Currently under Federal Rules of Civil Procedure Rule 34, a document request cannot be served on an opposing party until the attorneys have met and “conferred as required by Rule 26(f)” with only a few exceptions. When the lawyers meet, “the parties must consider the nature and basis of their claims and defenses and the possibilities of promptly settling or resolving the case; make or arrange for disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”
Under the new rules approved by the U.S. Supreme Court on April 29, 2015 as amended and referred to Congress, the rules will become effective on Dec. 1, 2015, parties will be permitted to deliver Rule 34 document request 21 days after service of summons and complaint. Specifically, Rule 26(d)(2) will be added, which provides as follows:
(d) TIMING AND SEQUENCE OF DISCOVERY
(2) Early Rule 34 Requests.
(A) Time to deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
(i) To that party by any other party, and
(ii) By that party to any plaintiff or to any other party that has been served.
(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
Therefore, under the new Rule 34, document request may be delivered to a party before the attorneys have had an opportunity to meet and talk about discovery. This could be before any responsive pleadings have been served. The term delivery is different than service. A Rule 34 request will be considered served at the first Rule 26(f) conference and responses will be due 30 day after that initial conference.
Rule 34 expressly requires document requests to be “within the scope of Rule 26(b),” meaning that parties may request “discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” However, with the revisions and amendment, the scope of Rule 26(b) will be amended, permitting discovery of non-privileged matters that are relevant “and proportional to the needs of the case” to determine whether a matter is proportional, Rule 26(b)(1) will include a list of these factors:
The importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether, the burden or expense of the proposed discovery outweighs its likely benefit.
The idea of early document request is designed to speeding up the early stages of litigation. This would hypothetically facilitate discussion between the parties at the Rule 26(f) meeting and prepare the parties to begin discovery conversations earlier. However, not all lawyers agree that permitting early document requests will actually further the goals the amendments were intended to achieve.
Early delivery of document requests is not universally supported by lawyers and judges. At least one U.S. Department of Justice attorney has reservations about the amended Rule 34 with respect to Electronically Stored Information (ESI). Earlier requests for ESI may thwart discussions about search methods, search terms and other issues that would insure the benefits of ESI are proportionate to the stakes in the litigation.
With the concerns for early document requests, lawyers are cautioned that not every case as a matter of course would prompt early use of amended Rule 34. In some cases, early document requests may complicate the process rather than facilitate the early recognition of core issues of a lawsuit.
One obvious pitfall of early document request might be the overlooking of the preservation of important documents. In other words, because the lawyers are taken up by the need for the seemingly needed early requests for documents, focus on document preservation may be missed. That is to say that in some cases, document requests may not have included documents that need to be preserved. As a result, pertinent or relevant documents or other ESI may be destroyed because the parties chose not to exhaust the topic of preservation before dealing with production requests.
In addition, lawyers representing different parties in different kinds of lawsuits need to consider the party their serving early document requests. If the defendant in a trucking accident case is used to receiving earlier requests for documents in similar trucking accident cases, then it may be wise to persist with early document requests as long as the important issues of preservation of the “black box,” driver log books, videotapes and other easily disposed materials should be preserved.
Finally, it would be wise when the amended Rule 34 takes effect to evaluate federal cases on a case-by-case analysis to determine whether there are benefits or not in using amended Rule 34.
Federal Rules of Civil Procedure 26(f)(2), are to be amended setting forth the topics related to ESI.
Kreisman Law Offices has been handling interstate trucking accident cases, federal litigation and commercial litigation for individuals and families who have been injured or killed by the negligence of another for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Bedford Park, Melrose Park, Morton Grove, Northfield, Northlake, Oak Lawn, Oak Park, Evergreen Park, Evanston, Elk Grove Village, Crestwood, Crete, Des Plaines, Dolton, East Hazel Crest, Elgin, Joliet, Waukegan, Berkeley, Brookfield, Hoffman Estates, Robbins, Winnetka, Schiller Park, South Barrington, South Chicago Heights, Chicago (Garfield Park, Greek Town, Horner Park, Humboldt Park, Hyde Park, Jackson Park, Kenwood, Bucktown, Lincoln Square, South Loop), Blue Island and Harvey, Ill.
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