A party may serve on any other party a request within the scope of Rule 26 b :. 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.
A must describe with reasonable particularity each item or category of items to be inspected;. B must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and. C may specify the form or forms in which electronically stored information is to be produced. A Time to Respond. 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 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 Objections. An 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. 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 must state the form or forms it intends to use. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:.
As provided in Rule 45 , a nonparty may be compelled to produce documents and tangible things or to permit an inspection. As amended Dec. July 1, ; Apr. Michigan provides for inspection of damaged property when such damage is the ground of the action.
Court Rules Ann. Practically all states have statutes authorizing the court to order parties in possession or control of documents to permit other parties to inspect and copy them before trial.
The changes in clauses 1 and 2 correlate the scope of inquiry permitted under Rule 34 with that provided in Rule 26 b , and thus remove any ambiguity created by the former differences in language. As stated in Olson Transportation Co. Socony-Vacuum Oil Co. Rules Serv. Rule 34 is a direct and simple method of discovery. This change should be considered in the light of the proposed expansion of Rule 30 b. See Brown v. United States U. Vermont U. 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.
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. Subdivision a. Good cause is eliminated because it has furnished an uncertain and erratic protection to the parties from whom production is sought and is now rendered unnecessary by virtue of the more specific provisions added to Rule 26 b relating to materials assembled in preparation for trial and to experts retained or consulted by parties.
The good cause requirement was originally inserted in Rule 34 as a general protective provision in the absence of experience with the specific problems that would arise thereunder. 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.
It has often been said in court opinions that good cause requires a consideration of need for the materials and of alternative means of obtaining them, i. But the overwhelming proportion of the cases in which the formula of good cause has been applied to require a special showing are those involving trial preparation. In practice, the courts have not treated documents as having a special immunity to discovery simply because of their being documents. 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.
With special provisions added to govern trial preparation materials and experts, there is no longer any occasion to retain the requirement of good cause. The revision of Rule 34 to have it operate extrajudicially, rather than by court order, is to a large extent a reflection of existing law office practice. The Columbia Survey shows that of the litigants seeking inspection of documents or things, only about 25 percent filed motions for court orders.
This minor fraction nevertheless accounted for a significant number of motions. About half of these motions were uncontested and in almost all instances the party seeking production ultimately prevailed. Although an extrajudicial procedure will not drastically alter existing practice under Rule 34—it will conform to it in most cases—it has the potential of saving court time in a substantial though proportionately small number of cases tried annually.
The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing.
It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form.
In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26 c to protect respondent against undue burden of expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentially of nondiscoverable matters, and costs.
Subdivision b. The procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended, and the discussion in the note appended to that rule is relevant to Rule 34 as well.
Problems peculiar to Rule 34 relate to the specific arrangements that must be worked out for inspection and related acts of copying, photographing, testing, or sampling. The rule provides that a request for inspection shall set forth the items to be inspected either by item or category, describing each with reasonable particularity, and shall specify a reasonable time, place, and manner of making the inspection.
Subdivision c. Rule 34 as revised continues to apply only to parties. 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. 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.
For the present, this subdivision makes clear that Rule 34 does not preclude independent actions for discovery against persons not parties. The sentence added by this subdivision follows the recommendation of the Report. This amendment reflects the change effected by revision of Rule 45 to provide for subpoenas to compel non-parties to produce documents and things and to submit to inspections of premises.
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. The rule is revised to reflect the change made by Rule 26 d , preventing a party from seeking formal discovery prior to the meeting of the parties required by Rule 26 f.
Also, like a change made in Rule 33, the rule is modified to make clear that, if a request for production is objectionable only in part, production should be afforded with respect to the unobjectionable portions. See Rule 81 c , providing that these rules govern procedures after removal. Since then, the growth in electronically stored information and in the variety of systems for creating and storing such information has been dramatic. Rule 34 a is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents.
The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both.
The items listed in Rule 34 a show different ways in which information may be recorded or stored. Images, for example, might be hard-copy documents or electronically stored information. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information.
Rule 34 a 1 is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as e-mail.
Rule 34 a 1 is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments. 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. 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 In each of these rules, electronically stored information has the same broad meaning it has under Rule 34 a 1.
These references should be interpreted to include electronically stored information as circumstances warrant. The Rule 34 a requirement that, if necessary, a party producing electronically stored information translate it into reasonably usable form does not address the issue of translating from one human language to another.
See In re Puerto Rico Elect. Power Auth. Rule 34 a 1 is also amended to make clear that parties may request an opportunity to test or sample materials sought under the rule in addition to inspecting and copying them.
That opportunity may be important for both electronically stored information and hard-copy materials. The current rule is not clear that such testing or sampling is authorized; the amendment expressly permits it. As with any other form of discovery, issues of burden and intrusiveness raised by requests to test or sample can be addressed under Rules 26 b 2 and 26 c. Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy.
The addition of testing and sampling to Rule 34 a with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.
Rule 34 a 1 is further amended to make clear that tangible things must—like documents and land sought to be examined—be designated in the request. Rule 34 b provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party.
Rule 34 b is amended to ensure similar protection for electronically stored information. The amendment to Rule 34 b permits the requesting party to designate the form or forms in which it wants electronically stored information produced. 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.