406.04(c) Nature of Responses
Fed. R. Civ. P. 34(b)(2)(B) Responding to Each Item. 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.
Fed. R. Civ. P. 34(b)(2)(C) Objections. An objection to part of a request must specify the part and permit inspection of the rest.
Fed. R. Civ. P. 34(b)(2)(D) 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.
A response to a request for production of documents and things must state, with respect to each item or category of documents or things requested to be produced, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection must be stated. [ Note 1.] For any item or category of documents which is not subject to a stated objection, a proper response should state whether or not there are responsive documents and, if there are responsive documents, whether they will be produced or withheld on a claim of privilege. [ Note 2.] If accurate, a party may respond that the requested documents are not in existence (e.g., lost or destroyed or that the documents are not within its possession, custody, or control). [ Note 3.] If objection is made to only part of an item or category, the part must be specified. A party may object to a requested form of data production for electronically stored information. [ Note 4.] If no form for the electronically stored information is specified in the request, the party must state the form it intends to use. A party that produces documents for inspection must produce them as they are kept in the usual course of business, or must organize and label them to correspond with the categories in the request. [ Note 5.] A party that produces electronically stored information must produce the information in the form specified by the request, if no objection is made. It is contemplated that the parties will attempt to resolve such issues, i.e., the manner in which electronically stored information will be produced, during their discovery conference. [ Note 6.] If no specification is made as to form in the request, a party must produce the electronically stored information in the form in which it is ordinarily maintained, or in a reasonably usable form. [ Note 7.] Aspects of ESI production other than form that should be discussed during the discovery conference, or when it becomes apparent that electronically stored information ("ESI") will be produced, include a protocol for identifying and segregating potentially responsive ESI, who should review the ESI to determine whether the production of particular documents or information would be appropriate, and methods of searching the ESI, such as the use of "keywords," to identify documents and information responsive to the discovery requests. [ Note 8.]
A party withholding responsive documents on the basis of a claim of privilege must "(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." [ Note 9.]
Fed. R. Civ. P. 26(b)(5) does not specify exactly how the party asserting privilege/protection must particularize its claim. The most common way is by using a privilege log, which identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document’s general subject matter. [ Note 10.]
It is generally inappropriate for a party to respond to requests for production by filing a motion attacking them, such as a motion to strike, a motion to suppress or a motion for a protective order. Rather, the party ordinarily should respond by indicating, with respect to those requests that it believes to be proper, that inspection and related activities will be permitted, and by stating reasons for objection with respect to those requests that it believes to be improper. See TBMP § 410.
For information regarding a party’s duty to supplement responses to requests for production, see TBMP § 408.03.
NOTES:
1. Fed. R. Civ. P. 34(b)(2)(B).
2. No Fear Inc. v. Rule, 54 USPQ2d 1551, 1555 (TTAB 2000).
3. Pioneer Kabushiki Kaisha v. Hitachi High Technologies America, Inc., 74 USPQ2d 1672, 1679 (TTAB 2005).
4. Fed. R. Civ. P. 34(b)(2)(D).
5. Fed. R. Civ. P. 34(b)(2)(E)(i); No Fear Inc. v. Rule, 54 USPQ2d 1551, 1556 (TTAB 2000) (party may not simply dump large quantities of documents containing responsive as well as unresponsive documents).
6. Fed. R. Civ. P. 26(f)(3)(c). See also Fed. R. Civ. P. 34 Advisory Committee’s note (2006 Amendment Rule 34, Subdivision (b)).
7. Fed. R. Civ. P. 34(b)(2)(E)(ii).
8. Frito-Lay North America Inc. v. Princeton Vanguard LLC, 100 USPQ2d 1904, 1905 (TTAB 2011).
9. Fed. R. Civ. P. 26(b)(5)(A)(i)-(ii).
10. Fed. R. Civ. P. 26(b)(5) Advisory committee notes (1993 amendment); see Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 264-65 (D. Md. 2008) (discussing form of privilege logs under Fed. R. Civ. P. 26(b)(5)).