Chicken or Egg Problem: What Comes First, ESI Protocol or FRCP 34 Responses?

Chicken or Egg Problem: What Comes First, ESI Protocol or FRCP 34 Responses? Photo: idrutu/

Timing, as the saying goes, is everything. This is particularly true given the new requirements under Federal Rule of Civil Procedure 34. When objecting to document requests, parties must now do so with specificity, stating whether documents were withheld and when the production will be complete. Litigants thus face a quandary: Objections are likely due before electronically stored information (ESI) protocols are negotiated, yet ESI protocols often define the scope and timing of discovery.


On December 1, significant changes to the Federal Rules of Civil Procedure related to discovery took effect. Rule 34 now requires that parties responding to document requests “state with specificity the grounds for objecting” and “whether any responsive materials are being withheld on the basis of that objection.” And they also must produce documents by the time “specified in the request or another reasonable time specified in the response.”

The Committee Note expands upon these requirements, providing that “[a]n objection that states the limits that have controlled the search … qualifies as a statement that the materials have been ‘withheld.’ ” This provision grew out of concern expressed in 2010 by the Duke Conference Subcommittee that “a party who limits the scope of its search may not know what documents or ESI it has not found, and cannot state whether any responsive materials are being ‘withheld.’ ” Amended Rule 34 echoes the Duke recommendation that “[a] party who does not intend to search all sources that would be covered by a request” could instead “object to the request by stating that it is overbroad and by specifying the bounds of the search it plans to undertake.”

The Committee Note further explains that the amendment “reflect[s] the common practice of producing copies of documents … rather than simply permitting inspection.” The instruction is that “[t]he response … must state that copies will be produced,” and when producing on a rolling basis must “specify the beginning and end dates of the production.”

Timing of Objections: Don’t Count Your Eggs Before They Hatch

Under Rule 34, objections and responses to document requests are due 30 days after they are propounded. As of December 1, if document requests are propounded prior to the Rule 26(f) Conference, the receiving party has up to 30 days after the conference to object.

ESI protocols are not required under the rules, thus there is no timing requirement for their submission or entry. It is not uncommon, however, for parties to negotiate ESI protocols after completion of the Rule 26(f) Conference and entry of the Rule 16 scheduling order. This creates increased likelihood that Rule 34 objections and responses will be due well before an ESI protocol is finalized or submitted to the court.

The implication for litigants is that the requirements to specify documents withheld and the timing of rolling productions are complicated by the fact that limits controlling the search will not be negotiated until after objections are timely made.

Recommendation: Don’t Put All Your Eggs in One Basket

The simplest solution is for the parties to agree that objections are not due until after the ESI protocol is finalized. Where such agreement is not feasible, the content of objections should recognize the interplay between the deadline to object, requirement to describe what is withheld and ongoing ESI protocol negotiations. Objections may include, for example:

►An affirmative statement that supplementation will occur at a reasonable time after the ESI protocol is complete.

►Incorporation by reference of the yet-to-be finalized ESI protocol.

►Specific statements about ongoing ESI protocol negotiations, such as:

1. Inspection versus copying: Parties are still discussing whether source code will be made available for inspection, or whether copies will be produced based upon provisions of the protective order and whether the requesting party has applications necessary to view native source code.

2. Rolling productions: Certain agreed-upon sources will be produced on a determined date, but sources subject to negotiation will be produced based on an estimated schedule to be provided in supplemental objections or a future ESI protocol.

3. Privileged materials withheld: Objections will be supplemented, if applicable, once parties reach agreement on what categories of privileged materials need not be logged.

►Reference to local rules setting presumptive limits on the scope of discovery, such as the United States District Court for the District of Delaware provision regarding 10 custodians and “[f]ocused terms, rather than over-broad terms (e.g., product and company names) . . . .”

Overly Broad Objections: Avoid Chicken Little Claims

While an objection that a request is overbroad is still permitted, the committee notes these objections must also state, where applicable, a “scope that is not overbroad” (emphasis added). Until ESI protocol negotiations are complete, it may be difficult to evaluate which elements of a request are overbroad. But this should not be viewed as some Chicken Little event. It is actually a great opportunity, because the flip side of this egg is defining discovery boundaries. Setting forth, in accordance with Rule 34, the fence lines of the discovery that you view as permissible can help limit the scope of discovery and thus define your henhouse. Here again, referencing ESI protocol negotiations in objections may be an effective way to reserve an overbroad objection until such time as the ESI protocol is complete, thus avoiding claims of vague boilerplate objections that violate Rule 34.

Local practice in select jurisdictions may increase the likelihood that an ESI protocol is finalized prior to the deadline to object to document requests. The District of Maryland local protocol suggests that at the Rule 26(f) Conference, parties “should” discuss “systems to be searched; . . . [or] not be searched; restrictions or limitations on the search; factors that limit the ability to search; the use of key word searches, with an agreement on the words or terms to be searched; . . . limitations on the time frame of ESI to be searched; . . . fields or document types to be searched; limitations regarding whether back up, archival, legacy or deleted ESI is to be searched;” etc.

In this rare circumstance, where the ESI protocol likely precedes discovery responses and objections, agreements about the search will impact how objections define what is and is not overbroad. For example, if a request seeks all documents regarding sales figures or profits, the parties may agree in the ESI protocol to produce financial reports from a particular accounting database during a limited date range. A potential objection would be that the request is overbroad because it requires review of dozens of employees’ emails and documents from numerous systems without any date limitation, but production of the agreed-upon financial reports from the specified date range and accounting database would not be overbroad.

ESI Protocol: Don’t Spend Egg Money Before the Hen Lays Her Eggs

The new amendments to the Federal Rule of Civil Procedure incentivize parties to invest in negotiating meaningful ESI protocols. Amended Rule 1 emphasizes that parties are to share the responsibility of employing the rules to secure the “just, speedy and inexpensive” determination of cases. Rule 16(b)(3)(B), in an effort to more efficiently resolve discovery disputes, now allows courts to direct parties to request a conference before filing discovery motions. Amended Rule 26 defines the scope of discovery as what is “proportional to the needs of the case” and expressly states that protective orders may shift the cost of discovery.

With this framework, parties who embark on an ESI protocol are better positioned to escalate discovery disputes and seek appropriate relief, including cost shifting, early in the discovery process. Addressing these issues early also reduces the risk of unnecessary cost and delay in litigation. Remember, however, that ESI protocol negotiations require preparation and are often iterative. As recognized by the District of Kansas’s Guidelines for Cases Involving ESI, “[i]n cases with substantial ESI issues, counsel should assume that this [Rule 26(f) Conference] discussion [about the scope of electronic discovery] will be an ongoing process and not a one-time meeting.”

As is already required in some local rules and model protocols, we expect to see ESI protocols include parties’ agreements regarding the number of custodians, search terms, the interplay of search terms vis-à-vis the wide range of technology assisted review (TAR) tools and date ranges. We also expect to see local rules, model orders and future protocols revised to include provisions regarding categories of privileged documents that do not have to be logged; the timing of producing documents, including beginning and end dates and privilege logs; statements that production will be made via copies rather than inspection; and the impact of the sequence of ESI protocols and Rule 34 responses and objections.

The Bottom Line

Rule 34 was revised to provide the requesting party with greater clarity about the scope of objections and whether information was withheld. Courts will certainly look to the specificity of objections and descriptions of what was withheld to determine whether these goals have been met. To reduce the risk of a court finding objections waived, use ESI protocols to help define the scope of what will be produced, what is withheld and what is and is not overbroad. Where the ESI protocol is not complete before the deadline to respond to document requests, craft objections that account for future agreements in the protocol. Finally, be diligent about supplementing objections to ensure that production timelines remain accurate, and that the outcome of ESI protocol negotiations are captured.