Making a Federal Case of the Duty to Produce Posted By Daniel Kaiser, Esq. on November 2, 2009
In our last post we had a look at the duty to Preserve. Leaving that pickle behind, today we’re moving on to the Duty to Produce. Or, as the Federal Rules of Civil Procedure would term it, the Duty to Disclose.
From a federal context, the duty to disclose has been bundled up nice and tidily in Fed. R. Civ. P. 26. Rule 26 should be examined and addressed early when facing a potential lawsuit because, absent an exemption, some of the required disclosures must be made from the very outset – “without awaiting a discovery request” – including contact details for those who are likely to have discoverable information.
More interesting than Fed. R. Civ. P. 26(a)’s coverage of disclosure’s “whos, whats, whens and hows” are the following subsections and their coverage of Discovery’s Scope and Limits. Although discovery’s potential scope is broad[1], the limitations are numerous including:
- [Upon proper showing,] A party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost . . . [that is, unless] the requesting party shows good cause . . . .[2]
- The court must limit discovery’s frequency or extent if it finds requests to be unreasonably cumulative or duplicative, if another source would be less burdensome, if the requesting party had ample prior opportunity to obtain the information sought, and if burden or expense outweighs the requested information’s likely benefit.[3]
- Both information that has been withheld from disclosure and information that has been produced may be subject to a claim of privilege or of protection as trial-preparation material.[4] (Refer to Fed. R. Evid. 502 for specific provisions related to privilege and work product.)
It’s important to note that these duties apply even to those who don’t have a pan on the fire. Fed. R. Civ. P. 34(c), citing Rule 45, points out that even “a nonparty may be compelled to produce documents . . . or to permit an inspection.”
Production format issues seem to have been hammered in the rule book and can be found repeated through Rules 26, 34 and 45. The Advisory Committee’s comment on this issue points out that:
- The rule does not require a party to produce [ESI] in the form in which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.[5]
[1] See Fed. R. Civ. P. 26(b)(1).
[2] Fed. R. Civ. P. 26(b)(2)(B).
[3] Fed. R. Civ. P. 26(b)(2)(C).
[4] Fed. R. Civ. P. 26(b)(5).
[5] Fed. R. Civ. P. 34, Advisory Committee’s Note to the 2006 Amendment.
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