Chapter §34.4 Comparison With Federal Rule

• Jurisdiction: Washington

§34.4 COMPARISON WITH FEDERAL RULE

There are few differences between CR 34 and FED. R. CIV P. 34. Generally the scope of discovery is the same, as are the procedures for seeking discovery and responding to requests. There are three substantive exceptions: (1) CR 34 specifically addresses the appropriate time for service, and the federal rule does not; (2) CR 34 provides that parties shall respond to a request "within 30 days after the service of the request"—which parallels the federal rule—but also states that "a defendant may serve a response within 40 days after service of the summons and complaint upon that defendant"—which is unique to the Washington rule; and (3) CR 34 specifically makes clear that "[f]or any failure to make discovery under [the] rule, the requesting party may move for an order as provided under rule 37"—the federal rule has no similar provision. CR 34(b)(3)(A), (E).

Arguably less substantive are the subtle differences in some of the language in each rule. For example, CR 34 requires a requesting party to "set forth the items to be produced either by individual item or by category, and describe each item and category with reasonable particularity." CR 34(b)(2)(A). FED. R. CIV P. 34, although substantially similar to CR 34, states that a request "must describe with reasonable particularity each item or category of items to be inspected." FED. R. CIV P. 34(b)(1)(A). Similarly, CR 34(b)(3)(F)(i) states that "things, electronically stored information, or documents" produced for inspection must be produced as kept "in the usual course of business" or organized as prescribed by the rule, while the corresponding federal rule, FED. R. CIV P. 34(b)(2)(E)(i), discusses only "documents." Although such differences may have minimal practical effect, it is nonetheless important to note that the rules are not identical.

Comment: Just prior to publication of this chapter, an opinion was issued in the District of New Mexico addressing FED. R. CIV P. 34's requirements for the production of documents and electronically stored information in which the court concluded that "the term 'documents' in rule 34(b)(2)(E)(i) does not include ESI and, thus, the rule 34(b)(2)(E)(i) requirement that documents be produced either in the usual course of

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