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 with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

Fed. R. Civ. P. 34(b)(2)(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. 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.

Fed. R. Civ. P. 37(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

  • (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
  • (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
    • (A) presume that the lost information was unfavorable to the party;
    • (B) instruct the jury that it may or must presume the information was unfavorable to the party; or
    • (C) dismiss the action or enter a default judgment.

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 with specificity, as well as whether any responsive material is being withheld on the basis of that objection. [ 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 at a specified reasonable time 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 not redact portions of responsive documents on the ground that the non-disclosed information is not relevant or responsive where the information appears in a document that contains otherwise relevant or responsive information. [ Note 4.] A party may object to a requested form of data production for electronically stored information ("ESI"). [ Note 5.] If no form for the ESI 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 6.] A party that produces ESI 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 ESI will be produced, during their discovery conference. [ Note 7.] If no specification is made as to form in the request, a party must produce the ESI in the form in which it is ordinarily maintained, or in a reasonably usable form. [ Note 8.] Aspects of ESI production other than form that should be discussed during the discovery conference, or when it becomes apparent that 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 9.]

A party has an obligation to take reasonable steps to preserve ESI in the anticipation or conduct of litigation. [ Note 10.]. A duty to preserve electronically stored information arises not only during litigation but also extends to that period before litigation when a party reasonably should know that the evidence may be relevant to the litigation. [ Note 11.]. As amended on December 1, 2015, Fed. R. Civ. P. 37(e) provides that if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may, among other things: presume that the lost information was unfavorable to the party or dismiss the action or enter a default judgment. For more guidelines regarding the application of remedies in the event of lost ESI, see Fed. R. Civ. P. 37(e) Advisory Committee’s note (2015 Amendment Rule 37(e)).

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 12.]

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 13.]

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) and 34(b)(2)(C).

 2.   Fed. R. Civ. P. 34(b)(2)(B); 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.   Intex Recreation Corp. v. The Coleman Co., 117 USPQ2d 1799 (TTAB 2016).

 5.   Fed. R. Civ. P. 34(b)(2)(D).

 6.   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).

 7.   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)).

 8.   Fed. R. Civ. P. 34(b)(2)(E)(ii).

 9.   Frito-Lay North America Inc. v. Princeton Vanguard LLC, 100 USPQ2d 1904, 1905 (TTAB 2011).

 10.   See generally Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216-18 (S.D.N.Y. 2003) (discussing the obligation to preserve electronically stored information).

 11.   Leon v. IDX Systems Corp., 464 F.3d 951, 956 (9th Cir. 2006); Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001).

 12.   Fed. R. Civ. P. 26(b)(5)(A)(i)-(ii).

 13.   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)).