Federal document requests: 30 days, and the objection that has to say what you're holding back

Rule 34 governs documents, electronically stored information, tangible things and entry onto land. Two of its requirements changed how federal document discovery is written, and both are easy to overlook.

What can be requested

FRCP 34(a): a party may serve a request within Rule 26(b)'s scope:

(1) to produce and permit inspection, copying, testing or sampling of designated documents or ESI — "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;

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, to inspect, measure, survey, photograph, test or sample it.

The material must be in the responding party's possession, custody, or control — a phrase that reaches documents a party has the legal right to obtain, not merely those physically held.

The request itself has requirements

FRCP 34(b)(1): the request

(A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically stored information is to be produced.

Specifying the ESI form in the request is optional but strategically important — see below.

Thirty days, with one variation

FRCP 34(b)(2)(A): the responding party must respond in writing within 30 days after being served — or, if the request was delivered early under Rule 26(d)(2), within 30 days after the parties' first Rule 26(f) conference. A shorter or longer time may be stipulated under Rule 29 or ordered by the court.

That second branch is the counterpart to the early-request provision covered in the guide on what happens after you answer: a request delivered 21 days after service isn't answerable until the conference has happened.

Every objection must say whether anything is being withheld

FRCP 34(b)(2)(C):

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.

This is the provision that ended boilerplate as a viable strategy. Objecting that a request is overbroad, and then producing everything anyway, is fine — but the response has to say so. Objecting and quietly withholding without saying so does not comply.

FRCP 34(b)(2)(B) sets the shape of the response: for each item or category, 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." A party may state it will produce copies instead of permitting inspection — and then "the production must be completed no later than the time for inspection specified in the request or another reasonable time specified in the response."

So a response promising production must commit to a date. "Documents will be produced at a mutually convenient time" doesn't meet that requirement.

The ESI form rules

FRCP 34(b)(2)(D): the response may object to a requested form for producing ESI. If the responding party objects to the requested form — or if no form was specified in the request — the party "must state the form or forms it intends to use."

FRCP 34(b)(2)(E) then sets the defaults, unless stipulated or ordered otherwise:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.

Point (iii) is why specifying the form in the request matters. Ask for native files with metadata up front, or you may receive a reasonably usable form — often TIFF or PDF — and have no right to a second production in native format.

Nonparties go through Rule 45

FRCP 34(c): "As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection."

Rule 34 reaches parties; Rule 45 reaches everyone else, with its own 14-day objection window and place-of-compliance limits. The subpoena guide covers it.

If the response is inadequate or absent

There is no separate federal motion for "further responses." Rule 37(a)(4) folds them together: "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond."

So the route is a Rule 37(a) motion to compel, with its mandatory conferral certification and Rule 37(a)(5) fee shifting — including where the documents arrive only after the motion was filed.

Lost ESI has its own rule

Rule 37(e) applies where ESI that should have been preserved is lost because a party failed to take reasonable steps, and it cannot be restored or replaced. On a finding of prejudice, the court may order measures no greater than necessary to cure it. Only on finding the party acted with the intent to deprive another party of the information's use may the court presume the lost information was unfavorable, so instruct the jury, or dismiss or enter default.

Preservation obligations are why Rule 26(f)(2) requires the parties to discuss "any issues about preserving discoverable information" at the very first conference.

A short checklist

Serving requests:

1. Describe each category with reasonable particularity — Rule 34(b)(1)(A).
2. Specify the ESI form — Rule 34(b)(2)(E)(iii) means you may not get a second bite.
3. Specify a reasonable time, place and manner.

Responding:

1. Calendar 30 days — or 30 days from the Rule 26(f) conference for an early request.
2. For each request, permit inspection or object with specific grounds.
3. State, for each objection, whether anything is being withheld because of it.
4. If you're producing instead of permitting inspection, commit to a completion date.
5. If you object to the requested ESI form, or none was specified, state the form you'll use.
6. Produce as kept in the usual course, or labeled to the request's categories.

Where these rules live

• Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Rule 29 — Stipulations About Discovery Procedure
• Rule 33 — Interrogatories to Parties
• Rule 34 — Producing Documents, ESI, and Tangible Things
• Rule 37 — Failure to Make Disclosures or to Cooperate
• Rule 45 — Subpoena

Many districts have their own ESI protocols and standing orders. This page explains what the rules say. It isn't legal advice.