§ 6-334.Producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes.

Current version (effective January 1, 2025)

COMMENTS TO § 6-334 [1] A party responding to requests for production or entry must state for each request whether it objects to the request or will honor the request. The original version of the rule implied (but did not explicitly state) that the responding party must first reproduce the request and then state its objection or response. The 2024 Amendments made the requirement explicit by adding the following sentence in subpart (c)(2)(B): “The responding party must reproduce each request and then state the party’s response to the request.” As a result, the format for responding to interrogatories, requests for documents, and requests for admission is the same. [2] It is easier to reproduce each request if the requests are served in an electronic format. Subpart (b) therefore requires the requesting party to provide the responding party with an electronic copy of the requests in a readily editable format if the responding party asks for such a copy. Comment [4] of the Comments on § 6-333 provides examples of what are and what are not readily editable formats. [3] Section 6-334 was promulgated at a time when documents were in paper form and complying with the request meant physically collecting the documents and making them available for the requesting party to inspect so that the party could decide which ones to photocopy. Therefore, the rule required the responding party to serve a response stating that (1) the party objected to the request or (2) the party would make the requested documents available for inspection. But as electronic documents began replacing paper documents, responding parties began providing documents in electronic form rather than making them available for inspection in paper form. In 2024, the rule was amended to bring the rule into conformity with the practice by giving the responding party the option of stating that it will produce the documents instead of making them available for inspection. The option appears in subpart (c)(2)(B). [4] Like a party objecting to interrogatories, a party objecting to a § 6-334 request must state the grounds for its objection and explain why the request is objectionable on those grounds. The requirement was added by the 2024 Amendments and appears in subpart (c)(2)(C). The reasons for the requirement are discussed in Comment [2] of the Comments on § 6-333. [5] Subpart (c)(2)(C) also provides that an objection is waived if the party fails to make the objection in a timely manner. Treating such a failure as a waiver, however, may sometimes be unduly harsh. The rule therefore gives the court the discretion to excuse the failure if there is good cause for doing so. [6] In the past, objecting parties have sometimes produced documents without specifically stating that they were withholding any documents on the basis of the objection. As a result, the requesting party might have believed that it received all the responsive documents when in fact it did not. To ensure that the requesting party knows whether any documents have been withheld, subpart (c)(2)(C)(i) now requires an objecting party to state whether any responsive materials are being withheld on the basis of the objection. The objecting party is not required to provide a detailed description of the documents; a simple statement that documents were withheld is sufficient to put the requesting party on notice that it may need to pursue the issue. [7] The original version of the rule included a subpart that recognized the possibility of filing an independent action against a nonparty for production of documents or tangible things or for entry onto land. The subpart was deleted by the 2024 Amendments because parties no longer need to file an independent action to obtain discovery from nonparties. Parties can proceed under § 6-334(A) to obtain discovery from nonparties for actions pending in Nebraska and under § 6-330(A) for actions pending in other states.

Prior version (in effect before January 1, 2025)

COMMENT TO RULE 34 This rule follows the federal rule and changes former Nebraska law, Neb. Rev. Stat. § 25-1267.39 (Repealed 1982), by allowing production by notice instead of by court order. Many such examinations can be handled without need of a motion and order, so the proposal eliminates unnecessary steps. Rule 37 still allows a party to seek an order if that step is necessary.