Chapter 3 - § 3.4 • REQUIREMENTS OF RULE 34

• Jurisdiction: Colorado

§ 3.4 • REQUIREMENTS OF RULE 34

§ 3.4.1—Scope of Document Production: "Documents"

Rule 34(a) of the Colorado Rules of Civil Procedure provides:

(a) Scope. Subject to the limitations contained in the Case Management Order, a party may serve on any other party a request:
(1) To produce and permit the party making the request, or someone acting on the party's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of C.R.C.P. 26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or
(2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of C.R.C.P. 26(b).

Although C.R.C.P. 34(a) does not specifically address the discovery of ESI, it is well established that a request for "documents" encompasses discovery of electronic documents in addition to paper documents. See, e.g., Stauffer v. Stegemann, 165 P.3d 713, 717 (Colo. App. 2006) ("The discovery order provided that all files and documents of the partnership, including both electronic and hard copy records, be made available by the parties for inspection and copying by the other party."); see also Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y 2002) ("Electronic documents are no less subject to disclosure than paper records."). Counsel ought to refrain from asserting that ESI was not produced because it was not specifically requested. In modern practice, the difference between "documents" and "electronically stored information" is a distinction without a difference.

F.R.C.P. 34(a) also permits parties to request to inspect, copy, test, or sample "any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form." F.R.C.P. 34(a). ESI can take many forms and versions, including but not limited to "[a]ll digital or analog electronic files, including 'deleted' files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by . . . computers and their backup media (e.g., other hard drives, backup tapes . . . ) or otherwise." Palgut v. City of Colorado Springs, 2006 U.S. Dist. LEXIS 102699, at *7, 2006 WL 3483442, at *3 (D. Colo. Nov...