correspond with the categories in the request. If a request does not specify the
produce the information in a form or forms in which it is ordinarily maintained or
in a form that is reasonably usable. A party need not produce the same
electronically stored information in more than one form.
employment or other records in the possession of a third party may, at the party’s
which the submitting party may obtain the requested records. Within 10 days of
receiving records pursuant to the authorization, the party submitting the request
shall serve upon the authorizing party a complete copy of the records so obtained.
(c) Persons Not Parties. A person not a party to the action may be
provided in Rule 45.
information” is permitted. Discovery of electronically stored information is
method by which it is retrieved. The amendment is made with simultaneous
amendments to Rules 16, 26, 34 and 37 to provide a procedure for the discovery of
electronically stored information. The amendments are taken largely from the
Committees Notes and case law may be consulted for guidance.
party desires the production of the information. Thus, under the amended rule,
party could specify that the production of the records be made in electronic form in
a commercial spreadsheet program format. If the producing party can reasonably
produce the electronically stored information in the requested form, it must do so.
At the same time, it is not the intent of the rule to impose undue burden or cost on
the producing party. Consequently, the producing party may object to the
requested form of production under the amendment to Rule 34 (b). If a dispute
arises as to the form in which the information should be produced, or if the
producing party claims that it would constitute an “undue burden or cost” to
produce the information at all (see Rule 26 (b)(6)), the dispute must be resolved
under Rule 26 (g).
If no particular form is specified in the request, electronically stored
information may be produced in the form in which it is ordinarily maintained or in
any form “that is reasonably usable.” As the amendment to Rule 34(b) states, a
party need not produce the same electronically stored information in more than one
Advisory Committee’s Notes July 1, 2001
This amendment to Rule 34(b) is recommended to address problems that
sometimes develop when a party gives an opposing party an authorization to obtain
records. In some cases, the party giving the authorization may not have copies of
or even be aware of what records have been obtained. This change in the rules will
provide that where a party obtains records of the other party pursuant to an
authorization, the receiving party will provide the authorizing party with a
complete set of the records received within 10 days.
Advisory Committee’s Notes 1993
Rule 34(c) is amended to adopt a 1991 amendment of Federal Rule 34(c) for
the purpose of maintaining conformity with the federal rule. The reasons are those
stated in the federal Advisory Committee Note, which reads as follows:
This amendment reflects the change effected by revision of Rule 45 to
provide for subpoenas to compel non-parties to produce documents and things and
to submit to inspections of premises. The deletion of the text of the former [Rule
34(c) saving an independent action] is not intended to preclude an independent
action for production of documents or things or for permission to enter upon land,
but such actions may no longer be necessary in light of this revision.
Advisory Committee’s Notes 1991
Rule 34(b) is amended to add a provision making clear that documents
produced under the rule must be produced either in their normal business order or
in the order specified in the request. This provision was added to Federal Rule
34(b) in 1980 to eliminate the practice of deliberately confusing the requesting
party by intermixing critical documents with others. The provision also benefits
the producing party, however, by giving that party the option simply to produce the
documents as they are kept in the regular course of business. Under the latter
provision, if documents produced come from different branches or divisions within
the same business they may be presented in the order in which they are kept at
their specific locations, with only the location of each group of documents
Advisory Committee’s Note
October 1, 1970
The changes made in Rule 34 are thus summarized by the federal Advisory
Rule 34 is revised to accomplish the following major changes in the
existing rule: (1) to eliminate the requirement of good cause; (2) to
have the rule operate extrajudicially; (3) to include testing and
sampling as well as inspecting or photographing tangible things; and
(4) to make clear that the rule does not preclude an independent
action for analogous discovery against persons not parties.
Subdivision (a). Good cause is eliminated because it has furnished an
uncertain and erratic protection to the parties from whom production
is sought and is now rendered unnecessary by virtue of the more
specific provisions added to Rule 26(b) relating to materials
assembled in preparation for trial and to experts retained or consulted
by parties.” (48 F.R.D. 526)
The procedure provided in Rule 34(b) for production of documents and
things and entry upon land for inspection is essentially the same as that in the
amended Rule 33.
Rule 34 continues to apply only to parties. Subdivision (c) makes clear,
however, that this rule is not pre-emptive and independent actions in the nature of
bills in equity may be brought in order to enter land or inspect large tangible things
in the possession of persons who are not parties.
Reporter’s Notes December 1, 1959
This rule is the same as Federal Rule 34. It is much broader than R.S.1954,
Chap. 113, Sec. 23 (repealed in 1959), which applies only to “books, papers or
written instruments material to the issue.” The test for production under this rule is
the same as the scope of permitted examination under Rule 26(b), subject to the
protective provisions of that rule.
A motion under this rule requires a showing of good cause, and it is limited
to parties to the action. If a document is in the control of a third person, a
deposition under Rule 26 and a subpoena duces tecum under Rule 45(b) must be
This rule is primarily intended to govern production and inspection before
trial. Rule 45(b) applies both to the taking of depositions and to testimony and
production of documents at trial.