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

In last week's article, I discussed the Sedona Conference and the “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). In this week's article, I continue to look at some of the primer's takes on discovery requests and responses to see the primer's strengths and weaknesses.

• Responses to requests for productions.

The primer suggests that, when drafting responses to RFPs, counsel for responding parties should meet with their clients “as early as possible” in order “to determine what documents exist, what requested documents are going to be withheld and for what reasons … what requested documents are going to be produced and when that production can be completed.” Taking these steps “will allow the responding party to avoid using general objections and boilerplate responses.”

The primer further suggests steps to “draft responses that comply with amended Rule 34.” First, should the responding party need more (or less) than the 30 days “after being served or, if the request was delivered under Rule 26(d)(2), within 30 days after the parties' first Rule 26(f) conference,” parties and courts should be cautious about setting a deadline that is “triggered by an unfixed event,” since that can create an opportunity for taking advantage by seeking to ensure that “the response deadline is never triggered.” Second, the parties should keep in mind that the aforementioned 30-day deadline “applies to the written response to the request for production—not the date for producing the ESI.” As for the latter, to the extent that setting a production date is not possible, for various reasons—the scope of production is still being negotiated, additional information that is unavailable at the time of the response period is necessary to provide a definite date of production, etc.—responding parties should state the scope of production that they are willing and able to produce without objection and the specific date of such production, and continue to confer on the final scope of production.

• General objections.

The primer notes that because amended Rule 34 “requires that objections “be stated with specificity, including the reasons for the objections” and “state whether any responsive materials are being withheld on the basis of that objection, “general objections should be very limited.” All general objections, such as privilege, confidentiality, overbreadth, form of production, time period/date range, or other global-scope objections, may be used, but should be stated as narrowly as possible. Boilerplate general objections, even if made out of “an abundance of caution,” should not be allowed. “As Rule 34 makes clear, and as a growing number of courts are holding, such objections may result in a waiver of the objection or even the imposition of sanctions.”

• Specific responses and objections.

The primer notes that one “reason that Rule 34 was revised was to address the uncertainty of what is meant by the commonly used phrase, 'subject to and without waiving these objections, [responding party] will produce responsive, non-privileged documents responsive to this re- quest.'” Responding parties should ask themselves whether “subject to and without waiving” means the party is withholding something and, if so, what and why. The amended rules require clarification as to whether documents actually are being withheld.

When stating what is being withheld, the intention is to “alert the other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” Taking the direct approach is recommended, if possible.

The primer advises that when a responding party intends to produce a more limited scope of documents than has been requested, “it can meet Rule 34's requirements by describing the scope of what it is willing to produce, which may include the parameters of a search for documents, such as custodians, sources, date ranges, and search terms (or search methodology).” Similarly, the responding party must provide a specified time by which production will be completed, whether that time is that already requested in the discovery demand or another time period. Terms such as production “on a 'rolling basis'” are insufficient: “The best practice is to provide a schedule as to what will be produced and when; if that is not possible, the response at least should specify the start and end dates of the production.” When a time period cannot be specified because it involves the producing party searching for documents it may not find, the best response is to describe the scope of its search. If that scope is not fully known, describing it to the limits of what is known should suffice.

• Court involvement.

The primer notes that, “while it is best to resolve discovery disputes without court involvement, that cannot always be accomplished,” and so it is best to provide the court as much as it can, in terms of the legal and factual arguments and questions made by the party and the responses of its opponent. The primer observed that, “Courts are not likely to engage in a wholesale rewriting of discovery requests and may be hesitant to strike a request in its entirety. If either the requesting or responding party believes that there is an appropriate limitation or structure to a request that makes sense, they should identify that limitation or change in structure for the court. This will allow the court to determine what scope or construction should be considered, and will inform the court with its questions relating to or its ruling on any motion filed.”

• Discussion.

The primer does an excellent job of “unpacking” many legal concepts to show how human beings go about trying to satisfy legal standards, object to legal arguments, and so on. It is a gross understatement to say that such unpacking is important and needed.

What, unfortunately, is missing from the primer, and cannot be supplied by the Sedona Conference or any other group of such educated and experienced litigators, is how to put the primer into practice. For courts that are “too busy;” for judges who rationalize their ignorance of e-discovery by thinking it no more than still just a fad with which younger practitioners are obsessed but which will fade as all fads do; for litigators who justify their ignorance of e-discovery as do members of the bench; and, for litigators who can take advantage of courts that do not understand or care about e-discovery by making or responding to discovery demands unreasonably, the guidance in the primer is easily ignored. No matter how accurate the road map it draws, the Sedona Conference cannot force any driver to follow it and, unfortunately, neither can the basic facts or exigencies of litigation. A court that does not want to confront a producing party who has failed to preserve, or does not wish to produce, can simply allow the requesting party to be stuck at discovery, losing on a motion, settling, or going to trial unprepared. As well, a court that does not wish to confront the unreasonable requesting party can find itself sanctioning the producing party for not producing what it cannot, and should not be ordered to, produce.

No set of rules can, absent strong and intelligent enforcement, prevent drivers from driving too fast, too slow, in the wrong lanes or, generally, dangerously. The primer sets forth the rules well, but it does not, nor could it, explain how our judicial system will compel the litigants to follow them. Moreover, until e-discovery is understood as well by as many courts and litigators who understand other principles of that have been part of all phases of litigation, e.g., small cases as well as larger ones, for much longer, it is unlikely that the principles set forth in the primer will be widely followed.

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].