34

New Rule 34: Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes.

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample 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, translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

(b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).

The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the party shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information – or if no form was specified in the request – the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

Unless the parties otherwise agree, or the court otherwise orders, (i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request; and (ii) if a request for electronically stored information does not specify the form or forms of production, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and (iii) a party need not produce the same electronically stored information in more than one form.

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Rules Committee Commentary to Rule 34

 Subdivision (a). As originally adopted, Rule 34
 focused on discovery of “documents” and “things.” In
 1970, Rule 34(a) 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(a) 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(a) 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(a)(1) is
 expansive and includes any type of information that is
 stored electronically. A common example often sought
 in discovery is electronic communications, such as e-
 mail. The rule covers — either as documents or as
 electronically stored information — information “stored
 in any medium,” to encompass future develop-ments
 in computer technology. Rule 34(a)(1) is intended to
 be broad enough to cover all current types of
 computer-based information, and flexible enough to
 encompass future changes and developments.

 References elsewhere in the rules to
 “electronically stored information” should be
 understood to invoke this expansive approach. A
 companion change is made to Rule 33(d), making it
 explicit that parties choosing to respond to an
 interrogatory by permitting access to responsive
 records may do so by providing access to electronically
 stored information. More generally, the term used in
 Rule 34(a)(1) appears in a number of other
 amendments, such as those to Rules 26(a)(1), 26(b)(2),
 26(b)(5)(B), 26(f), 34(b), 37(f), and 45. In each of these
 rules, electronically stored information has the same
 broad meaning it has under Rule 34(a)(1). References
 to “documents” appear in discovery rules that are not
 amended, including Rules 30(f), 36(a), and 37(c)(2).
 These references should be interpreted to include
 electronically stored information as circumstances
 warrant.
 
 The term “electronically stored information” is
 broad, but whether material that falls within this term
 should be produced, and in what form, are separate
 questions that must be addressed under Rules 26(b),
 26(c), and 34(b).

 The Rule 34(a) 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 501, 504-510 (1st Cir. 1989).

 Rule 34(a)(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(b)(2) and 26(c). 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(a) 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(a)(1) is further amended to make clear
 that tangible things must — like documents and land
 sought to be examined — be designated in the request.

 Subdivision (b). Rule 34(b) 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(b) is amended
 to ensure similar protection for electronically
 stored information.

 The amendment to Rule 34(b) 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(f)(3) 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(b), 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 requesting party is not satisfied with the
 form stated by the responding party, or if the
 responding party has objected to the form specified by
 the requesting party, the parties must meet and confer
 under Rule 37(a)(2)(B) in an effort to resolve the matter
 before the requesting party can file a motion to
 compel. If they cannot agree and the court resolves
 the dispute, the court is not limited to the forms
 initially chosen by the requesting party, stated by
 the responding party, or specified in this rule for
 situations in which there is no court order or party
 agreement.

 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(a)
 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 it 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(b)(2)(B).

 Whether or not the requesting party specified
 the form of production, Rule 34(b) provides that the
 same electronically stored information ordinarily need
 be produced in only one form.