Advisory Commission Comments to Rules 34.01-34.03

Advisory Commission Comments

This Rule provides a method by which a party may obtain access to relevant material objects under the control of another party. This procedure has long been established in the Federal Rules of Civil Procedure. It has not had an exact equivalent in Tennessee procedure, although a somewhat similar procedure was authorized under T.C.A. §24-1101 et seq. [repealed].

34.01: The provisions of this rule [in 1984] permit a party to obtain documents which are subject to another party’s effective control (e.g., medical records). [1984.]

34.02: A party responding to a request for production obviously must produce documents. To alleviate occasional abuses whereby a party will change the usual organization of files, the [1984] amendment requires either arrangement of records as kept in the course of business or rearrangement to track the request. [1984.]

34.03 [2009]: New Rule 34.03 replaces the earlier version, which mentioned an independent action for production or entry. The subpoena duces tecum procedure in Rule 45 is more efficient.

Advisory Commission Comment [2009]

As originally adopted, Rule 34 focused on discovery of “documents” and “things.” Later, Rule 34 was amended to include discovery of data compilations, anticipating that the use of computerized information would increase. Since then, the growth in electronically stored information and in the variety of systems for creating and storing such information has been dramatic. Lawyers and judges interpreted the term “documents” to include electronically stored information because it was obviously improper to allow a party to evade discovery obligations on the basis that the label had not kept pace with changes in information technology. But it has become increasingly difficult to say that all forms of electronically stored information, many dynamic in nature, fit within the traditional concept of a “document.” Electronically stored information may exist in dynamic databases and other forms far different from fixed expression on paper.

Rule 34.01 is amended to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents. The change clarifies that Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request for production of “documents” should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and “documents.”

Discoverable information often exists in both paper and electronic form, and the same or similar information might exist in both. The items listed in Rule 34.01 show different ways in which information may be recorded or stored. Images, for example, might be hard-copy documents or electronically stored information. The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34.01 is expansive and includes any type of information that is stored electronically. A common example often sought in discovery is electronic communications, such as email. The rule covers – either as documents or as electronically stored information – information “stored in any medium,” to encompass future developments in computer technology. Rule 34.01 is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.

The Rule 34.01 requirement that, if necessary, a party producing electronically stored information translate it into reasonably usable form does not address the issue of translating from one human language to another. See In re Puerto Rico Elect. Power Auth., 687 F.2d 50 1, 504-510 (1st Cir. 1989).

Rule 34.0 1 is also amended to make clear that parties may request an opportunity to test or sample materials sought under the rule in addition to inspecting and copying them. That opportunity may be important for both electronically stored information and hard-copy materials. The current rule is not clear that such testing or sampling is authorized; the amendment expressly permits it. As with any other form of discovery, issues of burden and intrusiveness raised by requests to test or sample can be addressed under Rules 26.02 and 26.03. Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34.01 with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Rule 34.01 is further amended to make clear that tangible things must – like documents and land sought to be examined – be designated in the request.

Advisory Commission Comment [2009]

Rule 34.02 provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34.02 is amended to ensure similar protection for electronically stored information.

The amendment to Rule 34.02 permits the requesting party to designate the form or forms in which it wants electronically stored information produced. The form of production is more important to the exchange of electronically stored information than of hard-copy materials, although a party might specify hard copy as the requested form. Specification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information. The rule recognizes that different forms of production may be appropriate for different types of electronically stored information. Using current technology, for example, a party might be called upon to produce word processing documents, e-mail messages, electronic spreadsheets, different image or sound files, and material from databases. Requiring that such diverse types of electronically stored information all be produced in the same form could prove impossible, and even if possible could increase the cost and burdens of producing and using the information. The rule therefore provides that the requesting party may ask for different forms of production for different types of electronically stored information.

The rule does not require that the requesting party choose a form or forms of production. The requesting party may not have a preference. In some cases, the requesting party may not know what form the producing party uses to maintain its electronically stored information, although Rule 26.06 is amended to call for discussion of the form of production in the parties’ prediscovery conference.

The responding party also is involved in determining the form of production. In the written response to the production request that Rule 34 requires, the responding party must state the form it intends to use for producing electronically stored information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs. A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34.02, runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form. Additional time might be required to permit a responding party to assess the appropriate form or forms of production.

If the form of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. Rule 34.01 requires that, if necessary, a responding party “translate” information it produces into a “reasonably usable” form. Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information. The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Some electronically stored information may be ordinarily maintained in a form that is not reasonably usable by any party. One example is “legacy” data that can be used only by superseded systems. The questions whether a producing party should be required to convert such information to a more usable form, or should be required to produce it at all, should be addressed under Rule 26.06.

Whether or not the requesting party specified the form of production, Rule 34.02 provides that the same electronically stored information ordinarily need be produced in only one form.

Advisory Commission Comment [2019]

Rule 34.02 is amended to require that objections to requests for production of documents and things be stated with specificity. The amendment is intended to make clear that vague, generalized, or “boilerplate” objections are improper. Instead, objections should be specific as to the grounds for the objection, describing the reason(s) in a manner that will reasonably inform the adverse party as to what aspect of the request the objection pertains, thereby facilitating the resolution of discovery disputes without the need for judicial intervention. In addition, the rule is amended to require that any objection or response under Rule 34 make clear what documents and things are actually being withheld pursuant to that objection, if any. A responding party may object to part of a request, or to any item or category sought, but a party should produce those documents and things as to any part of a request for which no objection is made, making clear which parts, items, or categories are being produced. For example, a responding party may object to a Rule 34 request as overly broad on the grounds that the time period covered is too long, or that the breadth of sources from which documents are sought is unduly burdensome, providing the specific bases therefore, and further making clear whether the objection is being made in whole or in part. For any such objection or response that covers only a part of the request, it should be clear from the response that production is being limited to documents or electronically-stored information covering the specifically identified time period or sources for which the responding party has no objection.

This amendment should end the confusion that frequently arises when a producing party states several objections, but then still produces information, documents, and things, leaving the requesting party uncertain whether and to what extent relevant and responsive information has been withheld on the basis of the objection. The producing party does not need to provide a detailed description or log of all documents and things withheld, but does need to respond in a manner that will alert and inform parties what documents and things are being produced, and what categories or types of documents and things have been withheld pursuant to objection, thereby facilitating an informed discussion of the objection.

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