Proposed FRCP Amendments: Rule 26(c)(1), Rule 26(d)(2), and Rule 34

November 19, 2014

FCRP updateToday in our series on the proposed amendments to the Federal Rules of Civil Procedure we will examine the remaining changes to Rule 26, as well as the changes to Rule 34.

Rule 26(c)(1)

Rule 26(c)(1)(b) is being changed to include “the allocation of expenses” in terms that may be included in a protective order. Rule 26(c)(1) currently allows an order to protect against “undue burden or expense” which includes authority to allow discovery only on the condition that the requesting party bear the costs of responding. The Supreme Court recognized this authority in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978).

The proposed amendment is intended to make said authority explicit in the rule and to compel courts to consider this as an alternative to denying requested discovery or ordering discovery that places an undue burden and expense on the responding party.

The Committee Note clarifies that the intent of the amendment is not to make cost-shifting the common practice and that the assumption should be that the responding party will bear the costs of responding to a discovery request.

Rule 26(d)(2)

The proposed amendments would add Rule 26(d)(2), Early Rule 34 Requests, which would allow a party to deliver Rule 34 document production requests to another party more than 21 days after that party has been served even though the Rule 26(f) conference has not occurred. Delivery would not be counted as service; the requests would be considered served at the first Rule 26(f) conference.  The current rule 26(d)(2) would be renumbered as 26(d)(3) and would add language allowing the parties to stipulate to case-specific sequences of discovery.

The Committee note explains that the amendment to Rule 26(d)(2) is intended to “facilitate focused discussion during the Rule 26(f) Conference.”

Public comments raised the concern that requests delivered before the Rule 26(f) conference could be “inappropriately broad.”  They also expressed some skepticism that parties would utilize early discovery requests; however, plaintiff’s attorneys apparently seemed more likely to take advantage of the newrule to provide notice of what should be discussed at the Rule 26(f) meeting.

Rule 34

Four amendments to Rule 34 are being proposed. First, Rule 34(b)(2)(A) would be amended to reference the new Rule 26(d)(2) early discovery requests and direct that if such a request is delivered, the response is due within 30 days after the parties’ first Rule 26(f) conference.

Second, Rule 34(b)(2)(B) would be amended to require that objections to Rule 34 requests “be stated with specificity.”

Third, language would also be added to Rule 34(b)(2) to reflect the common practice of producing copies of documents or Electronically Stored Information (ESI) rather than simply permitting inspection.

Finally, Rule 34(b)(2)(C) would be amended to provide “An objection must state whether any responsive materials are being withheld on the basis of that objection.”

The purpose of these amendments is to eliminate the following frequent problems in the production of documents and ESI: (1) the use of boilerplate objections that fail to produce any information about the true reason the party is objecting; (2) responses that state several objections, produce some information but do not state whether any other information is being withheld from discovery; and (3) responses which claim that information will be produced in “due course” but do not specify when the production will occur.