Practice Pointers in Responding to Discovery Requests: The Sedona Conference Releases Rule 34(b)(2) Primer

Have you ever received a request for production chock full of boilerplate definitions, many of which have no relevance to the request at all? Or how about a response to your RFP where the first few pages are full of objections that leave you guessing exactly what the other side disputes? As litigators, we are raising our hands here. And that is despite the fact that in 2015, the Federal Rules of Civil Procedure were amended to address these exact issues.

In light of the fact that attorneys seem entrenched in the old way of doing things—using overly detailed definitions, sending extremely broad requests for “any and all records that have anything to do with the case whatsoever, in any form”; and objecting to everything out of the abundance of caution—some new advice has emerged. The Sedona Conference, a nonprofit dedicated to the study and advancement of law in the area of complex litigation, has recently published a useful resource for responding to discovery requests. Entitled “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests” this resource unpacks the 2015 Amendments to Rule 34, and offers practical advice on handling discovery requests.

Federal Rule of Civil Procedure 34 is the rule governing requests for production of documents. In 2015, Rule 34(b) was amended to address systemic problems in how discovery requests and responses were traditionally handled. Colorado also amended its Rule of Civil Procedure regarding production of documents around that same time. According to the comments on those rules, the 2015 change was made to ensure Colorado’s rules mirrored those of its federal counterparts. The 2015 amendment consisted of four major changes, intended to achieve the following goals:

1. Avoid the practice of repeating numerous boilerplate objections to each request which does not identify specifically what is objectionable about each specific request;

2. Allow production of documents in place of permitting inspection but to require that the production be scheduled to occur when the response to the document request is due, or some other specific and reasonable date;

3. Require that when an objection to a document request is made, the response must also state whether, in fact, any responsive materials are being withheld due to that objection;

4. Clarify that a written objection to production under this Rule is adequate to stop production without also filing a motion for a protective order.

The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests

In March 2018, The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) published a primer on Rule 34. This primer is specifically focused on providing resources and guidance in light of the 2015 amendments to Rule 34.

The Primer is an excellent resource for any litigator. The publication is extremely useful, focusing the bulk of its content on practice pointers. And, even though the amendments to Rule 34 occurred several years ago, the publication provides a concise reminder on how the 2015 Rules amendments impacts requests for production and responses to them. The publication also includes two helpful appendices: one includes a collection of cases interpreting the specificity requirements in Rule 34 and state law equivalents; the other provides a sample of standing orders, guidelines, and checklists from courts around the country (District of Colorado’s Checklist included!).

The resource is available for download from The Sedona Conference: https://thesedonaconference.org/publication/The%20Sedona%20Conference%20Federal%20Rule%20of%20Civil%20Procedure%2034%20Primer.

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