Use this At A Glance Guide to learn the Federal Rules of Civil Procedure that govern responses to requests for production in the United States District Courts. For more detailed information, including Local Rules, on responses to requests for production in a specific United States District Court, see the SmartRules Response to Request for Production guide for the court where your action is pending.
Response to Request for Production Rules
Responses
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.
Responding to Requests for ESI
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.
Failure to Timely Respond
Case law authority holds that failure to timely respond to a request for production waives all objections.
Objections
An objection to part of a request must specify the part and permit inspection of the rest.
Objections may include:
Relevancy (the request seeks information that is outside the scope of permissible discovery);
Privilege (the request seeks information that is protected by the attorney-client, work product, or other privilege);
Privacy (the request seeks information that is protected by an individual’s right of privacy);
Unduly burdensome and oppressive (the cost and time necessary to comply with the request are unfairly burdensome); and/or
That the request does not describe the documents or other items sought with reasonable particularity.
Items That Can Be Requested
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
To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Not Filed Until Used
The following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing:
Depositions,
Interrogatories,
Requests for documents or to permit entry upon land, and
Requests for admission.
Format of Documents
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.
Filing & Service
Responses must be served on all parties who have appeared in the action.
Unless by mutual agreement, the inspection may not be scheduled for a time sooner than thirty (30) days after the request is served, if personally served, and not sooner than thirty-three (33) days after service by mail.
Timing
It is accepted practice that parties propound discovery requests after the early meeting of counsel required by Rule 26(f). Federal Rules of Civil Procedure 33 (interrogatories), 34 (requests for production) and 36 (requests for admission) no longer explicitly provide that discovery may not be propounded until after the Rule 26(f) meeting.
Unless by mutual agreement, the inspection may not be scheduled for a time sooner than thirty (30) days after the request is served, if personally served, and not sooner than thirty-three (33) days after service by mail.
The time to respond may be shortened or extended as directed by the court, or agreed to in writing by the parties.
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.
The court must set a discovery cut-off date.
SmartRules Guides
SmartRules guides cover additional requirements including:
Local Rules & Procedures
Calculating Due Dates & Deadlines
Initial Disclosures
Early Rule 34 Requests
Sequence of Discovery
Scope of Discovery
Limitations in General
Limitations on Electronically Stored Information
Trial Preparation – Materials
Trial Preparation – Experts
Trial Preparation – Claiming Privilege
Signature Requirements & Sanctions
Originally published August 4, 2009