Avoiding discovery disputes and litigation as a result of errors of The Federal Rules of Civil Procedure require the parties to cooperate in. ences are governed by Federal Rules of Civil Procedure 26(f) and. 16(b) The deadline to meet and confer is set forth in Rule 26(f)(1), re-. FEDERAL RULES OF CIVIL PROCEDURE the parties meet at a discovery conference, except: 1. . disclosures and discovery in their initial meeting. 3.
Substitution of "failure" for "refusal" throughout Rule 37 should eliminate this confusion and bring the rule into harmony with the Societe Internationale decision. See Rosenberg, supra, 58 Col. Rule 37 a provides relief to a party seeking discovery against one who, with or without stated objections, fails to afford the discovery sought.
It has always fully served this function in relation to depositions, but the amendments being made to Rules 33 and 34 give Rule 37 a added scope and importance. Under existing Rule 33, a party objecting to interrogatories must make a motion for court hearing on his objections.
The changes now made in Rules 33 and 37 a make it clear that the interrogating party must move to compel answers, and the motion is provided for in Rule 37 a.
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Existing Rule 34, since it requires a court order prior to production of documents or things or permission to enter on land, has no relation to Rule 37 a. Amendments of Rules 34 and 37 a create a procedure similar to that provided for Rule This is a new provision making clear to which court a party may apply for an order compelling discovery.
Existing Rule 37 a refers only to the court in which the deposition is being taken; nevertheless, it has been held that the court where the action is pending has "inherent power" to compel a party deponent to answer. In relation to Rule 33 interrogatories and Rule 34 requests for inspection, the court where the action is pending is the appropriate enforcing tribunal.
The new provision eliminates the need to resort to inherent power by spelling out the respective roles of the court where the action is pending and the court where the deposition is taken. In some instances, two courts are available to a party seeking to compel answers from a party deponent.
The party seeking discovery may choose the court to which he will apply, but the court has power to remit the party to the other court as a more appropriate forum. This subdivision contains the substance of existing provisions of Rule 37 a authorizing motions to compel answers to questions put at depositions and to interrogatories. New provisions authorize motions for orders compelling designation under Rules 30 b 6 and 31 a and compelling inspection in accordance with a request made under Rule If the court denies a motion, in whole or part, it may accompany the denial with issuance of a protective order.
Compare the converse provision in Rule 26 c. This new provision makes clear that an evasive or incomplete answer is to be considered, for purposes of subdivision aa failure to answer. The courts have consistently held that they have the power to compel adequate answers.
This power is recognized and incorporated into the rule. This subdivision amends the provisions for award of expenses, including reasonable attorney's fees, to the prevailing party or person when a motion is made for an order compelling discovery. At present, an award of expenses is made only if the losing party or person is found to have acted without substantial justification.
The change requires that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified. The test of "substantial justification" remains, but the change in language is intended to encourage judges to be more alert to abuses occurring in the discovery process.
On many occasions, to be sure, the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court.
But the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists. And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.
The present provision of Rule 37 a that the court shall require payment if it finds that the defeated party acted without "substantial justification" may appear adequate, but in fact it has been little used.
Only a handful of reported cases include an award of expenses, and the Columbia Survey found that in only one instance out of about 50 motions decided under Rule 37 a did the court award expenses.
It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary. The proposed change provides in effect that expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying his point to court. At the same time, a necessary flexibility is maintained, since the court retains the power to find that other circumstances make an award of expenses unjust—as where the prevailing party also acted unjustifiably.
The amendment does not significantly narrow the discretion of the court, but rather presses the court to address itself to abusive practices. The present provision that expenses may be imposed upon either the party or his attorney or both is unchanged. But it is not contemplated that expenses will be imposed upon the attorney merely because the party is indigent. This subdivision deals with sanctions for failure to comply with a court order. The present captions for subsections 1 and 2 entitled, "Contempt" and "Other Consequences," respectively, are confusing.
One of the consequences listed in 2 is the arrest of the party, representing the exercise of the contempt power. The contents of the subsections show that the first authorizes the sanction of contempt and no other by the court in which the deposition is taken, whereas the second subsection authorizes a variety of sanctions, including contempt, which may be imposed by the court in which the action is pending.
The captions of the subsections are changed to deflect their contents. The scope of Rule 37 b 2 is broadened by extending it to include any order "to provide or permit discovery," including orders issued under Rules 37 a and Rule 37 b 2 should provide comprehensively for enforcement of all these orders.
On the other hand, the reference to Rule 34 is deleted to conform to the changed procedure in that rule.
A new subsection E provides that sanctions which have been available against a party for failure to comply with an order under Rule 35 a to submit to examination will now be available against him for his failure to comply with a Rule 35 a order to produce a third person for examination, unless he shows that he is unable to produce the person.
In this context, "unable" means in effect "unable in good faith. Subdivision b 2 is amplified to provide for payment of reasonable expenses caused by the failure to obey the order. Although Rules 37 b 2 and 37 d have been silent as to award of expenses, courts have nevertheless ordered them on occasion. Arctic Fur Cap Corp. The provision places the burden on the disobedient party to avoid expenses by showing that his failure is justified or that special circumstances make an award of expenses unjust.
Allocating the burden in this way conforms to the changed provisions as to expenses in Rule 37 aand is particularly appropriate when a court order is disobeyed. An added reference to directors of a party is similar to a change made in subdivision d and is explained in the note to that subdivision.
The added reference to persons designated by a party under Rules 30 b 6 or 31 a to testify on behalf of the party carries out the new procedure in those rules for taking a deposition of a corporation or other organization.
Rule 37 c provides a sanction for the enforcement of Rule 36 dealing with requests for admission. Rule 36 provides the mechanism whereby a party may obtain from another party in appropriate instances either 1 and admission, or 2 a sworn and specific denial, or 3 a sworn statement "setting forth in detail the reasons why he cannot truthfully admit or deny.
Instead, Rule 37 c is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial.
Rule 37 cas now written, addresses itself in terms only to the sworn denial and is silent with respect to the statement of reasons for an inability to admit or deny. There is no apparent basis for this distinction, since the sanction provided in Rule 37 c should deter all unjustified failures to admit.
This omission in the rule has caused confused and diverse treatment in the courts.
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One court has held that if a party gives inadequate reasons, he should be treated before trial as having denied the request, so that Rule 37 c may apply. Another has held that the party should be treated as having admitted the request. Still another has ordered a new response, without indicating what the outcome should be if the new response were inadequate.
United States Plywood Corp. The amendment eliminates this defect in Rule 37 c by bringing within its scope all failures to admit. Additional provisions in Rule 37 c protect a party from having to pay expenses if the request for admission was held objectionable under Rule 36 a or if the party failing to admit had reasonable ground to believe that he might prevail on the matter. The latter provision emphasizes that the true test under Rule 37 c is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail.
The scope of subdivision d is broadened to include responses to requests for inspection under Rule 34, thereby conforming to the new procedures of Rule Two related changes are made in subdivision d: Although Rule 37 d in terms provides for only three sanctions, all rather severe, the courts have interpreted it as permitting softer sanctions than those which it sets forth.
The rule is changed to provide the greater flexibility as to sanctions which the cases show is needed. The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be "willful. Many courts have imposed sanctions without referring to willfulness. In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37 d.
If default is caused by counsel's ignorance of Federal practice, cf. Ohioor by his preoccupation with another aspect of the case, cf. United Packinghouse Workers, 26 F. Thus, the scheme conforms to Rule 37 b as construed by the Supreme Court in Societe Internationale v. A provision is added to make clear that a party may not properly remain completely silent even when he regards a notice to take his deposition or a set of interrogatories or requests to inspect as improper and objectionable. If he desires not to appear or not to respond, he must apply for a protective order.
The cases are divided on whether a protective order must be sought. El Paso Natural Gas Co. Compare also Rosenberg, supra, 58 Col. The party from whom discovery is sought is afforded, through Rule 26 ca fair and effective procedure whereby he can challenge the request made. At the same time, the total non-compliance with which Rule 37 d is concerned may impose severe inconvenience or hardship on the discovering party and substantially delay the discovery process.
The failure of an officer or managing agent of a party to make discovery as required by present Rule 37 d is treated as the failure of the party. The rule as revised provides similar treatment for a director of a party. There is slight warrant for the present distinction between officers and managing agents on the one hand and directors on the other.
Although the legal power over a director to compel his making discovery may not be as great as over officers or managing agents, Campbell v. That a director's interests are normally aligned with those of his corporation is shown by the provisions of old Rule 26 d 2transferred to 32 a 2 deposition of director of party may be used at trial by an adverse party for any purpose and of Rule 43 b director of party may be treated at trial as a hostile witness on direct examination by any adverse party.
Moreover, in those rare instances when a corporation is unable through good faith efforts to compel a director to make discovery, it is unlikely that the court will impose sanctions. The change in the caption conforms to the language of 28 U. Until recently, costs of a civil action could be awarded against the United States only when expressly provided by Act of Congress, and such provision was rarely made.
To avoid any conflict with this doctrine, Rule 37 f has provided that expenses and attorney's fees may not be imposed upon the United States under Rule A major change in the law was made in80 Stat.
Costs are not to include the fees and expenses of attorneys. In light of this legislative development, Rule 37 f is amended to permit the award of expenses and fees against the United States under Rule 37, but only to the extent permitted by statute.
The amendment brings Rule 37 f into line with present and future statutory provisions. New Rule 26 f provides that if a discovery conference is held, at its close the court shall enter an order respecting the subsequent conduct of discovery. The amendment provides that the sanctions available for violation of other court orders respecting discovery are available for violation of the discovery conference order. In deciding the Hickman case, the Supreme Court appears to have expressed a preference in for an approach to the problem of trial preparation materials by judicial decision rather than by rule.
Sufficient experience has accumulated, however, with lower court applications of the Hickman decision to warrant a reappraisal. When the facts of the cases are studied, however, a distinction emerges based upon the type of materials. Commonwealth Oil Refining Co.
When lawyers have prepared or obtained the materials for trial, all courts require more than relevance; so much is clearly commanded by Hickman. In Guilford Nat'l Bank v. See also Mitchell v. United States, 32 F. These changes conform to the holdings of the cases, when viewed in light of their facts.
Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy as with respect to income tax returns or grand jury minutes or points to evidence primarily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order.
On the other hand, the requirement of a special showing for discovery of trial preparation materials reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.
Moreover, the language of the subdivision suggests the factors which the courts should consider in determining whether the requisite showing has been made. The importance of the materials sought to the party seeking them in preparation of his case and the difficulty he will have obtaining them by other means are factors noted in the Hickman case. The courts should also consider the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents the production of which he seeks.
Consideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other.
The court in Southern Ry. The analysis of the court suggests circumstances under which witness statements will be discoverable. The witness may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. Lanham, supra at —; Guilford, supra at Or he may be reluctant or hostile. Lanham, supra at —; Brookshire v. Ohio ; Diamond v.
Or he may have a lapse of memory. Or he may probably be deviating from his prior statement. On the other hand, a much stronger showing is needed to obtain evaluative materials in an investigator's reports. Lanham, supra at —; Pickett v. Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subdivision. No change is made in the existing doctrine, noted in the Hickman case, that one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable.
The Hickman case left this issue open since the statements in that case were taken by a lawyer. As to courts of appeals, compare Alltmont v. United States, F. Similarly, the district courts are divided on statements obtained by claim agents, compare, e. United States, 20 F. See 4 Moore's Federal Practice Guilford Nat'l Bank v.
Subdivision b 3 reflects the trend of the cases by requiring a special showing, not merely as to materials prepared by an attorney, but also as to materials prepared in anticipation of litigation or preparation for trial by or for a party or any representative acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories concerning the litigation of an attorney or other representative of a party.
The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. In enforcing this provision of the subdivision, the courts will sometimes find it necessary to order disclosure of a document but with portions deleted.
Rules 33 and 36 have been revised in order to permit discovery calling for opinions, contentions, and admissions relating not only to fact but also to the application of law to fact. Under those rules, a party and his attorney or other representative may be required to disclose, to some extent, mental impressions, opinions, or conclusions.
But documents or parts of documents containing these matters are protected against discovery by this subdivision. Even though a party may ultimately have to disclose in response to interrogatories or requests to admit, he is entitled to keep confidential documents containing such matters prepared for internal use.
Party's Right to Own Statement. The cases are divided. Wilson Freight Forwarding Co. Courts which treat a party's statement as though it were that of any witness overlook the fact that the party's statement is, without more, admissible in evidence. Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage.
Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve. In appropriate cases the court may order a party to be deposed before his statement is produced. Central Linen Service Co. Commentators strongly support the view that a party be able to secure his statement without a showing. The following states have by statute or rule taken the same position: The definition is adapted from 18 U.
The statement of a party may of course be that of plaintiff or defendant, and it may be that of an individual or of a corporation or other organization. Many, though not all, of the considerations supporting a party's right to obtain his statement apply also to the non-party witness.
Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly. Subdivision b 4 —Trial Preparation: This is a new provision dealing with discovery of information including facts and opinions obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party. The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses.
It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.
Such an expert should be treated as an ordinary witness. Subsection b 4 A deals with discovery of information obtained by or through experts who will be called as witnesses at trial. The provision is responsive to problems suggested by a relatively recent line of authorities.
Many of these cases present intricate and difficult issues as to which expert testimony is likely to be determinative. Prominent among them are food and drug, patent, and condemnation cases. Ohioaff'd. In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent.
Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts frequently cannot anticipate the particular approach his adversary's expert will take or the data on which he will base his judgment on the stand.
Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side.
If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally produces are frustrated.
These considerations appear to account for the broadening of discovery against experts in the cases cited where expert testimony was central to the case. In some instances, the opinions are explicit in relating expanded discovery to improved cross-examination and rebuttal at trial. National Dairy Products Corp.
On the other hand, the need for a new provision is shown by the many cases in which discovery of expert trial witnesses is needed for effective cross-examination and rebuttal, and yet courts apply the traditional doctrine and refuse disclosure. Certain Parcels of Land, 25 F.
Certain Acres, 18 F. Although the trial problems flowing from lack of discovery of expert witnesses are most acute and noteworthy when the case turns largely on experts, the same problems are encountered when a single expert testifies.Federal Rules of Civil Procedure - Title II
Thus, subdivision b 4 A draws no line between complex and simple cases, or between cases with many experts and those with but one. It establishes by rule substantially the procedure adopted by decision of the court in Knighton v. For a full analysis of the problem and strong recommendations to the same effect, see Friedenthal, Discovery and Use of an Adverse Party's Expert Information, 14 Stan.
Past judicial restrictions on discovery of an adversary's expert, particularly as to his opinions, reflect the fear that one side will benefit unduly from the other's better preparation. The procedure established in subsection b 4 A holds the risk to a minimum. Discovery is limited to trial witnesses, and may be obtained only at a time when the parties know who their expert witnesses will be.
A party must as a practical matter prepare his own case in advance of that time, for he can hardly hope to build his case out of his opponent's experts. Subdivision b 4 A provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse.
Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices.
Subdivision b 4 B deals with an expert who has been retained or specially employed by the party in anticipation of litigation or preparation for trial thus excluding an expert who is simply a general employee of the party not specially employed on the casebut who is not expected to be called as a witness.
Under its provisions, a party may discover facts known or opinions held by such an expert only on a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Subdivision b 4 B is concerned only with experts retained or specially consulted in relation to trial preparation.
Thus the subdivision precludes discovery against experts who were informally consulted in preparation for trial, but not retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted.
These new provisions of subdivision b 4 repudiate the few decisions that have held an expert's information privileged simply because of his status as an expert, e.
Pennsylvania Petroleum Products Co. See Louisell, Modern California Discovery — They also reject as ill-considered the decisions which have sought to bring expert information within the work-product doctrine. See United States v. Under subdivision b 4 Cthe court is directed or authorized to issue protective orders, including an order that the expert be paid a reasonable fee for time spent in responding to discovery, and that the party whose expert is made subject to discovery be paid a fair portion of the fees and expenses that the party incurred in obtaining information from the expert.
The court may issue the latter order as a condition of discovery, or it may delay the order until after discovery is completed. These provisions for fees and expenses meet the objection that it is unfair to permit one side to obtain without cost the benefit of an expert's work for which the other side has paid, often a substantial sum. United Air Lines Transp. On the other hand, a party may not obtain discovery simply by offering to pay fees and expenses. In instances of discovery under subdivision b 4 Bthe court is directed to award fees and expenses to the other party, since the information is of direct value to the discovering party's preparation of his case.
In ordering discovery under b 4 A iithe court has discretion whether to award fees and expenses to the other party; its decision should depend upon whether the discovering party is simply learning about the other party's case or is going beyond this to develop his own case. Even in cases where the court is directed to issue a protective order, it may decline to do so if it finds that manifest injustice would result.
Thus, the court can protect, when necessary and appropriate, the interests of an indigent party. Subdivision c —Protective Orders. The provisions of existing Rule 30 b are transferred to this subdivision cas part of the rearrangement of Rule The language has been changed to give it application to discovery generally.
The subdivision recognizes the power of the court in the district where a deposition is being taken to make protective orders. Such power is needed when the deposition is being taken far from the court where the action is pending. The court in the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where the action is pending.
In addition, drafting changes are made to carry out and clarify the sense of the rule. 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.
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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.
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. 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. No substantive change is intended. Notes of Advisory Committee on Rules— Amendment 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. Notes of Advisory Committee on Rules— Amendment The rule is revised to reflect the change made by Rule 26 dpreventing 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 cproviding that these rules govern procedures after removal. Committee Notes on Rules— Amendment Subdivision a. 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.
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 dmaking 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 126 b 226 b 5 B26 f34 b37 fand 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. 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.