Civil Rules Roundtable: Low Profile, High Impact

Tuesday, December 1, 2015 - 15:12

A change to Rule 34 that will likely have a significant impact on future federal discovery practice, but that has gotten far less press than it deserves, is Rule 34(b)(2)(B). The amended version of the rule will now require a responding party not only to either agree to the production as requested or state with specificity the grounds for any objections, but also to provide the timing of the production. The amended rule provides that “production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”

While requiring specificity regarding timing of production may seem like a minor change, its application upends the common, current practice of promising document production without a set delivery date, or rolling productions without specific timelines. The Advisory Committee Comments to the Rule 34 amendments address that practice head-on. The Comments demonstrate the drafters’ intent to require a specific document production timeline, and to extend that specificity to staged productions as well, incorporating an expectation that producing parties will also provide beginning and end dates for staged or tiered discovery efforts.  

This change alters more than boilerplate response language that previously provided (often intentionally) vague or indeterminate timing of any document production. That is, a requirement for specificity is more than a change in language regarding timing; it also incorporates additional required knowledge. For a responding party to accurately estimate how long it will take to produce requested, unobjectionable information, the responding party must know how long it will take to procure that information, and, depending on the form of production, how long to prepare it (along with any required privilege objections and related logs). This means that the responding party will have to do an early assessment of the electronic sources of data and documents that may contain relevant information, and how long it will take to search and review documents from those sources.  

In particular, and consistent with amendments to Rule 26, this change may likewise require the parties to discuss these issues during the Rule 26(f) conference. The Rule 26(f) conference is meant to encourage parties to find some middle ground on discovery issues, and represents one of the best opportunities to agree to a realistic timeframe for specific types or volumes of production. But for parties – and, specifically in this case, producing parties – to sit down and productively discuss production timetables and realistic demands, those parties need to have an intelligent and accurate picture of data volumes and types, as well as those party resources that will be available to assist with a timely review and production of relevant information. A producing party may also use this opportunity to confirm the requesting party’s desired form of production, as a court may be unsympathetic to a producing party complaining of the timing required to produce documents or information according to a standard form of requested production.

Nearly every civil case involves some form of document production. And most large, complex commercial cases involve significant volumes of document and data production. Thus, while the proportionality factors and sanction measures under the new rules have deservedly received a lot of attention within the bench and bar, Rule 34(b)(2)(B) may have an even greater impact on the day-to-day practice of civil litigators. The rule amendments were intended as a package, and this can be seen through the amendments to Rule 34(b)(2)(B). Requiring specificity in the timing of production means that parties will necessarily have to address electronic discovery earlier in the process, in order to be able to provide such specificity with responses. This is consistent with one of the overarching themes of the rule amendments – speeding up the timeline of cases and getting parties to discuss electronic discovery issues earlier. Thus, even some of the seemingly more modest changes to the rules may have far-reaching impact when applied against traditional discovery practices. 

 

Karin Scholz Jenson is a Partner at BakerHostetlerkjenson@bakerlaw.com