Amendments To The Federal Rules Of Civil Procedure Rule 16 ...
AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE
Rule 16. Pretrial Conferences; Scheduling;
Management
* * * * *
(b) Scheduling and Planning. Except in categories of
actions exempted by district court rule as
inappropriate, the district judge, or a magistrate judge
when authorized by district court rule, shall, after
receiving the report from the parties under Rule 26(f)
or after consulting with the attorneys for the parties
and any unrepresented parties by a scheduling
conference, telephone, mail, or other suitable means,
enter a scheduling order that limits the time
(1) to join other parties and to amend the
pleadings;
(2) to file motions; and
(3) to complete discovery.
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The scheduling order also may include
(4) modifications of the times for disclosures under
Rules 26(a) and 26(e)(1) and of the extent of
discovery to be permitted;
(5) provisions for disclosure or discovery of
electronically stored information;
(6) any agreements the parties reach for asserting
claims of privilege or of protection as trial-
preparation material after production;
(7) the date or dates for conferences before trial, a
final pretrial conference, and trial; and
(8) any other matters appropriate in the
circumstances of the case.
The order shall issue as soon as practicable but in any
event within 90 days after the appearance of a
defendant and within 120 days after the complaint has
been served on a defendant. A schedule shall not be
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3
modified except upon a showing of good cause and by
leave of the district judge or, when authorized by local
rule, by a magistrate judge.
* * * * *
Committee Note
The amendment to Rule 16(b) is designed to
alert the court to the possible need to address the
handling of discovery of electronically stored
information early in the litigation if such discovery is
expected to occur. Rule 26(f) is amended to direct the
parties to discuss discovery of electronically stored
information if such discovery is contemplated in the
action. Form 35 is amended to call for a report to the
court about the results of this discussion. In many
instances, the court’s involvement early in the
litigation will help avoid difficulties that might
otherwise arise.
Rule 16(b) is also amended to include among the
topics that may be addressed in the scheduling order
any agreements that the parties reach to facilitate
discovery by minimizing the risk of waiver of privilege
or work-product protection. Rule 26(f) is amended to
add to the discovery plan the parties’ proposal for the
court to enter a case-management or other order
adopting such an agreement. The parties may agree to
various arrangements. For example, they may agree to
initial provision of requested materials without waiver
of privilege or protection to enable the party seeking
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production to designate the materials desired or
protection for actual production, with the privilege
review of only those materials to follow. Alternatively,
they may agree that if privileged or protected
information is inadvertently produced, the producing
party may by timely notice assert the privilege or
protection and obtain return of the materials without
waiver. Other arrangements are possible. In most
circumstances, a party who receives information under
such an arrangement cannot assert that production of
the information waived a claim of privilege or of
protection as trial-preparation material.
An order that includes the parties’ agreement
may be helpful in avoiding delay and excessive cost in
discovery. See Manual for Complex Litigation (4th)
§ 11.446. Rule 16(b)(6) recognizes the propriety of
including such agreements in the court’s order. The
rule does not provide the court with authority to enter
such a case-management or other order without party
agreement, or limit the court’s authority to act on
motion.
Rule 26. General Provisions Governing Discovery;
Duty of Disclosure
(a) Required Disclosures; Methods to Discover
Additional Matter.
(1) Initial Disclosures. Except in categories of
proceedings specified in Rule 26(a)(1)(E), or to the
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5
extent otherwise stipulated or directed by order, a
party must, without awaiting a discovery request,
provide to other parties:
(A) the name and, if known, the address and
telephone number of each individual likely to
have discoverable information that the disclosing
party may use to support its claims or defenses,
unless solely for impeachment, identifying the
subjects of the information;
(B) a copy of, or a description by category and
location of, all documents, electronically stored
information, and tangible things that are in the
possession, custody, or control of the party and
that the disclosing party may use to support its
claims or defenses, unless solely for
impeachment;
* * * * *
6 FEDERAL RULES OF CIVIL PROCEDURE
(b) Discovery Scope and Limits. Unless otherwise
limited by order of the court in accordance with these
rules, the scope of discovery is as follows:
* * * * *
(2) Limitations.
(A) By order, the court may alter the limits in
these rules on the number of depositions and
interrogatories or the length of depositions
under Rule 30. By order or local rule, the court
may also limit the number of requests under
Rule 36.
(B) A party need not provide discovery of
electronically stored information from sources
that the party identifies as not reasonably
accessible because of undue burden or cost. On
motion to compel discovery or for a protective
order, the party from whom discovery is sought
FEDERAL RULES OF CIVIL PROCEDURE
7
must show that the information is not
reasonably accessible because of undue burden
or cost. If that showing is made, the court may
nonetheless order discovery from such sources if
the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C).
The court may specify conditions for the
discovery.
(C) The frequency or extent of use of the
discovery methods otherwise permitted under
these rules and by any local rule shall be limited
by the court if it determines that: (i) the
discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other
source that is more convenient, less
burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity by
8 FEDERAL RULES OF CIVIL PROCEDURE
discovery in the action to obtain the information
sought; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit,
taking into account the needs of the case, the
amount in controversy, the parties’ resources,
the importance of the issues at stake in the
litigation, and the importance of the proposed
discovery in resolving the issues. The court may
act upon its own initiative after reasonable
notice or pursuant to a motion under Rule 26(c).
* * * * *
(5) Claims of Privilege or Protection of Trial-
Preparation Materials.
(A) Information Withheld. When a party
withholds information otherwise discoverable
under these rules by claiming that it is
privileged or subject to protection as trial-
FEDERAL RULES OF CIVIL PROCEDURE
9
preparation material, the party shall make the
claim expressly and shall describe the nature of
the documents, communications, or things not
produced or disclosed in a manner that, without
revealing information itself privileged or
protected, will enable other parties to assess the
applicability of the privilege or protection.
(B) Information Produced. If information is
produced in discovery that is subject to a claim
of privilege or of protection as trial-preparation
material, the party making the claim may notify
any party that received the information of the
claim and the basis for it. After being notified, a
party must promptly return, sequester, or
destroy the specified information and any copies
it has and may not use or disclose the
information until the claim is resolved. A
10 FEDERAL RULES OF CIVIL PROCEDURE
receiving party may promptly present the
information to the court under seal for a
determination of the claim. If the receiving party
disclosed the information before being notified, it
must take reasonable steps to retrieve it. The
producing party must preserve the information
until the claim is resolved.
* * * * *
(f) Conference of Parties; Planning for Discovery.
Except in categories of proceedings exempted from
initial disclosure under Rule 26(a)(1)(E) or when
otherwise ordered, the parties must, as soon as
practicable and in any event at least 21 days before a
scheduling conference is held or a scheduling order is
due under Rule 16(b), confer to consider the nature
and basis of their claims and defenses and the
possibilities for a prompt settlement or resolution of
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11
the case, to make or arrange for the disclosures
required by Rule 26(a)(1), to discuss any issues
relating to preserving discoverable information, and to
develop a proposed discovery plan that indicates the
parties’ views and proposals concerning:
(1) what changes should be made in the timing,
form, or requirement for disclosures under Rule
26(a), including a statement as to when disclosures
under Rule 26(a)(1) were made or will be made;
(2) the subjects on which discovery may be
needed, when discovery should be completed, and
whether discovery should be conducted in phases
or be limited to or focused upon particular issues;
(3) any issues relating to disclosure or discovery of
electronically stored information, including the form
or forms in which it should be produced;
12 FEDERAL RULES OF CIVIL PROCEDURE
(4) any issues relating to claims of privilege or of
protection as trial-preparation material, including
— if the parties agree on a procedure to assert such
claims after production — whether to ask the court
to include their agreement in an order;
(5) what changes should be made in the
limitations on discovery imposed under these rules
or by local rule, and what other limitations should
be imposed; and
(6) any other orders that should be entered by the
court under Rule 26(c) or under Rule 16(b) and (c).
* * * * *
Committee Note
Subdivision (a). Rule 26(a)(1)(B) is amended
to parallel Rule 34(a) by recognizing that a party must
disclose electronically stored information as well as
documents that it may use to support its claims or
defenses. The term “electronically stored information”
has the same broad meaning in Rule 26(a)(1) as in
Rule 34(a). This amendment is consistent with the
1993 addition of Rule 26(a)(1)(B). The term “data
FEDERAL RULES OF CIVIL PROCEDURE
13
compilations” is deleted as unnecessary because it is a
subset of both documents and electronically stored
information.
Subdivision (b)(2). The amendment to Rule
26(b)(2) is designed to address issues raised by
difficulties in locating, retrieving, and providing
discovery of some electronically stored information.
Electronic storage systems often make it easier to
locate and retrieve information. These advantages are
properly taken into account in determining the
reasonable scope of discovery in a particular case. But
some sources of electronically stored information can
be accessed only with substantial burden and cost. In
a particular case, these burdens and costs may make
the information on such sources not reasonably
accessible.
It is not possible to define in a rule the
different types of technological features that may affect
the burdens and costs of accessing electronically
stored information. Information systems are designed
to provide ready access to information used in regular
ongoing activities. They also may be designed so as to
provide ready access to information that is not
regularly used. But a system may retain information
on sources that are accessible only by incurring
substantial burdens or costs. Subparagraph (B) is
added to regulate discovery from such sources.
Under this rule, a responding party should
produce electronically stored information that is
relevant, not privileged, and reasonably accessible,
subject to the (b)(2)(C) limitations that apply to all
14 FEDERAL RULES OF CIVIL PROCEDURE
discovery. The responding party must also identify, by
category or type, the sources containing potentially
responsive information that it is neither searching nor
producing. The identification should, to the extent
possible, provide enough detail to enable the
requesting party to evaluate the burdens and costs of
providing the discovery and the likelihood of finding
responsive information on the identified sources.
A party’s identification of sources of
electronically stored information as not reasonably
accessible does not relieve the party of its common-law
or statutory duties to preserve evidence. Whether a
responding party is required to preserve unsearched
sources of potentially responsive information that it
believes are not reasonably accessible depends on the
circumstances of each case. It is often useful for the
parties to discuss this issue early in discovery.
The volume of — and the ability to search —
much electronically stored information means that in
many cases the responding party will be able to
produce information from reasonably accessible
sources that will fully satisfy the parties’ discovery
needs. In many circumstances the requesting party
should obtain and evaluate the information from such
sources before insisting that the responding party
search and produce information contained on sources
that are not reasonably accessible. If the requesting
party continues to seek discovery of information from
sources identified as not reasonably accessible, the
parties should discuss the burdens and costs of
accessing and retrieving the information, the needs
that may establish good cause for requiring all or part
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15
of the requested discovery even if the information
sought is not reasonably accessible, and conditions on
obtaining and producing the information that may be
appropriate.
If the parties cannot agree whether, or on
what terms, sources identified as not reasonably
accessible should be searched and discoverable
information produced, the issue may be raised either
by a motion to compel discovery or by a motion for a
protective order. The parties must confer before
bringing either motion. If the parties do not resolve
the issue and the court must decide, the responding
party must show that the identified sources of
information are not reasonably accessible because of
undue burden or cost. The requesting party may need
discovery to test this assertion. Such discovery might
take the form of requiring the responding party to
conduct a sampling of information contained on the
sources identified as not reasonably accessible;
allowing some form of inspection of such sources; or
taking depositions of witnesses knowledgeable about
the responding party’s information systems.
Once it is shown that a source of
electronically stored information is not reasonably
accessible, the requesting party may still obtain
discovery by showing good cause, considering the
limitations of Rule 26(b)(2)(C) that balance the costs
and potential benefits of discovery. The decision
whether to require a responding party to search for
and produce information that is not reasonably
accessible depends not only on the burdens and costs
of doing so, but also on whether those burdens and
16 FEDERAL RULES OF CIVIL PROCEDURE
costs can be justified in the circumstances of the case.
Appropriate considerations may include: (1) the
specificity of the discovery request; (2) the quantity of
information available from other and more easily
accessed sources; (3) the failure to produce relevant
information that seems likely to have existed but is no
longer available on more easily accessed sources; (4)
the likelihood of finding relevant, responsive
information that cannot be obtained from other, more
easily accessed sources; (5) predictions as to the
importance and usefulness of the further information;
(6) the importance of the issues at stake in the
litigation; and (7) the parties’ resources.
The responding party has the burden as to
one aspect of the inquiry — whether the identified
sources are not reasonably accessible in light of the
burdens and costs required to search for, retrieve, and
produce whatever responsive information may be
found. The requesting party has the burden of
showing that its need for the discovery outweighs the
burdens and costs of locating, retrieving, and
producing the information. In some cases, the court
will be able to determine whether the identified
sources are not reasonably accessible and whether the
requesting party has shown good cause for some or all
of the discovery, consistent with the limitations of Rule
26(b)(2)(C), through a single proceeding or
presentation. The good-cause determination, however,
may be complicated because the court and parties may
know little about what information the sources
identified as not reasonably accessible might contain,
whether it is relevant, or how valuable it may be to the
litigation. In such cases, the parties may need some
FEDERAL RULES OF CIVIL PROCEDURE
17
focused discovery, which may include sampling of the
sources, to learn more about what burdens and costs
are involved in accessing the information, what the
information consists of, and how valuable it is for the
litigation in light of information that can be obtained
by exhausting other opportunities for discovery.
The good-cause inquiry and consideration of
the Rule 26(b)(2)(C) limitations are coupled with the
authority to set conditions for discovery. The
conditions may take the form of limits on the amount,
type, or sources of information required to be accessed
and produced. The conditions may also include
payment by the requesting party of part or all of the
reasonable costs of obtaining information from sources
that are not reasonably accessible. A requesting
party’s willingness to share or bear the access costs
may be weighed by the court in determining whether
there is good cause. But the producing party’s
burdens in reviewing the information for relevance and
privilege may weigh against permitting the requested
discovery.
The limitations of Rule 26(b)(2)(C) continue to
apply to all discovery of electronically stored
information, including that stored on reasonably
accessible electronic sources.
Subdivision (b)(5). The Committee has
repeatedly been advised that the risk of privilege
waiver, and the work necessary to avoid it, add to the
costs and delay of discovery. When the review is of
electronically stored information, the risk of waiver,
and the time and effort required to avoid it, can
18 FEDERAL RULES OF CIVIL PROCEDURE
increase substantially because of the volume of
electronically stored information and the difficulty in
ensuring that all information to be produced has in
fact been reviewed. Rule 26(b)(5)(A) provides a
procedure for a party that has withheld information on
the basis of privilege or protection as trial-preparation
material to make the claim so that the requesting
party can decide whether to contest the claim and the
court can resolve the dispute. Rule 26(b)(5)(B) is
added to provide a procedure for a party to assert a
claim of privilege or trial-preparation material
protection after information is produced in discovery in
the action and, if the claim is contested, permit any
party that received the information to present the
matter to the court for resolution.
Rule 26(b)(5)(B) does not address whether the
privilege or protection that is asserted after production
was waived by the production. The courts have
developed principles to determine whether, and under
what circumstances, waiver results from inadvertent
production of privileged or protected information. Rule
26(b)(5)(B) provides a procedure for presenting and
addressing these issues. Rule 26(b)(5)(B) works in
tandem with Rule 26(f), which is amended to direct the
parties to discuss privilege issues in preparing their
discovery plan, and which, with amended Rule 16(b),
allows the parties to ask the court to include in an
order any agreements the parties reach regarding
issues of privilege or trial-preparation material
protection. Agreements reached under Rule 26(f)(4)
and orders including such agreements entered under
Rule 16(b)(6) may be considered when a court
determines whether a waiver has occurred. Such
FEDERAL RULES OF CIVIL PROCEDURE
19
agreements and orders ordinarily control if they adopt
procedures different from those in Rule 26(b)(5)(B).
A party asserting a claim of privilege or
protection after production must give notice to the
receiving party. That notice should be in writing
unless the circumstances preclude it. Such
circumstances could include the assertion of the claim
during a deposition. The notice should be as specific
as possible in identifying the information and stating
the basis for the claim. Because the receiving party
must decide whether to challenge the claim and may
sequester the information and submit it to the court
for a ruling on whether the claimed privilege or
protection applies and whether it has been waived, the
notice should be sufficiently detailed so as to enable
the receiving party and the court to understand the
basis for the claim and to determine whether waiver
has occurred. Courts will continue to examine
whether a claim of privilege or protection was made at
a reasonable time when delay is part of the waiver
determination under the governing law.
After receiving notice, each party that received
the information must promptly return, sequester, or
destroy the information and any copies it has. The
option of sequestering or destroying the information is
included in part because the receiving party may have
incorporated the information in protected trial-
preparation materials. No receiving party may use or
disclose the information pending resolution of the
privilege claim. The receiving party may present to the
court the questions whether the information is
privileged or protected as trial-preparation material,
20 FEDERAL RULES OF CIVIL PROCEDURE
and whether the privilege or protection has been
waived. If it does so, it must provide the court with
the grounds for the privilege or protection specified in
the producing party’s notice, and serve all parties. In
presenting the question, the party may use the content
of the information only to the extent permitted by the
applicable law of privilege, protection for trial-
preparation material, and professional responsibility.
If a party disclosed the information to
nonparties before receiving notice of a claim of
privilege or protection as trial-preparation material, it
must take reasonable steps to retrieve the information
and to return it, sequester it until the claim is
resolved, or destroy it.
Whether the information is returned or not,
the producing party must preserve the information
pending the court’s ruling on whether the claim of
privilege or of protection is properly asserted and
whether it was waived. As with claims made under
Rule 26(b)(5)(A), there may be no ruling if the other
parties do not contest the claim.
Subdivision (f). Rule 26(f) is amended to
direct the parties to discuss discovery of electronically
stored information during their discovery-planning
conference. The rule focuses on “issues relating to
disclosure or discovery of electronically stored
information”; the discussion is not required in cases
not involving electronic discovery, and the amendment
imposes no additional requirements in those cases.
When the parties do anticipate disclosure or discovery
of electronically stored information, discussion at the
FEDERAL RULES OF CIVIL PROCEDURE
21
outset may avoid later difficulties or ease their
resolution.
When a case involves discovery of
electronically stored information, the issues to be
addressed during the Rule 26(f) conference depend on
the nature and extent of the contemplated discovery
and of the parties’ information systems. It may be
important for the parties to discuss those systems,
and accordingly important for counsel to become
familiar with those systems before the conference.
With that information, the parties can develop a
discovery plan that takes into account the capabilities
of their computer systems. In appropriate cases
identification of, and early discovery from, individuals
with special knowledge of a party’s computer systems
may be helpful.
The particular issues regarding electronically
stored information that deserve attention during the
discovery planning stage depend on the specifics of the
given case. See Manual for Complex Litigation (4th)
§ 40.25(2) (listing topics for discussion in a proposed
order regarding meet-and-confer sessions). For
example, the parties may specify the topics for such
discovery and the time period for which discovery will
be sought. They may identify the various sources of
such information within a party’s control that should
be searched for electronically stored information. They
may discuss whether the information is reasonably
accessible to the party that has it, including the
burden or cost of retrieving and reviewing the
information. See Rule 26(b)(2)(B). Rule 26(f)(3)
explicitly directs the parties to discuss the form or
22 FEDERAL RULES OF CIVIL PROCEDURE
forms in which electronically stored information might
be produced. The parties may be able to reach
agreement on the forms of production, making
discovery more efficient. Rule 34(b) is amended to
permit a requesting party to specify the form or forms
in which it wants electronically stored information
produced. If the requesting party does not specify a
form, Rule 34(b) directs the responding party to state
the forms it intends to use in the production. Early
discussion of the forms of production may facilitate the
application of Rule 34(b) by allowing the parties to
determine what forms of production will meet both
parties’ needs. Early identification of disputes over the
forms of production may help avoid the expense and
delay of searches or productions using inappropriate
forms.
Rule 26(f) is also amended to direct the
parties to discuss any issues regarding preservation of
discoverable information during their conference as
they develop a discovery plan. This provision applies
to all sorts of discoverable information, but can be
particularly important with regard to electronically
stored information. The volume and dynamic nature
of electronically stored information may complicate
preservation obligations. The ordinary operation of
computers involves both the automatic creation and
the automatic deletion or overwriting of certain
information. Failure to address preservation issues
early in the litigation increases uncertainty and raises
a risk of disputes.
The parties’ discussion should pay particular
attention to the balance between the competing needs
FEDERAL RULES OF CIVIL PROCEDURE
23
to preserve relevant evidence and to continue routine
operations critical to ongoing activities. Complete or
broad cessation of a party’s routine computer
operations could paralyze the party’s activities. Cf.
Manual for Complex Litigation (4th) § 11.422 (“A
blanket preservation order may be prohibitively
expensive and unduly burdensome for parties
dependent on computer systems for their day-to-day
operations.”) The parties should take account of these
considerations in their discussions, with the goal of
agreeing on reasonable preservation steps.
The requirement that the parties discuss
preservation does not imply that courts should
routinely enter preservation orders. A preservation
order entered over objections should be narrowly
tailored. Ex parte preservation orders should issue
only in exceptional circumstances.
Rule 26(f) is also amended to provide that the
parties should discuss any issues relating to
assertions of privilege or of protection as trial-
preparation materials, including whether the parties
can facilitate discovery by agreeing on procedures for
asserting claims of privilege or protection after
production and whether to ask the court to enter an
order that includes any agreement the parties reach.
The Committee has repeatedly been advised about the
discovery difficulties that can result from efforts to
guard against waiver of privilege and work-product
protection. Frequently parties find it necessary to
spend large amounts of time reviewing materials
requested through discovery to avoid waiving privilege.
These efforts are necessary because materials subject
24 FEDERAL RULES OF CIVIL PROCEDURE
to a claim of privilege or protection are often difficult to
identify. A failure to withhold even one such item may
result in an argument that there has been a waiver of
privilege as to all other privileged materials on that
subject matter. Efforts to avoid the risk of waiver can
impose substantial costs on the party producing the
material and the time required for the privilege review
can substantially delay access for the party seeking
discovery.
These problems often become more acute
when discovery of electronically stored information is
sought. The volume of such data, and the informality
that attends use of e-mail and some other types of
electronically stored information, may make privilege
determinations more difficult, and privilege review
correspondingly more expensive and time consuming.
Other aspects of electronically stored information pose
particular difficulties for privilege review. For example,
production may be sought of information
automatically included in electronic files but not
apparent to the creator or to readers. Computer
programs may retain draft language, editorial
comments, and other deleted matter (sometimes
referred to as “embedded data” or “embedded edits”) in
an electronic file but not make them apparent to the
reader. Information describing the history, tracking,
or management of an electronic file (sometimes called
“metadata”) is usually not apparent to the reader
viewing a hard copy or a screen image. Whether this
information should be produced may be among the
topics discussed in the Rule 26(f) conference. If it is, it
may need to be reviewed to ensure that no privileged
FEDERAL RULES OF CIVIL PROCEDURE
25
information is included, further complicating the task
of privilege review.
Parties may attempt to minimize these costs
and delays by agreeing to protocols that minimize the
risk of waiver. They may agree that the responding
party will provide certain requested materials for initial
examination without waiving any privilege or
protection — sometimes known as a “quick peek.” The
requesting party then designates the documents it
wishes to have actually produced. This designation is
the Rule 34 request. The responding party then
responds in the usual course, screening only those
documents actually requested for formal production
and asserting privilege claims as provided in Rule
26(b)(5)(A). On other occasions, parties enter
agreements — sometimes called “clawback
agreements”— that production without intent to waive
privilege or protection should not be a waiver so long
as the responding party identifies the documents
mistakenly produced, and that the documents should
be returned under those circumstances. Other
voluntary arrangements may be appropriate depending
on the circumstances of each litigation. In most
circumstances, a party who receives information under
such an arrangement cannot assert that production of
the information waived a claim of privilege or of
protection as trial-preparation material.
Although these agreements may not be
appropriate for all cases, in certain cases they can
facilitate prompt and economical discovery by reducing
delay before the discovering party obtains access to
documents, and by reducing the cost and burden of
26 FEDERAL RULES OF CIVIL PROCEDURE
review by the producing party. A case-management or
other order including such agreements may further
facilitate the discovery process. Form 35 is amended
to include a report to the court about any agreement
regarding protections against inadvertent forfeiture or
waiver of privilege or protection that the parties have
reached, and Rule 16(b) is amended to recognize that
the court may include such an agreement in a case-
management or other order. If the parties agree to
entry of such an order, their proposal should be
included in the report to the court.
Rule 26(b)(5)(B) is added to establish a
parallel procedure to assert privilege or protection as
trial-preparation material after production, leaving the
question of waiver to later determination by the court.
Rule 33. Interrogatories to Parties
* * * * *
(d) Option to Produce Business Records. Where the
answer to an interrogatory may be derived or
ascertained from the business records, including
electronically stored information, of the party upon
whom the interrogatory has been served or from an
examination, audit or inspection of such business
FEDERAL RULES OF CIVIL PROCEDURE
27
records, including a compilation, abstract or summary
thereof, and the burden of deriving or ascertaining the
answer is substantially the same for the party serving
the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the
records from which the answer may be derived or
ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit
or inspect such records and to make copies,
compilations, abstracts, or summaries. A specification
shall be in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can the
party served, the records from which the answer may
be ascertained.
Committee Note
Rule 33(d) is amended to parallel Rule 34(a) by
recognizing the importance of electronically stored
information. The term “electronically stored
information” has the same broad meaning in Rule
28 FEDERAL RULES OF CIVIL PROCEDURE
33(d) as in Rule 34(a). Much business information is
stored only in electronic form; the Rule 33(d) option
should be available with respect to such records as
well.
Special difficulties may arise in using
electronically stored information, either due to its form
or because it is dependent on a particular computer
system. Rule 33(d) allows a responding party to
substitute access to documents or electronically stored
information for an answer only if the burden of
deriving the answer will be substantially the same for
either party. Rule 33(d) states that a party electing to
respond to an interrogatory by providing electronically
stored information must ensure that the interrogating
party can locate and identify it “as readily as can the
party served,” and that the responding party must give
the interrogating party a “reasonable opportunity to
examine, audit, or inspect” the information.
Depending on the circumstances, satisfying these
provisions with regard to electronically stored
information may require the responding party to
provide some combination of technical support,
information on application software, or other
assistance. The key question is whether such support
enables the interrogating party to derive or ascertain
the answer from the electronically stored information
as readily as the responding party. A party that
wishes to invoke Rule 33(d) by specifying electronically
stored information may be required to provide direct
access to its electronic information system, but only if
that is necessary to afford the requesting party an
adequate opportunity to derive or ascertain the answer
to the interrogatory. In that situation, the responding
FEDERAL RULES OF CIVIL PROCEDURE
29
party’s need to protect sensitive interests of
confidentiality or privacy may mean that it must derive
or ascertain and provide the answer itself rather than
invoke Rule 33(d).
Rule 34. Production of Documents, Electronically
Stored Information, and Things and Entry Upon
Land for Inspection and Other Purposes
(a) Scope. Any party may serve on any other party a
request (1) to produce and permit the party making
the request, or someone acting on the requestor’s
behalf, 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 — translated, if
necessary, by the respondent into reasonably usable
form, or to inspect, copy, test, or sample any
designated tangible things which constitute or contain
matters within the scope of Rule 26(b) and which are
30 FEDERAL RULES OF CIVIL PROCEDURE
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 Rule 26(b).
(b) Procedure. The request shall set forth, either by
individual item or by category, the items to be
inspected, and describe each with reasonable
particularity. The request shall specify a reasonable
time, place, and manner of making the inspection and
performing the related acts. The request may specify
the form or forms in which electronically stored
information is to be produced. Without leave of court
FEDERAL RULES OF CIVIL PROCEDURE
31
or written stipulation, a request may not be served
before the time specified in Rule 26(d).
The party upon whom the request is served shall
serve a written response within 30 days after the
service of the request. A shorter or longer time may be
directed by the court or, in the absence of such an
order, agreed to in writing by the parties, subject to
Rule 29. The response shall state, with respect to
each item or category, that inspection and related
activities will be permitted as requested, unless the
request is objected to, including an objection to the
requested form or forms for producing electronically
stored information, stating the reasons for the
objection. If objection is made to part of an item or
category, the part shall be specified and inspection
permitted of the remaining parts. If objection is made
to the requested form or forms for producing
32 FEDERAL RULES OF CIVIL PROCEDURE
electronically stored information — or if no form was
specified in the request — the responding party must
state the form or forms it intends to use. The party
submitting the request may move for an order under
Rule 37(a) with respect to any objection to or other
failure to respond to the request or any part thereof, or
any failure to permit inspection as requested.
Unless the parties otherwise agree, or the court
otherwise orders:
(i) a party who produces documents for inspection
shall produce them as they are kept in the usual
course of business or shall organize and label them
to correspond with the categories in the request;
(ii) if a request does not specify the form or forms
for producing electronically stored information, a
responding party must produce the information in
a form or forms in which it is ordinarily maintained
FEDERAL RULES OF CIVIL PROCEDURE
33
or in a form or forms that are reasonably usable;
and
(iii)
a party need not produce the same
electronically stored information in more than one
form.
* * * * *
Committee Note
Subdivision
(a). As originally adopted, Rule 34
focused on discovery of “documents” and “things.” In
1970, Rule 34(a) was amended to include discovery of
data compilations, anticipating that the use of
computerized information would increase. Since then,
the growth in electronically stored information and in
the variety of systems for creating and storing such
information has been dramatic. Lawyers and judges
interpreted the term “documents” to include
electronically stored information because it was
obviously improper to allow a party to evade discovery
obligations on the basis that the label had not kept
pace with changes in information technology. But it
has become increasingly difficult to say that all forms
of electronically stored information, many dynamic in
nature, fit within the traditional concept of a
“document.” Electronically stored information may
exist in dynamic databases and other forms far
different from fixed expression on paper. Rule 34(a) is
amended to confirm that discovery of electronically
34 FEDERAL RULES OF CIVIL PROCEDURE
stored information stands on equal footing with
discovery of paper documents. The change clarifies
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.
At the same time, a Rule 34 request for production of
“documents” should be understood to encompass, and
the response should include, electronically stored
information unless discovery in the action has clearly
distinguished between electronically stored
information and “documents.”
Discoverable information often exists in both
paper and electronic form, and the same or similar
information might exist in both. The items listed in
Rule 34(a) show different ways in which information
may be recorded or stored. Images, for example, might
be hard-copy documents or electronically stored
information. The wide variety of computer systems
currently in use, and the rapidity of technological
change, counsel against a limiting or precise definition
of electronically stored information. Rule 34(a)(1) is
expansive and includes any type of information that is
stored electronically. A common example often sought
in discovery is electronic communications, such as e-
mail. The rule covers — either as documents or as
electronically stored information — information “stored
in any medium,” to encompass future develop-ments
in computer technology. 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.
FEDERAL RULES OF CIVIL PROCEDURE
35
References elsewhere in the rules to
“electronically stored information” should be
understood to invoke this expansive approach. A
companion change is made to Rule 33(d), making it
explicit that parties choosing to respond to an
interrogatory by permitting access to responsive
records may do so by providing access to electronically
stored information. More generally, the term used in
Rule 34(a)(1) appears in a number of other
amendments, such as those to Rules 26(a)(1), 26(b)(2),
26(b)(5)(B), 26(f), 34(b), 37(f), and 45. In each of these
rules, electronically stored information has the same
broad meaning it has under Rule 34(a)(1). References
to “documents” appear in discovery rules that are not
amended, including Rules 30(f), 36(a), and 37(c)(2).
These references should be interpreted to include
electronically stored information as circumstances
warrant.
The term “electronically stored information” is
broad, but whether material that falls within this term
should be produced, and in what form, are separate
questions that must be addressed under Rules 26(b),
26(c), and 34(b).
The Rule 34(a) requirement that, if necessary, a
party producing electronically stored information
translate it into reasonably usable form does not
address the issue of translating from one human
language to another. See In re Puerto Rico Elect. Power
Auth., 687 F.2d 501, 504-510 (1st Cir. 1989).
Rule 34(a)(1) is also amended to make clear that
parties may request an opportunity to test or sample
36 FEDERAL RULES OF CIVIL PROCEDURE
materials sought under the rule in addition to
inspecting and copying them. That opportunity may
be important for both electronically stored information
and hard-copy materials. The current rule is not clear
that such testing or sampling is authorized; the
amendment expressly permits it. As with any other
form of discovery, issues of burden and intrusiveness
raised by requests to test or sample can be addressed
under Rules 26(b)(2) and 26(c). Inspection or testing
of certain types of electronically stored information or
of a responding party’s electronic information system
may raise issues of confidentiality or privacy. The
addition of testing and sampling to Rule 34(a) with
regard to documents and electronically stored
information is not meant to create a routine right of
direct access to a party’s electronic information
system, although such access might be justified in
some circumstances. Courts should guard against
undue intrusiveness resulting from inspecting or
testing such systems.
Rule 34(a)(1) is further amended to make clear
that tangible things must — like documents and land
sought to be examined — be designated in the request.
Subdivision (b). Rule 34(b) provides that a
party must produce documents as they are kept in the
usual course of business or must organize and label
them to correspond with the categories in the
discovery request. The production of electronically
stored information should be subject to comparable
requirements to protect against deliberate or
inadvertent production in ways that raise unnecessary
obstacles for the requesting party. Rule 34(b) is
FEDERAL RULES OF CIVIL PROCEDURE
37
amended to ensure similar protection for electronically
stored information.
The amendment to Rule 34(b) permits the
requesting party to designate the form or forms in
which it wants electronically stored information
produced. The form of production is more important
to the exchange of electronically stored information
than of hard-copy materials, although a party might
specify hard copy as the requested form. Specification
of the desired form or forms may facilitate the orderly,
efficient, and cost-effective discovery of electronically
stored information. The rule recognizes that different
forms of production may be appropriate for different
types of electronically stored information. Using
current technology, for example, a party might be
called upon to produce word processing documents, e-
mail messages, electronic spreadsheets, different
image or sound files, and material from databases.
Requiring that such diverse types of electronically
stored information all be produced in the same form
could prove impossible, and even if possible could
increase the cost and burdens of producing and using
the information. The rule therefore provides that the
requesting party may ask for different forms of
production for different types of electronically stored
information.
The rule does not require that the requesting
party choose a form or forms of production. The
requesting party may not have a preference. In some
cases, the requesting party may not know what form
the producing party uses to maintain its electronically
stored information, although Rule 26(f)(3) is amended
38 FEDERAL RULES OF CIVIL PROCEDURE
to call for discussion of the form of production in the
parties’ prediscovery conference.
The responding party also is involved in
determining the form of production. In the written
response to the production request that Rule 34
requires, the responding party must state the form it
intends to use for producing electronically stored
information if the requesting party does not specify a
form or if the responding party objects to a form that
the requesting party specifies. Stating the intended
form before the production occurs may permit the
parties to identify and seek to resolve disputes before
the expense and work of the production occurs. A
party that responds to a discovery request by simply
producing electronically stored information in a form
of its choice, without identifying that form in advance
of the production in the response required by Rule
34(b), runs a risk that the requesting party can show
that the produced form is not reasonably usable and
that it is entitled to production of some or all of the
information in an additional form. Additional time
might be required to permit a responding party to
assess the appropriate form or forms of production.
If the requesting party is not satisfied with the
form stated by the responding party, or if the
responding party has objected to the form specified by
the requesting party, the parties must meet and confer
under Rule 37(a)(2)(B) in an effort to resolve the matter
before the requesting party can file a motion to
compel. If they cannot agree and the court resolves
the dispute, the court is not limited to the forms
initially chosen by the requesting party, stated by the
FEDERAL RULES OF CIVIL PROCEDURE
39
responding party, or specified in this rule for
situations in which there is no court order or party
agreement.
If the form of production is not specified by party
agreement or court order, the responding party must
produce electronically stored information either in a
form or forms in which it is ordinarily maintained or in
a form or forms that are reasonably usable. Rule 34(a)
requires that, if necessary, a responding party
“translate” information it produces into a “reasonably
usable” form. Under some circumstances, the
responding party may need to provide some reasonable
amount of technical support, information on
application software, or other reasonable assistance to
enable the requesting party to use the information.
The rule does not require a party to produce
electronically stored information in the form it 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 electronically stored
information 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.
Some electronically stored information may be
ordinarily maintained in a form that is not reasonably
40 FEDERAL RULES OF CIVIL PROCEDURE
usable by any party. One example is “legacy” data
that can be used only by superseded systems. The
questions whether a producing party should be
required to convert such information to a more usable
form, or should be required to produce it at all, should
be addressed under Rule 26(b)(2)(B).
Whether or not the requesting party specified
the form of production, Rule 34(b) provides that the
same electronically stored information ordinarily need
be produced in only one form.
Rule 37. Failure to Make Disclosures or Cooperate
in Discovery; Sanctions
* * * * *
(f) Electronically Stored Information. Absent
exceptional circumstances, a court may not impose
sanctions under these rules on a party for failing to
provide electronically stored information lost as a
result of the routine, good-faith operation of an
electronic information system.
* * * * *
FEDERAL RULES OF CIVIL PROCEDURE
41
Committee Note
Subdivision (f). Subdivision (f) is new. It
focuses on a distinctive feature of computer
operations, the routine alteration and deletion of
information that attends ordinary use. Many steps
essential to computer operation may alter or destroy
information, for reasons that have nothing to do with
how that information might relate to litigation. As a
result, the ordinary operation of computer systems
creates a risk that a party may lose potentially
discoverable information without culpable conduct on
its part. Under Rule 37(f), absent exceptional
circumstances, sanctions cannot be imposed for loss
of electronically stored information resulting from the
routine, good-faith operation of an electronic
information system.
Rule 37(f) applies only to information lost due to
the “routine operation of an electronic information
system” — the ways in which such systems are
generally designed, programmed, and implemented to
meet the party’s technical and business needs. The
“routine operation” of computer systems includes the
alteration and overwriting of information, often without
the operator’s specific direction or awareness, a
feature with no direct counterpart in hard-copy
documents. Such features are essential to the
operation of electronic information systems.
Rule 37(f) applies to information lost due to the
routine operation of an information system only if the
operation was in good faith. Good faith in the routine
operation of an information system may involve a
42 FEDERAL RULES OF CIVIL PROCEDURE
party’s intervention to modify or suspend certain
features of that routine operation to prevent the loss of
information, if that information is subject to a
preservation obligation. A preservation obligation may
arise from many sources, including common law,
statutes, regulations, or a court order in the case. The
good faith requirement of Rule 37(f) means that a party
is not permitted to exploit the routine operation of an
information system to thwart discovery obligations by
allowing that operation to continue in order to destroy
specific stored information that it is required to
preserve. When a party is under a duty to preserve
information because of pending or reasonably
anticipated litigation, intervention in the routine
operation of an information system is one aspect of
what is often called a “litigation hold.” Among the
factors that bear on a party’s good faith in the routine
operation of an information system are the steps the
party took to comply with a court order in the case or
party agreement requiring preservation of specific
electronically stored information.
Whether good faith would call for steps to
prevent the loss of information on sources that the
party believes are not reasonably accessible under
Rule 26(b)(2) depends on the circumstances of each
case. One factor is whether the party reasonably
believes that the information on such sources is likely
to be discoverable and not available from reasonably
accessible sources.
The protection provided by Rule 37(f) applies
only to sanctions “under these rules.” It does not
FEDERAL RULES OF CIVIL PROCEDURE
43
affect other sources of authority to impose sanctions
or rules of professional responsibility.
This rule restricts the imposition of “sanctions.”
It does not prevent a court from making the kinds of
adjustments frequently used in managing discovery if
a party is unable to provide relevant responsive
information. For example, a court could order the
responding party to produce an additional witness for
deposition, respond to additional interrogatories, or
make similar attempts to provide substitutes or
alternatives for some or all of the lost information.
Rule 45. Subpoena
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is
issued; and
(B) state the title of the action, the name of the
court in which it is pending, and its civil action
number; and
(C) command each person to whom it is
directed to attend and give testimony or to
produce and permit inspection, copying, testing,
44 FEDERAL RULES OF CIVIL PROCEDURE
or sampling of designated books, documents,
electronically stored information, or tangible
things in the possession, custody or control of
that person, or to permit inspection of premises,
at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d)
of this rule.
A command to produce evidence or to permit
inspection, copying, testing, or sampling may be joined
with a command to appear at trial or hearing or at
deposition, or may be issued separately. A subpoena
may specify the form or forms in which electronically
stored information is to be produced.
(2) A subpoena must issue as follows:
* * * * *
(C) for production, inspection, copying, testing,
or sampling, if separate from a subpoena
FEDERAL RULES OF CIVIL PROCEDURE
45
commanding a person’s attendance, from the
court for the district where the production or
inspection is to be made.
(3) The clerk shall issue a subpoena, signed but
otherwise in blank, to a party requesting it, who
shall complete it before service. An attorney as
officer of the court may also issue and sign a
subpoena on behalf of
(A) a court in which the attorney is authorized
to practice; or
(B) a court for a district in which a deposition
or production is compelled by the subpoena, if
the deposition or production pertains to an
action pending in a court in which the attorney
is authorized to practice.
(b) Service.
46 FEDERAL RULES OF CIVIL PROCEDURE
(1) A subpoena may be served by any person who
is not a party and is not less than 18 years of age.
Service of a subpoena upon a person named therein
shall be made by delivering a copy thereof to such
person and, if the person’s attendance is
commanded, by tendering to that person the fees
for one day’s attendance and the mileage allowed by
law. When the subpoena is issued on behalf of the
United States or an officer or agency thereof, fees
and mileage need not be tendered. Prior notice of
any commanded production of documents and
things or inspection of premises before trial shall be
served on each party in the manner prescribed by
Rule 5(b).
(2) Subject to the provisions of clause (ii) of
subparagraph (c)(3)(A) of this rule, a subpoena may
be served at any place within the district of the
FEDERAL RULES OF CIVIL PROCEDURE
47
court by which it is issued, or at any place without
the district that is within 100 miles of the place of
the deposition, hearing, trial, production,
inspection, copying, testing, or sampling specified
in the subpoena or at any place within the state
where a state statute or rule of court permits
service of a subpoena issued by a state court of
general jurisdiction sitting in the place of the
deposition, hearing, trial, production, inspection,
copying, testing, or sampling specified in the
subpoena. When a statute of the United States
provides therefor, the court upon proper application
and cause shown may authorize the service of a
subpoena at any other place. A subpoena directed
to a witness in a foreign country who is a national
or resident of the United States shall issue under
48 FEDERAL RULES OF CIVIL PROCEDURE
the circumstances and in the manner and be
served as provided in Title 28, U.S.C. § 1783.
(3) Proof of service when necessary shall be made
by filing with the clerk of the court by which the
subpoena is issued a statement of the date and
manner of service and of the names of the persons
served, certified by the person who made the
service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the
issuance and service of a subpoena shall take
reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena.
The court on behalf of which the subpoena was
issued shall enforce this duty and impose upon the
party or attorney in breach of this duty an
appropriate sanction, which may include, but is not
FEDERAL RULES OF CIVIL PROCEDURE
49
limited to, lost earnings and a reasonable attorney’s
fee.
(2) (A) A person commanded to produce and
permit inspection, copying, testing, or sampling
of designated electronically stored information,
books, papers, documents or tangible things, or
inspection of premises need not appear in
person at the place of production or inspection
unless commanded to appear for deposition,
hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a
person commanded to produce and permit
inspection, copying, testing, or sampling may,
within 14 days after service of the subpoena or
before the time specified for compliance if such
time is less than 14 days after service, serve
upon the party or attorney designated in the
50 FEDERAL RULES OF CIVIL PROCEDURE
subpoena written objection to producing any or
all of the designated materials or inspection of
the premises — or to producing electronically
stored information in the form or forms
requested. If objection is made, the party
serving the subpoena shall not be entitled to
inspect, copy, test, or sample the materials or
inspect the premises except pursuant to an
order of the court by which the subpoena was
issued. If objection has been made, the party
serving the subpoena may, upon notice to the
person commanded to produce, move at any
time for an order to compel the production,
inspection, copying, testing, or sampling. Such
an order to compel shall protect any person who
is not a party or an officer of a party from
significant expense resulting from the
FEDERAL RULES OF CIVIL PROCEDURE
51
inspection, copying, testing, or sampling
commanded.
(3) (A) On timely motion, the court by which a
subpoena was issued shall quash or modify the
subpoena if it
(i) fails to allow reasonable time for
compliance;
(ii) requires a person who is not a party or
an officer of a party to travel to a place more
than 100 miles from the place where that
person resides, is employed or regularly
transacts business in person, except that,
subject to the provisions of clause (c)(3)(B)(iii)
of this rule, such a person may in order to
attend trial be commanded to travel from any
such place within the state in which the trial
is held;
52 FEDERAL RULES OF CIVIL PROCEDURE
(iii) requires disclosure of privileged or other
protected matter and no exception or waiver
applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i)
requires disclosure of a trade secret or
other confidential research, development, or
commercial information, or
(ii) requires disclosure of an unretained
expert’s opinion or information not describing
specific events or occurrences in dispute and
resulting from the expert’s study made not at
the request of any party, or
(iii) requires a person who is not a party or
an officer of a party to incur substantial
expense to travel more than 100 miles to
attend trial, the court may, to protect a
FEDERAL RULES OF CIVIL PROCEDURE
53
person subject to or affected by the
subpoena, quash or modify the subpoena or,
if the party in whose behalf the subpoena is
issued shows a substantial need for the
testimony or material that cannot be
otherwise met without undue hardship and
assures that the person to whom the
subpoena is addressed will be reasonably
compensated, the court may order
appearance or production only upon specified
conditions.
(d) Duties in Responding to Subpoena.
(1) (A) A person responding to a subpoena to
produce documents shall produce them as they
are kept in the usual course of business or shall
organize and label them to correspond with the
categories in the demand.
54 FEDERAL RULES OF CIVIL PROCEDURE
(B) If a subpoena does not specify the form or
forms for producing electronically stored
information, a person responding to a subpoena
must produce the information in a form or forms
in which the person ordinarily maintains it or in
a form or forms that are reasonably usable.
(C) A person responding to a subpoena need
not produce the same electronically stored
information in more than one form.
(D) A person responding to a subpoena need
not provide discovery of electronically stored
information from sources that the person
identifies as not reasonably accessible because
of undue burden or cost. On motion to compel
discovery or to quash, the person from whom
discovery is sought must show that the
information sought is not reasonably accessible
FEDERAL RULES OF CIVIL PROCEDURE
55
because of undue burden or cost. If that
showing is made, the court may nonetheless
order discovery from such sources if the
requesting party shows good cause, considering
the limitations of Rule 26(b)(2)(C). The court
may specify conditions for the discovery.
(2) (A) When information subject to a subpoena is
withheld on a claim that it is privileged or
subject to protection as trial-preparation
materials, the claim shall be made expressly and
shall be supported by a description of the nature
of the documents, communications, or things
not produced that is sufficient to enable the
demanding party to contest the claim.
(B) If information is produced in response to a
subpoena that is subject to a claim of privilege
or of protection as trial-preparation material, the
56 FEDERAL RULES OF CIVIL PROCEDURE
person making the claim may notify any party
that received the information of the claim and
the basis for it. After being notified, a party
must promptly return, sequester, or destroy the
specified information and any copies it has and
may not use or disclose the information until the
claim is resolved. A receiving party may
promptly present the information to the court
under seal for a determination of the claim. If
the receiving party disclosed the information
before being notified, it must take reasonable
steps to retrieve it. The person who produced
the information must preserve the information
until the claim is resolved.
(e) Contempt. Failure of any person without
adequate excuse to obey a subpoena served upon that
person may be deemed a contempt of the court from
FEDERAL RULES OF CIVIL PROCEDURE
57
which the subpoena issued. An adequate cause for
failure to obey exists when a subpoena purports to
require a nonparty to attend or produce at a place not
within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
Committee Note
Rule 45 is amended to conform the provisions
for subpoenas to changes in other discovery rules,
largely related to discovery of electronically stored
information. Rule 34 is amended to provide in greater
detail for the production of electronically stored
information. Rule 45(a)(1)(C) is amended to recognize
that electronically stored information, as defined in
Rule 34(a), can also be sought by subpoena. Like Rule
34(b), Rule 45(a)(1) is amended to provide that the
subpoena can designate a form or forms for production
of electronic data. Rule 45(c)(2) is amended, like Rule
34(b), to authorize the person served with a subpoena
to object to the requested form or forms. In addition,
as under Rule 34(b), Rule 45(d)(1)(B) is amended to
provide that if the subpoena does not specify the form
or forms for electronically stored information, the
person served with the subpoena must produce
electronically stored information in a form or forms in
which it is usually maintained or in a form or forms
that are reasonably usable. Rule 45(d)(1)(C) is added to
provide that the person producing electronically stored
information should not have to produce the same
58 FEDERAL RULES OF CIVIL PROCEDURE
information in more than one form unless so ordered
by the court for good cause.
As with discovery of electronically stored
information from parties, complying with a subpoena
for such information may impose burdens on the
responding person. Rule 45(c) provides protection
against undue impositions on nonparties. For
example, Rule 45(c)(1) directs that a party serving a
subpoena “shall take reasonable steps to avoid
imposing undue burden or expense on a person
subject to the subpoena,” and Rule 45(c)(2)(B) permits
the person served with the subpoena to object to it and
directs that an order requiring compliance “shall
protect a person who is neither a party nor a party’s
officer from significant expense resulting from”
compliance. Rule 45(d)(1)(D) is added to provide that
the responding person need not provide discovery of
electronically stored information from sources the
party identifies as not reasonably accessible, unless
the court orders such discovery for good cause,
considering the limitations of Rule 26(b)(2)(C), on
terms that protect a nonparty against significant
expense. A parallel provision is added to Rule 26(b)(2).
Rule 45(a)(1)(B) is also amended, as is Rule
34(a), to provide that a subpoena is available to permit
testing and sampling as well as inspection and
copying. As in Rule 34, this change recognizes that on
occasion the opportunity to perform testing or
sampling may be important, both for documents and
for electronically stored information. Because testing
or sampling may present particular issues of burden
or intrusion for the person served with the subpoena,
FEDERAL RULES OF CIVIL PROCEDURE
59
however, the protective provisions of Rule 45(c) should
be enforced with vigilance when such demands are
made. Inspection or testing of certain types of
electronically stored information or of a person’s
electronic information system may raise issues of
confidentiality or privacy. The addition of sampling
and testing to Rule 45(a) with regard to documents
and electronically stored information is not meant to
create a routine right of direct access to a person’s
electronic information system, although such access
might be justified in some circumstances. Courts
should guard against undue intrusiveness resulting
from inspecting or testing such systems.
Rule 45(d)(2) is amended, as is Rule 26(b)(5), to
add a procedure for assertion of privilege or of
protection as trial-preparation materials after
production. The receiving party may submit the
information to the court for resolution of the privilege
claim, as under Rule 26(b)(5)(B).
Other minor amendments are made to
conform the rule to the changes described above.
Form 35. Report of Parties’ Planning Meeting
* * * * *
3. Discovery Plan. The parties jointly propose to the
court the following discovery plan: [Use separate
60 FEDERAL RULES OF CIVIL PROCEDURE
paragraphs or subparagraphs as necessary if parties
disagree.]
Discovery will be needed on the following
subjects: (brief description of subjects on which
discovery will be needed)
Disclosure or discovery of electronically stored
information should be handled as follows: (brief
description of parties’ proposals)
The parties have agreed to an order regarding claims of
privilege or of protection as trial-preparation material
asserted after production, as follows: (brief description
of provisions of proposed order).
All discovery commenced in time to be
completed by _______ (date) _______. [Discovery
on _____ (issue for early discovery) _______ to be
completed by _______ (date) _______.]
