The Federal Rules of Civil Procedure have several important provisions about production format. Rule 26 requires the parties to meet and confer about form of production in connection with the discovery plan. Rule 34 addresses content and timing of production format requests and objections. Perhaps most important, Rule 34 also lays out the consequences of failing to specify a form of production.
Production format should be part of the Rule 26(f) conference and discovery plan
Rule 26(f) imposes an aggressive timetable for addressing production format. The parties must discuss production format in the discovery meet and confer, which is to be held “as soon as practicable” and at least 21 days before the scheduling conference.
Rule 26(f) further provides:
(3) Discovery Plan. A discovery plan [to be submitted to the court within 14 days of the Rule 26(f) conference] must state the parties’ views and proposals on:
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced (emphasis added)
Always check the local rules for additional guidance. As an example, the US District Court for the Southern District of Indiana has a section on form of production in its model ESI Supplement to Case Management Plan.
Rule 34 covers production format in the context of requests and objections
Form of production may also be addressed in written requests for production and responses under Rule 34. Although not the norm, requests for production may be served before the Rule 26(f) conference.
The requirements of Rule 34 can also come into play when the parties agree to table the production format discussion during the meet and confer. Parties that fail to address production format at all as required by Rule 26 run into Rule 34 by default.
Rule 34(b) provides that a party may specify a production format in the request. If no format is specified or the responding party objects to the format, the response must state the intended form of production. Both request and response may be broken out into multiple formats for different ESI types.
Objections must be timely under Rule 34; ordinarily that means within 30 days of the request. Courts have held that untimely objections are waived.
Format objections must also be made with specificity. The parties should confer about objections and alternatives. If necessary, they should bring the issue before the court – preferably before production starts.
Not addressing form of production has serious consequences
Rule 34(b) includes another very important provision:
(2)(E) Producing the Documents or Electronically Stored Information.
(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
(iii) A party need not produce the same electronically stored information in more than one form. (emphasis added)
Many states also have this requirement. For instance, Indiana Trial Rule 34 tracks the language of the federal rule. Other states use different wording but impose the same substantive provision.
As long as the production is “reasonably usable” (in the judge’s determination) parties who don’t request a format have to make do with whatever they get. This is true even if they could have gotten a more usable format and additional data simply by asking.
The takeaway is that litigators ignore production format at their peril.
Not following the rules on form of production can have significant consequences. For example, having to re-format a production before it can be loaded into a review database or OCR files that were produced in non-searchable format. These are common scenarios that result in unnecessary delay and expense.
The worst-case scenario however is discoverable information not being produced at all, simply because the production specifications don’t require it. It’s critical to address production format both clearly and early in the case.
A party may serve on any other party a request within the scope of Rule 26(b): to produce and permit the requesting party or its representative to inspect,
copy, test, or sample the following items in the responding party's possession, custody, or control:(a) In general
(1)
(A) any designated documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(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.
(b) Procedure
(1) Contents of the Request.
The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts, and it may specify the form in which electronically stored information is to be produced.
(2) Responses and Objections.
(A) In General.
The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
(B) Responding to a request for production of electronically stored information.
The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form - or if no form was specified in the request - the party shall state the form or forms it intends to use.
(C) Producing the documents or electronically stored information.
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
(ii) The producing party may produce copies of the documents, including by electronic means, provided that, if requested, the producing party affords all parties a fair opportunity to verify the copies by comparison with the originals.
(iii) If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iv) A party need not produce the same electronically stored information in more than one form.
(c) Persons not parties
(1) This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
(2) As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
Reporter's notes
(2016) Rule 34 was amended in 2016 to recognize the common practice of producing copies of documents rather than permitting inspection of the originals (Rule 34(b)(2)(C)(ii)). This amendment reflects a similar amendment to the Federal Rules of Civil Procedure effective in 2015.
The 2016 amendment further states that upon request, the producing party shall provide “all parties a fair opportunity to verify the copies by comparison with the originals.” This language, which is not part of the Federal Rules, reinforces the requesting party’s right to inspect the original documents under the existing language of Rule 34(a). To the extent that producing the original is deemed unduly burdensome or expensive, the producing party may seek a protective order under Rule 26(c). Such an order may restrict access to the original document, or may allow access upon payment of costs associated with production of the original. Rule 34(c) was also amended to add a cross-reference to Rule 45 (Rule 34(c)(2)). Rule 45 had been amended in 2015 to allow a “documents only” subpoena against a nonparty (Rule 45(d)).
(2014) The 2014 amendments to Rule 34 were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26.
The title to Rule 34 has been changed to add a reference to "electronically stored information." The title to Rule 34 is now consistent with the title to Rule 34 of the Federal Rules of Civil Procedure.
The 2014 amendments made some stylistic changes in Rule 34(a) so as to conform the rule to the format set forth in Rule 34(a) of the Federal Rules of Civil Procedure. In addition, the phrase "or electronically stored information" has been added to Rule 34(a)(1)(A), also in conformity with the cognate federal rule.
Formatting and stylistic changes have been made in Rule 34(b), again modeled after Rule 34(b) of the Federal Rules of Civil Procedure, but no substantive changes were intended. Language has been added to Rule 34(b)(1) to the effect that a request for production "may specify the form in which electronically stored information is to be produced."
Rule 34(b)(2)(B) and (C), modeled after Federal Rule 34(b)(2)(D) and (E), have been added to deal with responding to a request for production of electronically stored information and the important aspect of the form for producing such information.
Issues surrounding the production of electronically stored information, including the format for production, should be discussed by the parties in their conference regarding electronically stored information, if there is one. See Rule 26(f)(2).
(1973) Rule 34 copies Federal Rule 34, which in turn changed earlier Federal Rule 34 and SJC Rule 3:15. Previously, a party seeking discovery of documents or objects was required to move for a court order compelling such discovery. Under Rule 34, the party seeking discovery need merely serve a request upon his opponent. Only if the opponent objects to the request must the discovering party obtain a court order.