Unless by mutual agreement, the inspection may not be scheduled for a time sooner than 30 days after the request is served, if personally served, and not sooner than 33 days after service by mail. FRCP 34 (b)(2)(A) ; FRCP 6 (d).
Calculating the Due Date or Deadline
Under amended FRCP 6 (a)(1), all deadlines stated in days, no matter the length of the period, are computed in the same way. The day of the event that triggers the deadline is not counted. All other days - including intermediate Saturdays, Sundays, and legal holidays - are counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. FRCP 6 (a)(1).
In determining what is the "next" day, one must continue counting in the same direction - that is, forward when computing a forward-looking period and backward when computing a backward-looking period. FRCP 6 (a)(5).
After Rule 26 Meeting
A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. FRCP 26 (d)(1) (amended eff 12/1/15).
Early Rule 34 Requests
The time to respond may be shortened or extended as directed by the court, or agreed to in writing by the parties. FRCP 34(b)(2)(A) (amended eff 12/1/15)
Unless the court orders otherwise, the parties may stipulate that procedures governing or limiting discovery be modified -- but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. FRCP 29
The court must set a discovery cut-off date. FRCP 16 (b)(3)(A).
Rules and Requirements
For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. FRCP 34(b)(2)(B) (amended eff 12/1/15)
Responding to a Request for Production of Electronically Stored Information
The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use. FRCP 34(b)(2)(D) (amended eff 12/1/15)
Case law authority holds that failure to timely respond to a request for production waives all objections.
An objection to part of a request must specify the part and permit inspection of the rest. FRCP 34(b)(2)(C) (amended eff 12/1/15)
Objections may include:
1. Relevancy (the request seeks information that is outside the scope of permissible discovery);
A Rule 34 request can include a request to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:
Any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
Any designated tangible things; or
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. FRCP 26 (b)(1) (amended eff 12/1/15).
Limitations -- In General
By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under FRCP 30 (amended eff 12/1/20). By order or local rule, the court may also limit the number of requests under FRCP 36. FRCP 26 (b)(2)(A) (amended eff 12/1/15).
The extent of the duty to preserve electronically stored information is the subject of a fast developing body of case law authority. To comply with federal discovery rules, (and avoid the imposition of sanctions), very early in the action you must understand the type and substance of your client's electronically stored information, the operation of your client's information systems, and the extent of your duty to preserve the specific types of electronically stored information in your client's possession.
Failure to Preserve Electronically Stored Information
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. FRCP 26(b)(5)(B) (amended eff 12/1/15)
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response:
In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or as ordered by the court.
FRCP 26(e) (amended eff 12/1/15)
Format of Papers
Customarily, responses to requests for production identify in the first paragraph the propounding party, the responding party, and the set number of the requests. Thereafter, the responding party provides an agreement to comply, an objection, or a partial objection to each request.
Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name — or by the party personally, if unrepresented — and must state the signer’s address, e-mail address, and telephone number. FRCP 26(g)(1) (amended eff 12/1/15)
FILING AND SERVICE
Depositions, interrogatories, requests for documents and requests for admission and their responses must not be filed until they are used in the proceeding or the court orders filing. FRCP 5 (d) (amended eff 12/1/18).
Responses must be served on all parties who have appeared in the action. FRCP 5 (a) (amended eff 12/1/18).
Unless by mutual agreement, the inspection may not be scheduled for a time sooner than 30 days after the request is served, if personally served, and not sooner than 33 days after service by mail. FRCP 34 (b)(2)(A) ; FRCP 6 (d).
Calculating the Due Date or Deadline
Under amended FRCP 6 (a)(1), all deadlines stated in days, no matter the length of the period, are computed in the same way. The day of the event that triggers the deadline is not counted. All other days - including intermediate Saturdays, Sundays, and legal holidays - are counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. FRCP 6 (a)(1).
In determining what is the "next" day, one must continue counting in the same direction - that is, forward when computing a forward-looking period and backward when computing a backward-looking period. FRCP 6 (a)(5).
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