Rule 34.Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes

(2016)

Rule 34 was amended in 2016 to recognize the common practice of producing copies of documents rather than permitting inspection of the originals (Rule 34(b)(2)(C)(ii)). This amendment reflects a similar amendment to the Federal Rules of Civil Procedure effective in 2015.

The 2016 amendment further states that upon request, the producing party shall provide “all parties a fair opportunity to verify the copies by comparison with the originals.” This language, which is not part of the Federal Rules, reinforces the requesting party’s right to inspect the original documents under the existing language of Rule 34(a). To the extent that producing the original is deemed unduly burdensome or expensive, the producing party may seek a protective order under Rule 26(c). Such an order may restrict access to the original document, or may allow access upon payment of costs associated with production of the original. Rule 34(c) was also amended to add a cross-reference to Rule 45 (Rule 34(c)(2)). Rule 45 had been amended in 2015 to allow a “documents only” subpoena against a nonparty (Rule 45(d)).

(2014)

The 2014 amendments to Rule 34 were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26.

The title to Rule 34 has been changed to add a reference to "electronically stored information." The title to Rule 34 is now consistent with the title to Rule 34 of the Federal Rules of Civil Procedure.

The 2014 amendments made some stylistic changes in Rule 34(a) so as to conform the rule to the format set forth in Rule 34(a) of the Federal Rules of Civil Procedure. In addition, the phrase "or electronically stored information" has been added to Rule 34(a)(1)(A), also in conformity with the cognate federal rule.

Formatting and stylistic changes have been made in Rule 34(b), again modeled after Rule 34(b) of the Federal Rules of Civil Procedure, but no substantive changes were intended. Language has been added to Rule 34(b)(1) to the effect that a request for production "may specify the form in which electronically stored information is to be produced."

Rule 34(b)(2)(B) and (C), modeled after Federal Rule 34(b)(2)(D) and (E), have been added to deal with responding to a request for production of electronically stored information and the important aspect of the form for producing such information.

Issues surrounding the production of electronically stored information, including the format for production, should be discussed by the parties in their conference regarding electronically stored information, if there is one. See Rule 26(f)(2).

(1973)

Rule 34 copies Federal Rule 34, which in turn changed earlier Federal Rule 34 and S.J.C. Rule 3:15. Previously, a party seeking discovery of documents or objects was required to move for a court order compelling such discovery. Under Rule 34, the party seeking discovery need merely serve a request upon his opponent. Only if the opponent objects to the request must the discovering party obtain a court order.