Federal Rule 34 Primer — A shepherd’s guide to “herding cats”

Herding Warrior Cats

Federal Rules were last updated in 2016 and the changes were thought to be significant. Welcomed by some and scorned by others, those changes are still being evaluated and applied by judges across the country.

The Sedona Conference has drafted a primer for FRCP 34. Like revisions to the federal rules, I have had differences with the way in which the Sedona Conference has drafted recommendations for some rules; but, this recent Rule 34 primer provides excellent guidance and food for thought. It is well worth the read and very instructive on best practices.

The revisions to Rule 34 were legitimately aimed at reining in overly broad discovery requests and eliminating the hated boiler plate objections. On one hand, it is difficult for producing parties to respond to the classic, “any and all documents, which in any way relate to…” request and on the other, it is impossible to fully comprehend the boiler plate objections “…to the extent that they are overbroad, unduly burdensome, repetitive, ambiguous, oppressive, vague, improper, and/or seek information or production of documents not relevant to the claims or defenses of any party and not reasonably calculated…”

We can all probably agree, at least intellectually, that neither overly broad requests for production nor banal boiler plate objections are productive to moving litigation forward. But, many cannot help themselves in the paranoia of missing “something” or are unduly influenced by the scorched earth client who wants to make litigation difficult .

As I have discussed often here, the Rule 26 “meet & greet” conference may be the answer to the Rule 34 requirements and making smooth progress of discovery a reality. To make the discovery process more successful, parties must make the “meet & greet” more than an informal, obligatory process that gets in the way. Plaintiffs should appear ready and prepared to discuss the information and data they will seek to discover and have the knowledge to understand technical responses provided. Defendants should be prepared to discuss substantive discovery issues including:

• Where are likely sources of relevant documents and data located?
• Who are the custodians of potentially relevant discovery?
• What are anticipated objections to discovery and what agreements can be reached about how objections will be handled?
• Can certain categories of documents be agreed upon as objectionable and that will not be necessary to produce?
• Can detailed protocol be established for the production of both electronically stored information (ESI) and the digitization of paper records?
• Can protocols and agreements be established for sharing metadata and coding in the production?
• How will the culling process be completed? Will technology assisted review (TAR), such as predictive coding, be used?
• What agreements can be reached on keywords and phrases to be employed in the culling process?
• Does phasing the production of ESI and other data make sense in terms of cost savings? Can a schedule be set forth for the phases of production?

What can plaintiffs do to help facilitate smoother and more considered discovery? Send out the Rule 34 requests early. The revised rule provides for the Rule 34 requests to be served 21 days after service of the complaint. Early service allows the producing party plenty of time to consider all of the things to discuss during the Rule 26 conference and helps to ease excuses for providing solid information during it.

Requesting parties should craft requests for production in a way that:

• Make the request clear and concise.
• Requests should be reasonable in scope and avoid overly broad requests.
• Limit the period(s) of time involved in the requests by specifying those periods; without allowing them to be overly broad; i.e.; “from 1996 to present”; unless you can factually substantiate a lengthy and general period such as that. And, if you can, do it in the body of the request.
• Minimize the use of custom definitions unless they help to narrow the scope of requests.
• Use information learned in the Rule 26 conference to target requests to actual data locations and specific custodians where practical.
• Consider using individually concise, subject related requests for production to allow for easier management in any potential discovery disputes.

In a complex case in which the Rule 26 meeting discloses several discovery disagreements, try using focused, subject based discovery requests. You may want to become even more granular by separating out the categories of documents and asking for certain types of documents in specific requests. Emails, CAD drawings, and special data might be set forth in individualized requests. For example, in the case of a defective widget, you might send individual requests in each of these areas:

• The design of the widget.
• Engineering of the widget.
• Science related to the widget.
• Manufacturing related information about the widget.
• Regulatory compliance connected with the widget manufacturing.
• Marketing or sales of the widget.
• Emails related to the design of the widget.
• Emails related to engineering aspects of the widget.
• Emails related to the marketing of the widget.

If any requests must go before the court, you will then be in the position of focusing and educating the court on a single subject at a time. Also, the court can consider what may be unique to the case and the individual subject; rather than the court getting lost in a combination of disparate arguments and possibly merging together the collective problems and solutions.

Avoid the cliché of “herding cats” when it comes to getting lawyers to cooperate, make decisions and compromise on the conduct of details in litigation and particularly the discovery process. Leave the words at the door, at least for the Rule 26 conference.