Requests for Production

Requests for Production

Rule 34 puts the other side's documents, electronic data, physical things, and premises in your hands, and it does so without a judge. One party serves a written request on another party. The recipient must respond in writing within 30 days after service,¹ and the court enters only if the recipient objects and the requester moves to compel under Rule 37(a).² The reach is broad. A request may designate writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium, so long as the information can be obtained from that medium directly or after the responding party translates it into a reasonably usable form.³

The evidence is worth seeking because an item says more than a witness can. A deposition answer or an interrogatory answer describes a document, while a Rule 34 request delivers the document itself. The device has one structural limit. It is a direct demand, so it binds only parties, and a nonparty's files can be reached only by subpoena under Rule 45.⁴

The subsections below follow the order in which a lawyer meets the device: what a request may reach, how to draft it, and how the recipient must answer and produce.

What May Be Requested

Rule 34(a)(1) lets a party ask another party to produce designated items, and to permit the requester or its representative to inspect, copy, test, or sample them, so long as the items are in the responding party's possession, custody, or control.⁵ Every request therefore raises two questions: what kind of item is sought, and how does the item stand in relation to the party who must produce it? The rule answers the first with three categories (documents and electronically stored information, tangible things, and land or other property). It answers the second with the phrase “possession, custody, or control” together with the limit of the device to parties. The categories are broad enough that the first question rarely decides a dispute. The second decides most of them.

The first category is defined by example and then by medium. The examples are writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations. The medium requirement is that the information be obtainable from wherever it is stored, either directly or, if necessary, after the responding party translates it into a reasonably usable form.⁶ Each phrase closes an escape route. The list of formats ends with “other data or data compilations,” which keeps the category open as record-keeping changes, so a request for a company's e-mail, its text messages, or a spreadsheet of customer complaints is as proper as a request for a letter. The translation clause answers a narrower evasion. A party that stores data in a form only its own systems can display cannot answer that the data are unreadable, because the rule assigns the conversion to the party that holds the data.

The rule now says in terms that electronically stored information is covered. Rule 34 was amended in 2006 to add an express reference to it, along with provisions for responding to and producing it.⁷ Coverage does not mean that every item must be produced at any cost. Under Rule 26(b)(2)(B), a responding party may object to producing electronically stored information that it identifies as not reasonably accessible because of the expense of locating, reviewing, or reproducing it. The requester may then move for production, and the court may order production, deny it, or order it with restrictions, and may decide which party bears the cost of retrieval.⁸ That procedure addresses burden, so a file that is costly to retrieve stays within the category and becomes a matter for the court to manage.

Some evidence loses its meaning when it is put into words, and the second and third categories exist for it. Rule 34 reaches any designated tangible things,⁹ and it allows a request for entry onto designated land or other property that the responding party possesses or controls, so that the requester may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.¹⁰ Students often overlook the word operation. It means the requester can examine a process while it runs, such as a production line in motion, and not only the equipment standing idle.

Whatever the category, the items must also fall within the ordinary scope of discovery, which reaches matter relevant to a party's claims or defenses and does not require that the item be admissible in evidence.¹¹ A party may request any documents within the other party's custody or control that are relevant to the issues in the case.¹²

The request is proper. The reports are relevant to the negligence claim and sit in Goliath's hands, and a preference for secrecy is not a ground for refusing.¹³ Only a recognized objection such as privilege could excuse production, and it must be expressly stated, because the Rules recognize no silent objection.¹⁴

The second question is how the item relates to the responding party, and the rule's word for it is control. Possession and custody describe physical holding. Control reaches further, because a request cannot be avoided by transferring the information to an agent, and the party's own lawyer counts as an agent for this purpose.¹⁵ The test asks about practical reach and not about the location of the file cabinet (see Societe Internationale v. Rogers).¹⁶ The reason is easy to see. A party that could hand its originals to a lawyer, an insurer, or an affiliate and then answer that nothing is in its hands would make production optional.

The outer edge of control follows from the same reasoning. A party that cannot obtain materials from whoever holds them has nothing within its control to produce, and the requester's route to that holder runs through the nonparty process.

The third limit concerns who may be served, because Rule 34 operates only against parties. A nonparty can be compelled to produce documents and tangible things, or to permit inspection, only as Rule 45 provides.¹⁷ The restriction reaches a party's lawyers and agents as targets too. In Hickman v. Taylor, the Court observed that no Rule 34 order could have been entered against the tug owners' lawyer, because Rule 34, like Rule 33, is limited to parties to the proceeding, thereby excluding their counsel or agents.¹⁸

The party-only rule and the control test divide the work between them. The party-only rule decides whom the request is addressed to, and the control test decides what that party must gather in response. A plaintiff who wants the defendant's contract file, which sits with the defendant's lawyer, serves the request on the defendant and not on the lawyer. The defendant must then collect the file from its lawyer, because documents held by an agent are within the client's control.¹⁹ Whether a particular document held by a lawyer is shielded by privilege or work-product protection is a separate question, answered by those doctrines and not by the control test.

The police report and Goliath's incident reports differ in a single fact. Both are reports about an incident, and both are relevant to the claim. Goliath's, however, is a party that holds its reports, while the police department is a stranger to the suit. The holder's status decides whether a production request works. The kind of document, and its importance to the case, do not.

Making the Request

Rule 34(b)(1) sorts the contents of a written request into two requirements and one option. The request must describe with reasonable particularity each item or category of items to be inspected, and it must specify a reasonable time, place, and manner for the inspection and for performing the related acts. It may also specify the form or forms in which electronically stored information is to be produced.²¹ The related acts are the copying, testing, and sampling that a request may demand along with inspection. The first two items are mandatory because the recipient cannot respond sensibly without them. The third is optional and is used when the requester cares how the data arrive. Because the request goes straight to the responding party, with no judge screening it first, the paper itself must tell the recipient what to gather and when and how to produce it.

Particularity has one purpose: the producing party must understand clearly what documents to produce.²² The rule lets the requester describe either individual items or whole categories,²³ but it permits no “give me everything you've got” demand, because such a demand tells the recipient nothing about which of its documents are wanted.²⁴ Two familiar decisions show how courts have varied in how specifically a request must designate what it seeks. One judge said that a designation must be precise enough for the defendant to go to its files and, without difficulty, pick out the document and say, “Here it is.” A later judge held that it suffices to demand all the documents under the defendant's control pertaining to a particular subject matter.²⁵

The practical lesson for a drafter is to be as specific as one's knowledge allows. A requester who knows a document exists should name it, and one who has never seen the other side's files cannot name documents and must describe a category. A category drawn by subject matter, and tight enough that the recipient knows what to collect, is within the rule's text. The demand for everything is not.

The second requirement completes the request. Inspection happens at a particular time and place and by particular means, so the recipient needs those details to arrange it. A request that carefully lists the documents sought but never says when, where, or how they are to be produced is incomplete on its face.²⁶ The measure is reasonableness: the time must leave the recipient a fair chance to gather the items, and the place and manner must fit what is being inspected. The manner carries the most weight when a request seeks entry onto property. In the conveyor-line example, the owner can prepare only if the request says that the engineer will measure the guards, photograph the controls, and watch the line run.

The third item is the only optional one. A request may name the form or forms in which electronically stored information is to be produced.²⁷ The requester knows how the data will be used, whether searched, sorted, or displayed at a hearing, so the rule lets the requester say which form serves that use. A request that names no form is still a valid request. What the responding party then owes, and when it must answer, belongs to the next subsection.

Nothing in the list of contents requires the requester to justify the request, and that omission has a history. Rule 34 as adopted in 1938 required a court order on a showing of “good cause.” The 1970 amendments replaced that with a mechanism meant ordinarily to operate without a court, which recognized what was already happening: lawyers rarely went to court and proceeded instead by informal agreement.²⁸ Today the requester simply describes what it wishes to see and specifies a reasonable time, place, and manner. The party served responds, ordinarily within 30 days, either saying that inspection will be permitted or stating its reasons for objecting, and if it objects the requester may move under Rule 37(a) to compel.²⁹ A recipient that answers a proper request by demanding a showing of good cause has invoked a requirement the rule dropped. The objections that remain are the ones the Rules recognize, such as privilege, and they must be expressly stated.³⁰

Responding and Producing

A party served with a Rule 34 request must respond in writing within 30 days after being served. When the request was delivered early under Rule 26(d)(2), the 30 days run from the parties' first Rule 26(f) conference instead, so an early request cannot start the clock before the parties have conferred. The lawyers may stipulate to a shorter or longer period under Rule 29, or the court may order one.³² The written response is the point at which the recipient commits to a position, and a fixed date lets the requester plan the rest of discovery around it.

Rule 34(b)(2)(B) requires the recipient to take one of two positions on each item or category. The recipient must state either that inspection and the related activities will be permitted as requested, or the grounds for objecting, with specificity and including the reasons.³³ The structure mirrors the request, so the requester can read the response down the same list and see which items are agreed and which are contested. The rule creates no third option of saying nothing about an item. Claims of privilege or work product, like every other objection, are proper only when expressly stated with a proper foundation, and the Rules recognize no silent objection.³⁴ The responding party may also state that it will produce copies of documents or of electronically stored information instead of permitting inspection. Production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.³⁵

An objection must carry two further features under Rule 34(b)(2)(C). It must state whether any responsive materials are being withheld on the basis of that objection, and an objection to part of a request must specify the part and permit inspection of the rest.³⁶ Each feature answers a way that an objection can mislead. Without the withholding statement, a requester who reads that a request is overbroad cannot tell whether the recipient searched anything, produced a narrowed set, or refused everything. Without the duty to permit inspection of the rest, a recipient could object to one troublesome corner of a request and stall production of all of it.

The second response gives Painter something to act on. He can see what is outside production, the reason for the exclusion, and what he may inspect today. He can answer the stated reason by proposing a date range, or he can put the specific objection before the court by moving under Rule 37(a) to compel the inspection.³⁷ The first response gives the homeowner nothing to negotiate over, because a bare label identifies neither the part of the request that is too broad nor the materials being kept back.

Production is governed by its own rules, and the first concerns documents. Under Rule 34(b)(2)(E)(i), a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.⁴¹ Records produced as kept carry their own context, since the folder and the order of the pages show how the business used them. Records that are organized and labeled give the requester a map from each category to the pages that answer it. What the rule does not permit is a third course, producing records in an arrangement that is neither of the two.

Electronically stored information has its own response rules, because the request may have named a form that the recipient cannot or will not supply. Under Rule 34(b)(2)(D), the response may object to a requested form. If the responding party objects to the requested form, or if the request specified none, the party must state the form or forms it intends to use.⁴² When the request names no form, Rule 34(b)(2)(E)(ii) supplies a default: the party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.⁴³ Stating the intended form in the response moves any disagreement to the front of the process, where a requester who dislikes the form can raise it before an expensive production in the wrong form.

A ceiling sits on top of those provisions. Rule 34(b)(2)(E)(iii) provides that a party need not produce the same electronically stored information in more than one form.⁴⁴ Without the ceiling, a requester could demand native and image versions of the same messages and double the cost with no gain in information.

A form objection differs from an accessibility objection, and the two lead to different disputes. The form dispute concerns how the data arrive. The accessibility dispute, under Rule 26(b)(2)(B), concerns whether data identified as not reasonably accessible must be retrieved at all, and who pays for the retrieval if the court orders it.⁴⁵