Rule 34.Producing documents and things; entry on land for inspection

Reporter’s Notes—2020 Amendment: Rule 34(b) is amended to add language from Federal Rule of Civil Procedure 34(b)(2)(B) permitting the production of copies of requested material, rather than their inspection. The language was added to the Federal Rule in 2015 “to reflect the common practice.” See Federal Advisory Committee’s Notes to 2015 Amendment. The present amendment, however, departs from the Federal Rule by providing that the requesting party may obtain inspection of the originals on a showing of “a reasonable need”—for example, a legibility issue not resolvable in a copy.

Reporter’s Notes—2018 Amendment: Rule 34(b) is amended to change its 45-day time period to 42 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—2017 Amendment: Rule 34(b) is amended to adapt portions of amendments to F.R.C.P. 34(b)(2) effective December 1, 2015. The amendment requires the grounds for objection to be stated specifically consistent with the requirement that an objection has to state whether materials are being withheld in order to “facilitate an informed discussion of the objection.” Federal Advisory Committee’s Note to 2015 amendments of F.R.C.P. 34(b)(2)(C). A provision in the federal rule permitting a party to produce copies of documents or electronically stored information in lieu of inspection has not been adopted because it permits the party to avoid actual inspection in a situation where actual inspection might be important.

Reporter’s Notes—2009 Amendment: V.R.C.P. 34 is amended as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendment of V.R.C.P. 26. The present amendment is identical to the 2006 amendments of F.R.C.P. 34. The amendment of V.R.C.P. 34(a) is intended “to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents” and to make clear that a request for “documents” that does not differentiate paper documents and electronically stored information should be understood as including the latter. The scope of the term is meant to be expansive, including “any medium”—even those that may be developed in the future. The amendment also makes clear that paper or electronic documents may be tested or sampled, subject to protections available under V.R.C.P. 26(b)(1) and (c), and that tangible things to be produced must be “designated.” See Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 34(a). Amended V.R.C.P. 34(b) subjects electronically stored information to requirements comparable to those for all documents that they be produced as kept in the usual course of business or “in a reasonably usable form.” The purpose is “to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party.” Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 34(b). Although the requesting party may specify a form or forms for the production of electronically stored information to facilitate discovery, that party need not do so. If no specific form is requested, or the responding party objects to the requested form, that party must state the form it intends to use in order to permit the parties to resolve disputes about the form before production begins. See, generally, Advisory Committee’s Note, supra.

Reporter’s Notes—1995 Amendment: Rule 34 is amended for consistency with the simultaneous adoption of a completely revised Rule 45 based on a 1991 amendment to Federal Rule 45. That rule now contains detailed provisions for obtaining production from nonparties by subpoena. See Reporter’s Notes to 1995 Amendment of V.R.C.P. 45. Accordingly, the present amendment eliminates all language in Rule 34 pertaining to nonparty production and makes clear that the rule, now virtually identical to Federal Rule 34, applies only to production from parties. Rule 45 will be the exclusive means of obtaining production from nonparties.

Reporter’s Notes—1985 Amendment: Rule 34(b) is amended to require that responses to requests to produce or to enter land or property repeat the request involved before the response. The requirement aids the court and the proponent of the request. See Reporter’s Notes—1985 Amendment to Rule 33. This amendment will also apply in district court. See District Court Civil Rule 34.

Reporter’s Notes—1982 Amendment: Rule 34(b) is amended as part of the series of amendments to the discovery rules following the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1982 Amendments to Rule 26. The amendment requires a party who produces documents for inspection to produce them as they are kept in the usual course of business or to organize and label them to correspond with the request. This prevents a party from mixing critical documents with others in the hope of obscuring their significance. See American Bar Association, Report of the Section of Litigation Special Committee for the Study of Discovery Abuse 22 (App. Draft 1977).

Reporter’s Notes: This rule carries forward 12 V.S.A. § 1262 (now superseded), with important changes made in the 1970 federal amendments. The Vermont statute was virtually identical to former Federal Rule 34, with the major difference that under the statute production could be had from nonparties as well as parties. Although production is also available from nonparties by subpoena duces tecum under Rule 45(b), (d), in conjunction with a deposition taking, the broader statutory provision has been retained in Rule 34(a) as a convenient and desirable device, and mechanical changes to accommodate the difference have been made in Rules 34(b) and 37. In view of these provisions, the rule contains no equivalent of Federal Rule 34(c), preserving the right to an independent action against a nonparty in the nature of an equitable bill of discovery for production. The requirements for production for nonparties differ from those for parties in that the notice must be served like a subpoena upon the nonparty and the notice to the nonparty must expressly provide for the payment of his reasonable expenses. See 7B McKinney’s N.Y.C.P.L.R. Rule 3120(b). Except with the assistance of a foreign court rendered as a matter of comity in accordance with Rule 37(a)(1), production or entry upon land may be obtained from a nonparty only when the notice is served and the land is located within the state. See Rule 45(e); Reporter’s Notes to Rules 45, 70. The most important change made by the rule is that the requirement of a showing of good cause for production has been eliminated in Rule 34(a). Examination of cases under former Federal Rule 34 shows that the courts applied this requirement to mean more than a showing of relevance and lack of privilege only in cases involving trial preparation materials. See federal Advisory Committee’s Notes to Rules 26(b)(3), 34(a), 48 F.R.D. 487, 500-501, 526-527. Accordingly, such materials are protected by the special showing required under Rule 26(b)(3). Production of other materials is limited only by the relevance and privilege standards of Rule 26(b)(1) and by the producing party’s right to obtain protection against harassment or undue burden under Rule 26(c). In effect, for other than trial preparation materials, the burden of invoking judicial sanction has shifted from the party seeking discovery to the party opposing it. The procedural changes made in Rule 34(b) are consistent with this shift of burden. The party seeking production no longer need obtain an order of court for it. He merely serves the request upon the person from whom production is sought in accordance with the rule. It is the responsibility of the latter person to respond in accordance with the rule or to state his objections to the request. If an objection is stated, the burden then shifts to the party seeking discovery to obtain an order under Rule 37(a) compelling production. The times for response, like those in Rule 33, are intended to assure that all parties and persons have representation. All of these changes, like those in Rule 33, are intended to permit the rule to operate extrajudicially as much as possible. Two other changes have been made in Rule 34(a). The definition of “document” has been expanded to make clear that it includes such items as electronic data compilations. The purpose for which entry upon land may be permitted now include testing and sampling of objects or operations thereon, such as a machine which has caused the injury in a negligence action. A form of Request for Production is included as Official Form 24 in the Appendix of Forms. 11 V.S.A. §§ 441-444, providing for production of corporate books and records on notice, should be treated as superseded for civil actions by Rule 34. Pending legislation (1971-H. 326, § 25) would amend § 441 to make clear that the statute is inapplicable to civil actions.