N.Y. 1944).

"Any statements of witnesses" discoverable: Wilson v. David, 21 F.R.D. 217,

219 (W.D. Mich. 1957). "All photographs" of the accident scene discoverable:
Simper v. Trimble, 9 F.R.D. 598, 600 (W.D. Mo. 1979). "Disbursement
books, canceled checks, check stubs" discoverable: Michel v. Meier, 8 F.R.D.
464, 477 (W.D. Pa. 1948). "Receipts, settlements, compromises and
releases" discoverable: Walling v. R.L. McGinley Co., 4 F.R.D. 149, 150 (E.D.
Tenn. 1943). "Documents records and correspondence" discoverable:
 § 25.02, Reasonable Particularity (Discovery Practice)

Quemos Theatre Co. v. Warner Bros. Pictures, Inc., 35 F. Supp. 949, 950
(D.N.J. 1940).

10

See, e.g., Nei v. Travelers Home & Marine Ins. Co., 326 F.R.D. 652 (D. Mont.
J2018); Wesley Corp. v. Zoom T.V. Prods., LLC, No. 17-10021, 2018 U.S.
Dist. LEXIS 5068 (E.D. Mich. Jan. 11, 2018).

11

Stark v. Am. Dredging Co., 3 F.R.D. 300, 302 (E.D. Pa. 1943).

12

Wharton v. Lybrand, Ross Bros. & Montgomery, 41 F.R.D. 177, 180

(E.D.N.Y. 1966). See also Paiewonsky v. Paiewonsky, 50 F.R.D. 379, 381
(D.V.I. 1970).

13

Dynatron Corp. v. U.S. Rubber Co., 27 F.R.D. 480, 481 (D. Conn. 1961).

14

Balistrieri v. O'Farrell, 57 F.R.D. 567, 569 (E.D. Wis. 1972).

 § 25.03, Drafting Techniques (Discovery Practice)

DRAFTING TECHNIQUES

The drafting suggestions described in Chapter 22, supra on interrogatories

apply equally to requests for production. You want to draft with some
specificity, to avoid allowing the other side to withhold some documents,
while at the same time drafting with enough breadth to make certain that no
existing documents escape your attention. Two drafting techniques may be
employed to make requests escape-proof and all-encompassing:

1. Draft requests seeking both specifically designated items and

generally described items, and
2. Use definitions.

For example:

1. Furnish all documents concerning any contractual breach by

defendant alleged in paragraph 2 of the complaint, including but not
limited to:
1. The original and all duplicate or other copies of each e-mail,
letter, or written communication between the plaintiff and
defendant between May 1 and August 1;
2. All e-mails, letters, or written communications writings
submitted by the plaintiff to the Banking Commissioner
which contain any reference to the defendant;
3. All complaints plaintiff received relating to the conduct of
defendant from May 1 to September 1. Complaints include
any e-mail, text, letter, or written or electronic
communication submitted by any person, corporation,
organization, agency, or other entity that in any way refer to
the alleged conduct of the defendant described in the
complaint.

The most important definition is usually the meaning of the word document,
which can be expanded beyond the definition provided in Rule 34 to include
the following, and then attached to a request:

The term documents means all writings of any kind, including the originals
and all nonidentical copies, whether different from the originals by reason of
any notation made on such copies or otherwise, including without
limitation, correspondence; memoranda; notes; diaries; statistics; letters; e-
mails; social media communications, messages; telegrams; minutes;
contracts; reports; studies; checks; statements; receipts; returns;
summaries; pamphlets; books; interoffice and intra-office communications;
notations of any sort of conversations, telephone calls, meetings,
professional or social, or other communications; bulletins; printed matter;
 § 25.03, Drafting Techniques (Discovery Practice)

electronic matter; computer printouts; teletypes; telefax; invoices;

worksheets; all drafts, alterations, modifications, changes, and amendments
of any of the foregoing; graphic or oral records or representations of any
kind (including, without limitation, photographs, charts, graphs, microfiche,
microfilm, videotapes, recordings, films, DVDs, CDs, motion pictures, hard
drives, other drives); and any electronic, mechanical, computer, e-mail,
digital, or Internet records or representations of any kind (including,
without limitation, tapes, cassettes, discs, recordings, and computer and
electronic memories).

Whew.

Alternative, and shorter, definitions of document may be used. A concise one

paragraph definition is usually better than a lengthy two page definition,
and does not draw the ire of other lawyers or the court. (-15-) The definition
can refer to the applicable rules and the rules of evidence:

The term document or documents means all writings and

electronically stored information and communications of any
kind and in any medium, including the originals and all
nonidentical copies, as discoverable under Fed. R. Civ. P. 26 and
Fed. R. Evid. 1002 and 1009

The longer definition attempts to define and expand the concept of

document to locate all imaginable documents. The disadvantage is that the
responding party may object to the broad scope and apparent
burdensomeness of the definition. In some cases, it may make little
difference which definition is used, in that responding parties will probably
respond the same way to either request and courts will be properly
unreceptive to quibbling objections based on the definition of document.

The request for production can include a preface and instructions similar to
the introduction to interrogatories discussed in Chapter 22, supra and for
the same reasons. A Rule 34 introduction can include one or more of the
following or similar statements:

1. If your response is that the documents are not in your possession or

custody, describe in detail the unsuccessful efforts you made to
locate the records.
2. If your response is that the documents are not in your control,
identify who has control and the location of the records.
3. If a request for production seeks a specific document or an itemized
category not in your possession, control, or custody, provide any
documents you have that contain all or part of the information
contained in the requested document or category.
 § 25.03, Drafting Techniques (Discovery Practice)

4. Identify the source of each of the documents you produce.

15

Larson v. Correct Craft Inc., No. 6:05-cv-686-Orl-31JGG, 2006 U.S. Dist.

LEXIS 78028 (M.D. Fla. Oct. 25, 2006); Temple Univ. v. Salla Bros. Inc.,
656 F. Supp. 97, 111 (E.D. Pa. 1986); Diversified Prods. Corp. v. Sports Ctr.
Co., 2 F.R.D. 3, 4 (D. Md. 1967).
 § 25.04, Time, Place, Manner (Discovery Practice)

TIME, PLACE, MANNER

Federal Rule 34(b) and similar state rules require that a stated time, place,
and manner for inspection and copying be included in the request for
production. The date must be scheduled at least 30 days after service of the
request because the other party has at least 30 days to respond. The hour
usually is during business hours. The place usually is the location of the
documents (-16-) and occasionally the location of some copying or
reproduction equipment. The manner depends on the kind of items
requested. The delineation in advance of a specific time, place, and manner
can be difficult in some cases, and it is a common practice to use less definite
statements in the request. It is sufficient if the requests include an
alternative statement such as:

1. The time, place, and manner will be mutually agreed upon by the
parties at a later date;
2. The time and place will be determined by the responding party;
3. The production and copying will occur at a specific time and specific
place in a specific manner but the responding party may contact the
requesting party to arrange a more convenient time and place;
4. The responding party may make copies of the documents and
forward such copies to the requesting party with a bill for the copying
expenses.

The production of discoverable documents must be completed no later than

the time for inspection stated in the request, or by another reasonable time
specified in the response. It is insufficient to promise to provide the
responsive documents at an unspecified future date. (-17-)

Whether all documents produced should be copied after inspection depends

on the importance of the documents and the costs involved. It might be
cheaper to copy documents of marginal significance rather than risk not
having such copies later during litigation. However, it might be inefficient
and too expensive to copy documents indiscriminately without inspection.

The location where the documents will be produced will vary depending on
the nature and type of documents. A neutral site might be the best location.
If documents are produced at the location where the documents are kept,
the requesting party might look around at other files or offices and ask about
additional documents. In these situations, it is advisable to produce such
documents at the office of the attorney for the responding party rather than
at the party's office.

The rules do not establish any specific ground rules for document
productions. Generally, documents are produced at some convenient
 § 25.04, Time, Place, Manner (Discovery Practice)

location, and the party reviewing the documents is allowed to designate

documents for copying. The party producing the documents is entitled to
make reasonable arrangements to protect the documents during the
production. Conversely, the reviewing party should be allowed to review the
documents in privacy and at least minimal comfort. (-18-)

The nature of the documents sought will make a difference regarding the
mechanics of document production. Before the advent and onslaught of e-
mails and electronic documents, it was routine to face the prospect of
spending hours or days sifting through file drawers and rooms chock full of
piles or mini-mountains of written memos and correspondence. Now much
of that information appears on a hard drive and can be easily copied to a
DVD or CD, and maybe even indexed to make searching much easier. So,
where and how the documents are preserved and kept will dictate how best
to review and copy them, or whether to rely on the other side to make them
available in hard copy or disk format. Read on.

16

Superior Commc'n v. Earhugger, Inc., 257 F.R.D. 215, 220 (C.D. Cal. 2009);
Petruska v. Johns-Manville, 83 F.R.D. 32 (E.D. Pa. 1979).

17

Qualcomm Inc. v. Apple, Inc., No. 17cv1375-DMS-MDD, 2019 U.S. Dist.

LEXIS 23760 (S.D. Cal.. Feb. 13, 2019).

18

See Schwartz v. Mktg. Publ'g Co., 153 F.R.D. 16 (D. Conn. 1994).
 § 25.05, Responding To Document Requests (Discovery Practice)

RESPONDING TO DOCUMENT REQUESTS

Federal Rule 34(b)(2) requires the party receiving the request to serve a
written response upon the requesting party (and all other parties) within 30
days after service of the request or, if the request was served early pursuant
to Rule 26(d)(2) as added to the rules in 2015, within 30 days after the
parties’ first discovery conference. The lawyers may agree to more time as
long as the extension does not interfere with the completion of discovery. A
judge, upon a motion, may shorten or lengthen the time.

Responses will likely need to be gathered. Litigation hold notices very likely
requires persons in possession of documents to retain them. The failure to
retain documents will quite likely have severe consequences. (-19-
)SeeChapters 28 and 31 in this Text. Data in some documents may need to
be redacted, if proper. (-20-)

The responding party may reply in one or more ways to the request.
Responses must be complete, clear, and accurate. (-21-) Rule 26(g) requires
a responding party to conduct a reasonable inquiry in responding to a
discovery request. This provision requires a party responding to a document
production request to conduct a reasonably diligent search or investigation
to determine the existence, identity, and location of documents requested.
The issues, nature, complexity, size, and individual needs of each case will
determine the precise scope and extent of a reasonable search and
investigation. As long as the method used to identify the documents
provided permits the requesting party to locate and identify the documents
sought, a responding party need not use a system suggested by the
requesting party. (-22-)

Rule 34(b)(2)(B) requires that objections be stated with specificity. If a party

withholds any documents on the basis on an objection, that fact must be
stated. The rule does not require the production of a detailed log of every
document withheld, but responses should make it clear the basis for the
objection and that documents are not being produced. (-23-) Failure to
comply with the revised requirements will result in the waiver of objections
not properly described and as to documents where the withholding was not
disclosed. (-24-) It is only necessary that the party indicate that documents
are being withheld and describe them in some useful manner; it is not
necessary that a full privilege log be produced. (-25-) It is also possible for
the court to find a response inadequate, but allow the party an opportunity
to file a compliant response. (-26-)

Rule 34(b) also makes clear that documents should be allowed to be

inspected or copies provided unless an objection is made to an entire item or
category of a request. The rule states: "If objection is made to part of an item
§ 25.05, Responding To Document Requests (Discovery Practice)

or category, the part shall be specified and inspection permitted of the

remaining parts." If a proper objection is made to an entire request, then
nothing need be produced. If an objection is made to part of a request, the
nonobjectionable documents must be produced. Here are response options:

1. Abracadabra! Produce the requested items according to the

suggested time, place, and manner. Rule 34(b) specifically dictates
how a party produces certain documents. It provides that: "A party
who produces documents for inspection shall produce them as they
are kept in the usual course of business or shall organize them and
label them to correspond with the categories in the request." But not
always. The requesting party and not the responding party may be
required to organize documents if it would take a substantial amount
of time to mark a large number of documents. (-27-) A requesting
party may also ask for too much. For example, a party may request
written compilations of data that the responding party does not have.
The responding party can make available documents containing the
data, which the requesting party can then use to make the
compilations. This response comports with the duty to respond
under Rule 34. (-28-) The responding party should indicate which
documents are being produced in response to which document
requests. In cases involving relatively few documents, this
requirement will not be enforced; in large cases, this provision is
essential to obtaining useful information. (-29-)
2. Disclose the requested items but at another time, place, and manner
agreeable to the requesting attorney.
3. Disclose discoverable portions of documents by redacting any parts
of those documents that are not discoverable. Not all documents, or
all parts of documents, will be discoverable. Documents that contain
work product or privileged information or other nondiscoverable
data can be redacted before they are provided to the requesting
party.
4. Serve a response upon the requesting party, stating that inspection
and related activities will be permitted for the designated items or
categories at the suggested (or another) time, place, and manner.
5. Agree to a protective order under Rule 26(c) to safeguard the
disclosure of certain items.
6. Object to the production and state the reasons for the objection, with
specificity, and maybe move for a protective order. If any documents
are withheld based on the objection, the party must so state.
7. Ignore the request (although this is not authorized by the rule).

The first five responses constitute typically cooperative responses by

attorneys. The vast majority of lawyers will readily stipulate to a reasonable
§ 25.05, Responding To Document Requests (Discovery Practice)

protective order, as lawyers and the courts have pretty well defined what is
protectable and what is not. If not, response 6 is available.

The party producing the documents must do so by organizing and labeling

them to correspond to the discovery requests, or must allow the other party
to inspect documents as the documents are kept in the ordinary course of
business. This manner of production is clearly mandated by Rule 34. The
current rule does not countenance the deliberate or negligent mixture of
critical documents with irrelevant documents to obscure the location and
importance of the critical ones. The responding party has the obligation to
designate specific documents, and should not play games by disclosing
edited information or truckloads of immaterial documents.

Parties also have the responsibility to disclose every responsive document

under Rule 34. In one case, a very curious and imaginative plaintiff
discovered documents in the defendant's dumpster that should have been
turned over during discovery. (Breaching computer-based firewalls only
occurs on television, one hopes.) Defendant claimed that the documents,
while responsive to the plaintiff's discovery requests, only reiterated
information contained in other documents that had been turned over. The
court ruled that failure to provide all of the relevant documents, absent a
timely objection, violated Rule 34. (-30-)

The fifth cooperative response was further discussed in Chapter 7, supra. (-

31-) The sixth response is explained in the next section and was discussed in
the context of objections to interrogatories in Chapter 23, supra, with many
of the same considerations applying to objections to requests for production.
(-32-) The seventh response is deplorable and is dealt with in detail in
Chapter 31, infra on enforcement of discovery requests.

Occasionally parties attempt to subvert the purpose of the rule by producing

documents in an overly expansive way. In one case, the responding party
provided photocopies of requested documents (along with a bill for
photocopying). The party produced eight boxes of documents, including a
telephone book and an airline in-flight magazine, without regard to the
relevance of the documents. The court imposed a sanction as a result. (-33-)
Some parties may be tempted to provide disks brimming with all sorts of e-
mails and electronically stored documents as it is now quite easy and cheap
to respond that way. But the availability of electronic documents does not
change a party's responsibility to respond fairly and precisely to document
requests.

19

See, e.g., Borum v. Brentwood Vill., LLC, 332 F.R.D. 38 (D.D.C. 2019).
§ 25.05, Responding To Document Requests (Discovery Practice)

20

Ewalt v. Gatehouse Media Ohio Holding, Inc., No. 2:19-cv-4262, 2020 WL

4782860 (S.D. Ohio Sept. 16, 2020).

21

New England Speed Factory v. Snap-On Equip., 438 F. Supp. 3d 867 (N.D.
Ill. 2020).

22

Cont'l Ins. Co. v. Chase Manhattan Mortg. Co., 59 Fed. Appx. 830 (7th Cir.
2003).

23

Fed. R. Civ. P. 34(b)(2)(C), Notes of Advis. Comm.—2015 Amendments. The

intended purpose of this requirement is to alert the requesting party of the
need to resolve the objection issues, either by discussion with the objecting
party or by motion.

24

See, e.g., Douglas v. Kohl's Dep't Stores, Inc., No: 6:15-cv-1185-Orl-22TBS,

2016 WL 1588651 (M.D. Fla. Apr. 20, 2016).

25

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL

3743102 (D. Kan. July 13, 2016).

26

See Apex Tool Grp., LLC v. DMTCO, LLC, No. 3:13-CV-372, 2016 WL
212962, at *2 (S.D. Ohio, Jan. 19, 2016).

27

United States ex rel. Schneider, Inc. v. Rush Eng'g Co., 72 F.R.D. 195 (W.D.
Pa. 1977).

28

Roadcloud v. Pa. Bd. of Prob. & Parole, Nos. 05-3787 & 06-2235, 2007 WL
219791 (E.D. Pa. Jan. 26, 2007); Webb v. Westinghouse Corp., 81 F.R.D. 431
(E.D. Pa. 1978).
§ 25.05, Responding To Document Requests (Discovery Practice)

29

See Bd. of Educ. v. Admiral Heating & Ventilating, Inc., 104 F.R.D. 23 (N.D.
Ill. 1984).

30

Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1244 (10th Cir. 2006).

31

See§§ 7.03 and 7.01[G], supra for discussion of the use of protective orders
and stipulations, respectively. See also Thermorama, Inc. v. Shiller, 271
Minn. 79, 85, 135 N.W.2d 43, 47 (1965); Snyker v. Snyker, 245 Minn. 405,
408, 72 N.W.2d 357, 359 (1955).

32

See§§ 4.05 and 5.04, supra.

33

See Schwartz v. Mktg. Publ'g Co., 153 F.R.D. 16 (D. Conn. 1994).
 § 25.06, Objections To Production Requests (Discovery Practice)

OBJECTIONS TO PRODUCTION REQUESTS

A responding party may object to part or all of an item or category requested

for production. All objections must be bona fide and provide the responding
party with substantial justification for the refusal to disclose. Even if there
are valid technical or substantive objections, as a strategic matter you need
first to determine whether the harm, if any, in disclosing an item justifies the
effort required to oppose discovery; and second, to determine what impact
your refusal to disclose may have on the opposing lawyer's willingness to
cooperate with you in your requests for production.

Production requests and objection procedures apply to requests for ESI.

Those procedures are discussed in greater detail in Chapter 27, infra.

The more common objections (-34-) to Rule 34 requests state that the
documents or items:

 Are not in the possession, control, or custody of the responding

party. (-35-)
 Are no longer in existence. (-36-)
 Are not yet prepared. (-37-)
 Contain words with fewer than eight syllables, simple sentences, and
no Latin clauses, and thus will be undecipherable to an attorney. (-
38-)
 Are not discoverable under Rule 34. (-39-)
 Are irrelevant beyond the scope of Rule 26. (-40-)
 Are public records and available through requester's own efforts. (-
41-)
 Are trial preparation materials. (-42-)
 Are mental impressions or opinions of a lawyer. (-43-)
 Are materials from experts who will not testify at trial. (-44-)
 Contain an 18-minute gap. (-45-)
 Impose undue burden or expense. (-46-)
 Are sought through an overbroad request. (-47-)
 Are sought through a vague and ambiguous request. (-48-)
 The inspection of property is hazardous or extensively disrupts
operations. (-49-)
 The inspection of land invades the privacy of the property owner. (-
50-)
 The love letter in the sand blew away. (-51-)
 The disk, hard drive, or server does not contain the documents.
 § 25.06, Objections To Production Requests (Discovery Practice)

 The source of the electronically stored documents has been

corrupted.
 The ESI documents were destroyed under a reasonable and proper
document retention/destruction policy.
 The ESI documents no longer exist and cannot be recovered.

Objections must be asserted in a timely fashion and must be stated with

specificity. If an objection is not made by the time a response is due, it will
be waived. (-52-) Additionally, if any documents are withheld from
production based on the objection, that fact must be stated.

The party who interposes the objection must show its validity and grounds.
(-53-) This burden may be met by factual affidavits from a party or by legal
memoranda from the attorney. An affidavit from a technical expert may be
necessary to establish that ESI documents cannot be retrieved or recovered.
In some cases, the requesting party may also have a burden. Courts may
require a requesting party to show necessity for the Rule 34 access if such a
request creates a hazardous situation, or produces minimally reliable
information, or the data is not obtainable in a readily available format. (-54-
)

Objections to Rule 34 requests, like objections to other discovery requests,

must be made in good faith and with care. There exists a temptation,
because of the difficulties inherent in complying with a Rule 34 request, to
yell "It's impossible." And it may well be. Negotiating with the requesting
lawyer often yields a pragmatically responsive request. Boilerplate
objections that lack the requisite specificity required by the rules and case
law are improper and subject to sanctions. (-55-)

A typical response to a set of production requests may well include a variety

of replies: some objections, some responsive documents, some denials, some
requests for clarification, and related responses. It may well be in the best
interests of the responding party to disclose supporting documents that were
not specifically requested. Or, it may well be that the requests are
insufficient to justify the disclosure of certain documents. (-56-) The failure
to comply with the requests may result in a motion to compel such
documents. And this motion will commonly require a conference between
the disputing parties in an effort to reach a compromise.

Objections based on undue burdens or overbroad requests are scrutinized by

judges and may be overruled because the very nature of discovery renders
response to these requests impossible. (-57-) A responding party itself may
have created part of the impossibility claimed, because of inadequate record
management or poor filing systems, or because the materials were
maintained in a way that is undecipherable to the requesting party, or
 § 25.06, Objections To Production Requests (Discovery Practice)

because the format used to record and retain the information is customized
and unable to be electronically translated. Courts require responding parties
to produce documents in an orderly and understandable way. (-58-)

Boilerplate objections and those lacking specificity are similarly not well-
received. (-59-) A routine objection may state: "Defendant objects to this
Request as irrelevant, overly broad, burdensome, oppressive, not
proportional to the needs of the case, seeking nondiscoverable expert
information beyond that allowed by Rule 26(b)(4) of the Federal Rules of
Civil Procedure" or "Notwithstanding Plaintiff’s objections to Request
Number One as irrelevant, too broad, not limited in duration, harassing, not
proportional, and seeking information that is confidential and/or
proprietary business information, Plaintiff responds as follows:.…" It is
possible, one supposes, that a production request, like badly composed
interrogatories, could be so poorly drafted that it succumbs to all these
attacks. More commonly, these broad-based objections serve no useful
purpose. Courts may well impose sanctions on these improper efforts. (-60-)

Objections based on privilege, confidentiality, or work-product protection

usually require some disclosures to the requesting party. Although the
responding party may believe the documents are nondiscoverable, the
existence of those documents is ordinarily discoverable. The general rule is
that a requesting party has a right to learn of the existence of the documents,
their title, the general subject matter, and the identity of the author and any
recipients. This information must be disclosed if a requesting party requests
it, or may be disclosed voluntarily even in the absence of a request. Federal
Rule 26(b)(5) requires such information to be included in an objection. If
disclosure of the existence of documents would violate a person's Fifth
Amendment privilege or the work-product protection, the information may
not have to be disclosed.

The party who receives an objection response to part or all of its request may
redraft the request to eliminate the objections or may attempt to negotiate
with the responding attorney to reach a compromise on disclosure. Courts
look very, very kindly on these good faith efforts to resolve an objection and
may mandate by local rule that such efforts be made. A party seeking
materials that may place too heavy a burden on the responding party can
reduce the burden by offering assistance in collating or collecting documents
or by paying the costs of their production. (-61-) Should these efforts fail, the
requesting party may seek a Rule 37 order compelling production or may
pout in a corner of the law office. (-62-) Motions to compel need to be
brought in a timely manner, or they will be denied. (-63-)

34
 § 25.06, Objections To Production Requests (Discovery Practice)

An objection that is neither common nor well recognized, but is peculiar to a

Rule 34 request by a government agency, is an objection based on the
Fourth Amendment prohibition against unreasonable searches and seizures.
See 8B Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice & Procedure § 2020 (3d ed. 2010 & Supp. 2020).

35

SeeFed. R. Civ. P. 34.01.

36

See William A. Meier Glass Co. v. Anchor Hocking Glass Corp., 11 F.R.D.
487, 491 (W.D. Pa. 1951).

37

See Soetaert v. Kan. City Coca-Cola Bottling Co., 16 F.R.D. 1, 2 (W.D. Mo.
1954).

38

Legalese smorgasbord.

39

See Haff v. Gram, 355 F. Supp. 542 (D. Minn. 1973).

40

Fed. R. Civ. P. 26(b)(1).

41

United Cigar-Whelen Stores Corp. v. Philip Morris, Inc., 21 F.R.D. 107

(S.D.N.Y. 1957).

42

Fed. R. Civ. P. 26(b)(3).

43

Id.

44

Fed. R. Civ. P. 26(b)(4).

 § 25.06, Objections To Production Requests (Discovery Practice)

45

Remember Rosemary Woods? If you don't, it's worth an Internet search.

46

Fed. R. Civ. P. 26(c); Baskerville v. Baskerville, 246 Minn. 496, 507, 75

N.W.2d 762, 769 (1956).

47

Biliske v. Am. Livestock Ins. Co., 73 F.R.D. 124 (W.D. Okla. 1977).

48

Documents and things to be produced should be described with reasonable

particularity, but the test is a relative one, depending on the degree of
knowledge of the requesting party in each particular case. Roebling v.
Anderson, 257 F.2d 615, 620, 621 (D.C. Cir. 1958); Flickinger v. Aetna Cas. &
Sur. Co., 37 F.R.D. 533, 535 (W.D. Pa. 1965).

49

Belcher v. Bassett Furniture, 588 F.2d 904, 908 (4th Cir. 1978).

50

See Kenneth B. Hughes & Carol E. Anderson, Discovery: A Competition

Between the Right of Privacy and the Right to Know, 23 U. Fla. L. Rev. 289
(1971).

51

Sing along with the oldies but goodies.

52

See, e.g., Slauenwhite v. Bekum Maschinenfabriken, G.m.b.H., 35 Fed. R.

Serv. 2d 975 (D. Mass. 1983).

53

See 8B Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal

Practice & Procedure §§ 2206–07 (3d ed. 2010 & Supp. 2020).

54
 § 25.06, Objections To Production Requests (Discovery Practice)

SeeJames R. Underwood, A Guide to Federal Discovery Rules 131 (1985).

55

See, e.g., Enron Corp. Sav. Plan v. Hewitt Assocs., LLC, 258 F.R.D. 149 (S.D.
Tex. 2009).

56

Bankdirect Capital Fin., LLC v. Capital Premium Fin., Inc., 343 F. Supp. 3d
742 (N.D. Ill. 2018).

57

See, e.g., Steinberg v. Elkins, 470 F. Supp. 1024 (C.D. Md. 1979); Kozlowski
v. Sears, Roebuck & Co., 73 F.R.D. 73 (D. Mass. 1976).

58

Brooks v. Macy's Inc., No. 10 Civ. 5304 (BSJ) (HBP), 2011 WL 1793345
(S.D.N.Y. May 6, 2011); Alliance to End Repression v. Rockford, 75 F.R.D.
441 (N.D. Ill. 1977); Stapleton v. Kawasaki Heavy Indus., Ltd., 69 F.R.D. 489
(N.D. Ga. 1975).

59

See, e.g., Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694,
at *3 (S.D.N.Y. Feb. 28, 2017). This decision of Magistrate Judge Peck is
informative on shortcomings in responding to requests and is worth
reading. It begins with "Let us count the ways the defendants have violated
the rules."; Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D.
Md. 2008); see also Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D.
168 (N.D. Iowa 2017) (rejecting boilerplate discovery responses but
declining to impose sanctions based on good faith approach to discovery by
both sides).

60

See, e.g., Wesley Corp. v. Zoom T.V. Prods., LLC, No. 17-10021, 2018 U.S.
Dist. LEXIS 5068 (E.D. Mich. Jan. 11, 2018) (imposing sanctions for
repeated frivolous use of boilerplate objections).

61

See Shang v. Hotel Waldorf-Astoria Corp., 77 F.R.D. 468 (S.D.N.Y. 1978).

62
 § 25.06, Objections To Production Requests (Discovery Practice)

See Clinchfield R.R. Co. v. Lynch, 700 F.2d 126 (4th Cir. 1983) (request for
order).

63

Sanchez v. Hargan, 334 F.R.D. 180 (N.D. Ill. 2020).

 § 25.07, Discovery of Foreign Language Documents and
Translations (Discovery Practice)

DISCOVERY OF FOREIGN LANGUAGE DOCUMENTS AND

TRANSLATIONS

The discovery rules make no specific provision for the production or

translation of documents not written in English. One federal circuit decision
refused to apply the language of Rule 34(a), which provides that
discoverable documents include "writings … and other data compilations
from which information can be obtained, translated, if necessary," to require
a party to translate documents from Spanish and Japanese into English. (-
64-) The First Circuit specifically found that the quoted portion of Rule 34
clearly relates only to computer-based information, and refused to expand
the rule beyond the data-processing context.

A party generally has no obligation to create translations of foreign language

documents. (-65-) An interesting problem arises, however, when
translations may already exist for foreign language documents. In one case,
parties to an insurance coverage dispute had translated a group of
documents, at a cost in excess of $70,000 in the course of an underlying
lawsuit. When discovery was sought of the foreign language documents as
well as the translations, the company refused to produce them except upon
payment of the cost of having the translations made. The court in this case
refused to place this additional burden on the party seeking discovery and
ordered the translations produced upon payment of a reasonable charge for
photocopying. (-66-) Another court ordered production of brief summaries
of 20,000 foreign language documents, despite the fact they had been
selected from a much larger group based on criteria established by counsel.
The court did not extend this ruling to a smaller group of documents counsel
had selected for full translation. (-67-) Where a party elects to direct a
requesting party to documents in lieu of providing a substantive answer to
an interrogatory, as permitted by Fed. R. Civ. P. 33(d), it may be required to
translate foreign language documents that are so used. (-68-)

64

Nature's Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 442
(E.D.N.Y. 2011); In re P.R. Elec. Power Auth., 687 F.2d 501 (1st Cir. 1982).
See also In re Fialuridine ("FIAU") Prods. Liab. Litig., 163 F.R.D. 386
(D.D.C. 1995).

65

See, e.g., Briese Lichtechnik Vertriebs GmbH v. Langton, 272 F.R.D. 369,
374 n.4 (S.D.N.Y. 2011).

66
 § 25.07, Discovery of Foreign Language Documents and
Translations (Discovery Practice)

See Nature's Plus Nordic A/S, 274 F.R.D. at 439–40 (finding existing
translations "prepared in existence of litigation," but also finding that
requester had "substantial need" for them). But see Stapleton, 69 F.R.D. 489
(defendant ordered to bear claimant's translation costs of Japanese language
documents produced by defendant). There is ample authority for the
imposition of copying and other nominal costs as a condition precedent to
discovery of documents. See, e.g., Currie v. Moore-McCormack Lines, Inc.,
23 F.R.D. 660 (D. Mass. 1959) (court required party to pay copying costs);
Yonkers Raceway, Inc. v. Standardbred Owner Ass'n, 21 F.R.D. 3 (S.D.N.Y.
1957) (cost of transporting documents).

67

Plant Genetic Sys., N.V. v. Northrup King Co., 174 F.R.D. 330 (D. Del. 1997).

68

See Sungjin Fo-Ma, Inc. v. Chainworks, Inc., No. 08-CV-12393, 2009 U.S.
Dist. LEXIS 58059 (D. Mich. July 8, 2010) (defendant ordered to respond to
interrogatories in lieu of submitting Korean business records under Rule
33(d) because defendant, as submitting entity, had greater knowledge of
native-language materials).
 § 25.08, Conducting the Examination (Discovery Practice)

CONDUCTING THE EXAMINATION

The extent of your examination depends on the nature of the item. Rule
34(a) provides you with the right to inspect and copy documents and
electronically stored information; to inspect, copy, test, and sample tangible
things; to enter and to inspect, measure, survey, photograph, test, or sample
land and property; and to observe machinery or manufacturing, production,
distribution, and other business processes.

Your inspection and perusal of the requested documents and things should
proceed with two primary considerations: (1) Has everything you requested
been turned over to you? Or too little? Or too much? (2) Do the records
indicate that other relevant documents are still outstanding?

You should maintain some means of listing and identifying the exact
documents and things examined. A good record can later quell any
questions about what was produced when. You can create such a record with
a computer program that lists the documents with notes, or by placing some
distinctive mark or initials or sticky notes on printed documents. Although
you need your adversary's permission if you plan to mark the items in any
way, they may have a similar interest and will cooperate in maintaining an
accurate and complete record.

Copying of items is usually at your own expense. You can arrange to use the
adversary's copying or reproduction equipment and reimburse your
opponent, or arrange for your own equipment. You may wish to photograph,
video record, or tag some items as physical evidence. The nature of the ESI
documents will also determine how best they can be retrieved and made
available. The manner of copying or recording is usually a matter of
accommodation and cooperation between the attorneys.

The review of documents and things permitted by Rule 34 is something the

inspecting party may do in private, and with reasonable opportunity to
confer. One court expressly rejected an argument that the defendant was
entitled to observe the examination and testing of real property by plaintiffs
and their experts. (-69-) There is no right to participate in this way, and
there is much potential mischief if these examinations become adversarial.
Courts have similarly rejected attempts to have lawyers participate in or
observe Rule 35 medical examinations. (-70-)

69

Mancuso v. D.R.D. Towing Co., LLC, No. 05-2441 SECTION: "J" (4), 2006
WL 889383 (E.D. La. Mar. 13, 2006); Teer v. Law Eng'g & Envtl. Servs.,
Inc., 176 F.R.D. 206 (E.D.N.C. 1997).
 § 25.08, Conducting the Examination (Discovery Practice)

70

Attendance at independent medical examinations is discussed in § 29.10,

infra.