Editor's note: This is the first in a two-part series.

In March, the Sedona Conference published, “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 SEDONA CONF. J. 447. The publication was the conference's final version of its Federal Rule of Civil Procedure 34(b)(2) primer, a project of The Working Group on Electronic Document Retention and Production (WG1). The public comment version of the primer had been published in September 2017 and stemmed from the December 2015 changes to Federal Rule of Civil Procedure 34(b)(2) (Rule 34), which, per the primer, “were intended to address systemic problems in how discovery requests and responses traditionally were handled, and the observation that, over a year later, despite numerous articles, training programs, and conferences about the changes, their implementation had been mixed, at best.” In this week's article, I will look at some of the primer's takes on discovery requests and responses to see the primer's strengths and weaknesses.

Background

The primer discusses Chief Justice john Roberts' observation that the changes to Rule 34 “were intended to address systemic problems in how discovery requests and responses traditionally were handled,” specifically, “unreasonable burdens” by the requesting party and false claims made by the producing party that discovery requests were unreasonable. The changes to Rule 34, the primer observes, “were part of the broader aspiration to reduce the costs and delay in the disposition of civil actions by advancing cooperation among the parties, proportionality in the use of discovery procedural tools, and early and active judicial case management.” The drafters of those amendments intended to address certain obstacles to securing “the just, speedy, and inexpensive determination of every action and proceeding.” Those obstacles included: “overly broad, nonparticularized discovery requests that reflexively sought all documents, regardless of the relevance to the claims and defenses at issue”; the “overuse of boilerplate objections that provided insufficient information about why a party was objecting to producing requested documents; responses to requests that “failed to clarify whether responsive documents were being withheld on the basis of objections”; and, responses that stated “requested documents would be produced, without providing any indication of when production would begin, let alone completed, often followed by long delays in production.”

The primer further asserts that despite the “clarity” of the 2015 amendments and the time that had passed for practitioners to absorb those amendments, courts were still seeing “too many noncompliant Rule 34 responses” as well as non-compliant requests. Practitioners continued “to rely on their prior practices; templates; boiler-plate requests, instructions, definitions, and objections; and forms.” The primer opined that the “failure to adapt” was most likely “caused by many practitioners who” were in a “wait and see” mode, “hoping that a clear picture of how to implement the amended rules” emerged from the case law interpreting them. The point of the primer was to help practitioners paint that “clear picture” by getting the discussion regarding the effect of the Rule 34 amendments going.

The primer noted four 2015 amendments to Rule 34(b)(2) that could play a strong role in taking the gamesmanship out of e-discovery demand and production. First, responding parties had to respond “to Rule 34 requests for production (RFPs) within 30 days of service or, if the request was delivered prior to the Rule 26(f) conference, within 30 days after the parties' first Rule 26(f) conference.” Second, objections to RFPs had to be stated “with specificity.” Third, responses had to state whether responsive materials were “being withheld on the basis of objections.” A description of the search to be conducted could satisfy this requirement. Finally, responses to RFPs could state that the responding party would “produce documents” but had to do so either within 30 days or at “another reasonable time specified in the response.”

The primer then discusses how a “substantive conference between the parties early in the case” could provide “an opportunity to comply with the rules amendments and avoid disputes about requests for productions or responses to those requests. Key topics were listed to make the conference “effective.” Those topics included: Scope of discovery: discussion “with particularity” of “the types of documents expected to be relevant to the claims and defenses of the parties and proportional to the needs of the case”; Location and types of relevant data and systems: discussion of “likely sources of relevant documents in discovery conferences,” through which parties could “reduce overbroad requests that lead to objections, unspecific objections which fail to identify what is being produced, and related discovery disputes”; Possession, custody or control: while parties “may have legitimate bases to claim that certain data is not within their possession, custody, or control,” and “it may be advantageous for the party asserting such a position to give notice to the requesting party that such a position is being taken if the data in question is clearly relevant to the claims and defenses,” whenever a responding party did not possess that which is requested, “it should simply say so up front,” so that a party is not put “in the unfortunate position of experiencing the destruction of highly relevant evidence, resulting in otherwise avoidable satellite motion practice concerning claims of spoliation”; Phasing: “the parties should discuss whether producing ESI in phases could result in cost savings or efficiencies”; ESI protocol: The parties should consider entering into an ESI stipulation that includes their “responsibilities and obligations for Rule 34 requests and responses; Privilege: the parties should consider whether they could agree on ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification, such as categorical privilege logs or agreeing that certain categories of documents do not need to be logged; and, whether they would enter into a Fed. R. Evid. 502(d) stipulation and order to prevent the waiver of privileges and protections; and, Identification of claims and defenses: an impediment to a meaningful conference concerning discovery could be the lack of a formal answer to the complaint by the defendant during the pendency of a motion to dismiss, or uncertainty by the defendant as to the nature and bases for the claims asserted. If discovery responses needed to be addressed notwithstanding the lack of a formal answer to the complaint by the defendant during the pendency of a motion to dismiss, practical solutions include the defendant informally identifying its defenses so the parties could discuss the scope of relevant discovery, or formally filing a “protective” answer while the motion was pending.

• Early Delivery of Rule 34 Requests.

The primer notes that responding parties had to respond to Rule 34 RFPs “within 30 days of service or, if the request was delivered prior to the Rule 26(f) conference, within 30 days after the parties' first Rule 26(f) conference.” Indeed, the 2015 amendments allowed “for delivery of Rule 34 requests 21 days after service of the complaint.” Per the 2015 advisory committee notes, “this relaxation of the discovery moratorium” was designed to “facilitate focused discussion during the Rule 26(f) conference.” Indeed, it was expected that conference discussions would “produce changes in the requests”—a benefit to the parties, as it would afford them the opportunity to improve the requests before they were “due or made in writing” and so “comply with the rule changes and avoid discovery disputes.” The primer noted many ways that the early delivery of discovery requests could improve the process. Objections as to the relevance of the data requested, the burden and proportionality of the requests under Rule 26(b)(1), and the steps the producing party would have to take to search for and gather the date could be more specific. Conversely, such initial objections, discussed after early requests, could be shown to be overstated, or initial requests could be “refined or focused to avoid objections.”

• Documentation of Resolutions Concerning Rule 34 Requests and Responses.

The primer notes the importance of documenting discovery “requests, objections, and proposed resolutions for numerous different requests.” It provides a “sample tracking form for such discussions” which would “memorialize” the parties' “progress towards resolution of objections and proposed responses on a request-by-request basis at a conference.” It further suggests that discussions which conclude with definitions of “the scope of the requests or the production,” the parties should memorialize these agreements in writing.

The primer sets forth many standards for how the parties should conduct and summarize discussions. “In drafting requests for production,” it advises, “requesting parties should determine what is needed relative to the claims alleged or defenses raised. The requests also should be proportional to the needs of the case.” Requesting parties should “attempt to minimize the need for objections by avoiding boilerplate requests, instructions that exceed or contradict the requirements of the Federal Rules, definitions that are not actually used in the requests, and blanket requests.” Instead, requesting parties, in compliance with amended Rules 26(b)(1) and 34, should: “consider using the definitions and instructions in the federal or local rules, without elaboration” (so as “to minimize objections to definitions and instructions”); avoid overbroad definitions and instructions; “consider using instructions designed to reduce across-the-board objections. For example, consider including an instruction that the requests should not be construed to request privileged or work product documents created on or after the filing of the complaint”; and, be “thoughtful in applying across-the-board date ranges for the requests.”

The discussions and requests reviewed above pertain to more general discovery requests. The primer, however, makes it clear that more narrow, or “individual,” requests, “should be well-tailored, and not overbroad or disproportionate to the needs of the case.” Per Rule 26, “requests must be limited to ESI that relates to the claims or defenses and be proportional to the needs of the case.” Per Rule 34(b)(1)(A), requests “must describe with reasonable particularity each item or category of items to be inspected.” The primer suggests that requesting counsel should determine whether its “client has information about specific documents or types of documents in the responding party's possession, custody, or control that relate to the claims or defenses in the case” and then “use that information to narrowly tailor requests that target those specific documents or types of documents.” It suggests that the requesting party consider “specifying subsets of documents” and identifying “categories rather than referring broadly to 'all documents'; such steps make “it easier in the meet and confer process to identify requests that can be addressed by searching particular sources, such as key custodians' email accounts.”

The primer further suggests that requesting parties, where possible, “avoid beginning requests with 'any and all documents and communications that refer or relate' to a particular subject (and similar preambles).” The primer reasons that any “increase in scope gained by such language is likely to be offset by wasted time spent resolving objections or narrowing the scope of the request, or by motion practice in which the request may be viewed as overbroad.” Requesting parties should consider “replacing 'refer or relate' and similar language with requests for specific ESI, or with more specific terminology such as 'describing,' 'reflecting,' or 'containing.' The Primer then breaks down the scope of requests generally, first putting them into “requests for specific documents,” then requests for documents “sufficient to show” specific facts, and, finally, “everything else,” i.e., “subjects on which the requesting party has limited information regarding the existence of responsive documents, but for which a comprehensive response is needed.” The primer provides several suggestions as to how to “tailor” such requests.

Next week, I'll discuss the following points: responses to requests for production, general objections, specific responses and objections, court involvement and, finally, how litigators can put the primer to good use.

Leonard Deutchman is vice president, legal for KLDiscovery. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses. Contact him at [email protected].