§34.6 Analysis

• Jurisdiction: Washington

§34.6 ANALYSIS

This section analyzes application of CR 34 and the corresponding federal rule.

(1)Request for production served only upon a party

CR 34(a) provides that a request for production may be served only upon parties to the litigation. CR 5(a) directs that copies of requests be served upon all parties to the litigation.

By contrast, parties may seek production or inspection and copying of books, documents, or tangible things belonging to nonparties pursuant to CR 45. Parties may also command that a nonparty permit inspection of premises, at a time and place specified in the subpoena. Although beyond the scope of this chapter, it should be noted that CR 45 does not specifically address discovery of electronically stored information. The CR 34 requirements may be instructive in that regard, however.

Comment: Sometimes a party attempts to circumvent the time requirements of CR 34 by serving a subpoena on another party pursuant to CR 45 This tactic violates the provisions of CR 34; however, a timely objection may be required to preserve the issue. Such an objection may be asserted by serving a written objection under CR 45(c)(2)(B) or bringing a motion for a protective order under CR 26(c). In most circumstances, the former is preferable because it prevents production of documents without court order.

PracticeTip: Because documents and many types of electronically stored information often provide an objective record not subject to the vagaries of human memory or an attorney's creative drafting, they can be an essential tool in the development and direction of your case Therefore, seek production of such information early in the litigation.

(2)Time, place, and manner of production

CR 34(b) requires that a request "specify a reasonable time, place, and manner of making the production and performing the related acts."

(a)Production in hard copy

As a practical matter, when responding to a document production request in hard copy (as opposed to in an electronic format), the responding party or its counsel ordinarily copies the responsive documents and then delivers copies of the documents to the requesting counsel's office. If the responsive documents are voluminous, the responding party may suggest a time when the requesting party may come to counsel's office, to the client's office, or to some other location to review and copy those items of interest.

Documents must be provided to a requesting party "as they are kept in the usual course of business" or organized and labeled to correspond with the categories in the request. CR 34(b)(3)(F)(i). There is limited case law in Washington that addresses this topic. Federal authority indicates, however, that the purpose of the rule is to "facilitate production of records in a useful manner and to minimize discovery costs; thus it is reasonable to require litigants who do not create and/or maintain records in a 'routine and repetitive' manner to organize the records in a usable fashion prior to producing them." S.E.C. v. Collins &Aikman Corp., 256 F.R.D. 403,413 (S.D.N.Y. 2009). Generally, "[t]he responding party can choose whether to produce the documents as they are kept in the usual course or label and organize them." Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., No. 08-cv-12486, 2009 WL 1803216, at *2 (E.D. Mich. June 16, 2009). "The party arguing that it produced documents as they were kept in the usual course of business bears the burden of showing that the documents were so kept." Id. (citing Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 618 (D. Kan. 2005)). "A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files." Id. (citing Nolan, LLC v. TDC Int'l Corp., No. 06-CV-14907-DT, 2007 WL 3408584, at *2 (E.D. Mich. Nov. 15, 2007)).

Practice Tip: If documents have been removed from their usual organizational structure for purposes of storage, a court may find that they are no longer kept in the usual course of business and labeling may therefore be required. See, e.g., Ak-Chin Indian Cmty. v. United States, 85 Fed. CI. 397 (Fed. CI. 2009).

Practice Tip: "Where a producing party's activities are not 'routine and repetitive' such as to require a well-organized record-keeping system—in other words when the records do not result from an 'ordinary course of business'—the party must produce documents according to the sole remaining option under Rule 34: 'organizefd] and labelfed]... to correspond to the categories in the request." Collins, 256 F.R.D. at 412-13.

(b)Written responses

Written responses to requests for production under CR 34 must be served within 30 days after service of the requests, except that a defendant need not respond to any requests sooner than 40 days after service of the summons and complaint. The response must state either that the request will be permitted as requested as to each item or category or state reasons why the responding party objects to the request. If the parties are unable to agree on a time, place, and/ or manner of production, the responding party bears the burden of serving and filing a written objection or seeking a protective order pursuant to CR 26(c). If a written response is not served within the time period set forth in the rule, the right to object or seek a protective order may be waived.

Practice Tip: Be sure to review applicable local rules concerning requests for production, discovery objections, and protective orders before the deadline for responding to discovery expires.

(c)Producing electronically stored information

As was noted in §34.3, above, the 2013 amendments to CR 34 introduced, for the first time, the concept of "electronically stored information." The term "electronically stored information" was introduced into the Federal Rules of Civil Procedure in 2006 in recognition of the fact that such information does not always fall within the traditional concept of a "document."

Practice Tip: The term "electronically stored information" is broadly applicable to all types and categories of electronic information, including websites, social media, and voice mail, to name a few. "[Electronically stored information] includes any machine-readable electronic information stored on physical media from which it can be retrieved ...." The Sedona Conference®, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production 11 (Jonathan M. Redgrave et al. eds., 2d ed. 2007). "Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments." FED. R. CIV P. 34, Committee Notes on Rules—2006 Amendment, Subdivision (a). It is important, therefore, to "think outside the box" to ensure you have considered all possible repositories of potentially responsive data when responding to a discovery request. E.g., Katiroll Co. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011WL3583408 (D.N.J. Aug.3,2011)(social networking messages/comments); Passlogix, Inc. v. 2FA Tech., LLC, 708 F.Supp.2d 378 (S.D.N.Y. 2010) (Skype messages); Wilson v. Thorn Energy, LLC, No. 08 Civ. 9009(FM), 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) (flash drives); Se. Meek. Servs., Inc. v. Brody, 657 F.Supp.2d 1293 (M.D. Fla. 2009) (personal devices, e.g., Blackberries); Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., No. 05-4896 (PGS), 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (web pages).

FED. R. CIV P. 34 was amended "to confirm that discovery of electronically stored information stands on equal footing with discovery of paper documents" and to clarify that "Rule 34 applies to information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined." FED. R. CIV P. 34, Committee Notes on Rules—2006 Amendment, Subdivision (a). The same is now true for CR 34.

PracticeTip: Because of the similarities between CR 34 and FED. R. CIV P.34, the advisory committee's notes to the federal rule may be of substantial assistance in better understanding the purpose and requirements of the rule. Federal case law may also provide sage guidance. See Beal v. City of Seattle, 134 Wn.2d 769, 777, 954P.2d237 (1998) ("Where a state rule parallels a federal rule, analysis of the federal rule may be looked to for guidance, though such analysis will be followed only if the reasoning is found to be persuasive.").

Note: The Sedona Conference®, referred to above, is "a nonprofit legal policy research and educational organization which sponsors Working Groups on cutting-edge issues of law. The Working Group on Electronic Document Production is comprised of judges, attorneys, and technologists experienced in electronic discovery and document management matters." Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 643 n.8 (D. Kan. 2005). As part of their import ant work, the Sedona Conference® frequently publishes on topics related to electronic discovery. Those publications are available for free download at http: 11 www.thesedonaconference.org .

Establishing the format of production

A requesting party may choose the format in which electronically stored information will be produced and should indicate that choice specifically in its requests. If a requesting party seeks the production of metadata, it should also be specifically indicated to avoid disagreement later on. Trading Techs. Int'l, Inc. v. GL Consultants, Inc., Nos. 05 C 4120, 05 C 5164, 2013 WL 3866474, at *2 (N.D. 111. July 25, 2013) ("[P]lain tiff could have specified the...