What kind of impact can be expected from the “Proportionality Discovery Proposals?” These Proportionality Discovery Proposals refer to the proposed amendments to the Federal Rules designed to balance the benefits of discovery derived by one party with the other party’s burdens to meet those benefits. To minimize the number of objections and the confusion that arises from objections to e-discovery, the Civil Rules Advocacy Committee (“Committee”) has proposed to add a specificity requirement to Federal Rule of Civil Procedure (“Rule”) 34(b).
Rule 34—Specifying Objections to Production of Documents and ESI
Rule 34 allows for parties to object to discoverable evidence. However, under the current rule objections are general and numerous. This has presented additional issues in litigation because requesting parties are not aware of what kind of materials the objecting party is holding back; nor is the requesting party aware of the reason the objecting party is holding back the requested information. To resolve this issue, the Committee has proposed to amend Rule 34(b)(2)(A) by including a “specificity” requirement in a party’s objection to a discovery request. The Committee has proposed to include language in Rule 34(b)(2)(A) similar to the language found in Rule 33(b)(4). The Committee Note explains this will eliminate “any doubt that less specific objections might be suitable under Rule 34.”
The Committee has also proposed to revise Rule 34(b)(2)(B). This proposed change would require a responding party to either complete production of documents by the inspection date stated in the request or within the reasonable time after the inspection date as stated in the discovery request. One major criticism to this amendment is that it will cut against the common e-discovery practice. Currently, many parties will have the documents inspected by the inspection date but not necessarily produced by the inspection date. However, under the proposed changes, litigants will be expected to perform a higher level of production earlier in the trial process.
Lastly, the Committee has proposed to amend Rule 34(b)(2)(C) to require the objecting party to specify what documents are being withheld. The Committee has explained that this will reduce the confusion that arises in discovery requests where a party will produce some documents but object to others thus leaving the “requesting party uncertain” as to whether any relevant material has been withheld.
If adopted, these revisions seek to cure the gamesmanship behavior that has often played out in discovery production by requiring the objecting party to quickly produce requested documentation, supply sufficient reasons as to why certain requests are objectionable, and disclose the types of documentation that is being withheld. Essentially, the requesting party will not be left in the dark regarding the substantive or relevant nature of the withheld information. This will further aid litigants by eliminating production surprises or production oversights.
The Committee met in the beginning of June 2013 to discuss the proposed changes to the Federal Rules. A six-month public comment period will begin on August 15, 2013. The amendments, if adopted, are expected to be finalized no later than December 2015. Please stay tuned to this blog for future updates regarding these proposed changes.
If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at firstname.lastname@example.org or call her at 516-357-3753.
A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.