“Primed” to Learn About Rule 34 of the FRCP? Here’s a New Primer from The Sedona Conference: eDiscovery Best Practices

by CloudNine

As Tom O’Connor and I discussed last week in our ACEDS webinar Key eDiscovery Case Law Review for First Half of 2017 (here’s a link if you missed it), we’re seeing lots of cases that relate to disputes associated with Rule 34 of the Federal Rules of Civil Procedure and disputes over things such as scope of production and proportionality, form of production and the handling of objections.  Now, The Sedona Conference® (TSC) Working Group on Electronic Document Retention & Production (WG1) has issued a public comment version of a new primer on Rule 34.

As noted in the Preface, the Federal Rule of Civil Procedure 34 Primer stems from the December 2015 changes to Rule 34, which 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. Along the way, several courts issued firmly-worded opinions admonishing practitioners against continuing to use overly-broad, non-particularized requests for production and unhelpful, boilerplate objections. These opinions made clear that there would be consequences for those who continue to rely on their pre-December 2015 practices, templates, boilerplate objections, and forms. In short, this Primer aims to meet the need for a framework and guidance on how to comply with the requirements of amended Rule 34.

WG1 has prepared this Rule 34 Primer with practice pointers on how to comply with the amended Rules, and it gathers advice and observations from: (1) requesting and responding parties who have successfully implemented them; and (2) legal decisions interpreting the amended Rules. Judicial opinions issued to date have given a clearer picture on how the amendments will be interpreted and implemented by the bench, and, as noted in the Introduction, any practitioner that does not adapt their practice to incorporate these amendments “does so at his or her own risk”.

After the Introduction, the Rule 34 Primer covers the 2015 Rules Amendments to Rule 34 and then the bulk of the document covers practice pointers for conferences by the parties, requests for production, responses to requests to production, court involvement and requesting and responding parties’ obligations under Rule 26(g).  The Rule 34 Primer also includes two appendices: Cases Interpreting the Specificity Requirements in Rule 34 and State Law Equivalents and Standing Orders, Guidelines, and Checklists Regarding Requests for Production and Responses to Those Requests.  The entire downloadable PDF file is a mere 29 pages, so it’s reasonably compact.

To download the Federal Rule of Civil Procedure 34 Primer, click here.  As always, it’s free!

And, as this is a public comment edition, WG1 encourages Working Group Series members and others to spread the word and share this link so they can get comments in before the public comment period closes on November 15, 2017 (done! – you’re welcome…). Questions and comments regarding the Primer before then can be sent to comments@sedonaconference.org.

So, what do you think?  Have you encountered any cases recently with “overly-broad, non-particularized requests for production” or “unhelpful, boilerplate objections”?

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