LEXSTAT USCS FED RULES CIV PROC R 34
UNITED STATES CODE SERVICE
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*** CURRENT THROUGH CHANGES RECEIVED SEPTEMBER, 2004 ***
FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
USCS Fed Rules Civ Proc R 34 (2004)
Review expert commentary from The National Institute for Trial Advocacy
Review Court Orders which may amend this Rule.
Rule 34. Production of Documents 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 and copy, any designated documents (including writings, drawings,
graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained,
translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and
copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which
are 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. Without leave of court 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, in which event the reasons for the objection
shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted
of the remaining parts. 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.
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.
(c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to
submit to an inspection as provided in Rule 45.
HISTORY:
(Amended March 19, 1948; July 1, 1970; Aug. 1, 1980; Aug. 1, 1987.)
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USCS Fed Rules Civ Proc R 34
(Amended Dec. 1, 1991; Dec. 1, 1993.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Other provisions:
Notes of Advisory Committee on Rules. In England orders are made for the inspection of documents, English Rules
Under the Judicature Act (The Annual Practice, 1937) O 31, rr 14 et seq., or for the inspection of tangible property or
for entry upon land, O 50, r 3. Michigan provides for inspection of damaged property when such damage is the ground
of the action. Mich Court Rules Ann (Searl, 1933) Rule 41, § 2.
Practically all states have statutes authorizing the court to order parties in possession or control of documents to
permit other parties to inspect and copy them before trial. See Ragland, Discovery Before Trial (1932), Appendix, p
267, setting out the statutes.
Compare former Equity Rule 58 (Discovery--Interrogatories--Inspection and Production of Documents--Admission
of Execution or Genuineness) (fifth paragraph).
Notes of Advisory Committee on 1946 amendments. Note. The changes in clauses (1) and (2) correlate the scope of
inquiry permitted under Rule 34 with that provided in Rule 26(b), and thus remove any ambiguity created by the former
differences in language. As stated in Olson Transportation Co. v Socony-Vacuum Oil Co. ED Wis 1944, 8 Fed Rules
Serv 34.41, Case 2, ". . . Rule 34 is a direct and simple method of discovery." At the same time the addition of the words
following the term "parties" makes certain that the person in whose custody, possession, or control the evidence reposes
may have the benefit of the applicable protective orders stated in Rule 30(b). This change should be considered in the
light of the proposed expansion of Rule 30(b).
An objection has been made that the word "designated" in Rule 34 has been construed with undue strictness in some
district court cases so as to require great and impracticable specificity in the description of documents, papers, books,
etc., sought to be inspected. The Committee, however, believes that no amendment is needed, and that the proper
meaning of "designated" as requiring specificity has already been delineated by the Supreme Court. See Brown v United
States, 1928, 276 US 134, 143, 72 L Ed 500, 48 S Ct 288 ("The subpoena . . . specifies . . . with reasonable particularity
the subjects to which the documents called for related."); Consolidated Rendering Co. v Vermont, 1908, 207 US 541,
543-544, 52 L Ed 327, 28 S Ct 178 ("We see no reason why all such books, papers and correspondence which related to
the subject of inquiry, and were described with reasonable detail, should not be called for and the company directed to
produce them. Otherwise, the State would be compelled to designate each particular paper which it desired, which
presupposes an accurate knowledge of such papers, which the tribunal desiring the papers would probably rarely, if
ever, have.").
Notes of Advisory Committee on 1970 amendments. 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.
The good cause requirement was originally inserted in Rule 34 as a general protective provision in the absence of
experience with the specific problems that would arise thereunder. As the note to Rule 26(b)(3) on trial preparation
material makes clear, good cause has been applied differently to varying classes of documents, though not without
confusion. It has often been said in court opinions that good cause requires a consideration of need for the materials and
of alternative means of obtaining them, i.e., something more than relevance and lack of privilege. But the overwhelming
proportion of the cases in which the formula of good cause has been applied to require a special showing are those
involving trial preparation. In practice, the courts have not treated documents as having a special immunity to discovery
simply because of their being documents. Protection may be afforded to claims of privacy or secrecy or of undue burden
or expense under what is now Rule 26(c) (previously Rule 30(b)). To be sure, an appraisal of "undue" burden inevitably
entails consideration of the needs of the party seeking discovery. With special provisions added to govern trial
preparation materials and experts, there is no longer any occasion to retain the requirement of good cause.
The revision of Rule 34 to have it operate extrajudicially rather than by court order, is to a large extent a reflection of
existing law office practice. The Columbia Survey shows that of the litigants seeking inspection of documents or things,
only about 25 percent filed motions for court orders. This minor fraction nevertheless accounted for a significant
number of motions. About half of these motions were uncontested and in almost all instances the party seeking
production ultimately prevailed. Although an extrajudicial procedure will not drastically alter existing practice under
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USCS Fed Rules Civ Proc R 34
Rule 34--it will conform to it in most cases--it has the potential of saving court time in a substantial though
proportionately small number of cases tried annually.
The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently
encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for
negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing.
Cf. Mich Gen Ct R 310.1(1) (1963) (testing authorized).
The inclusive description of "documents" is revised to accord with changing technology. It makes clear that Rule 34
applies to electronic data compilations from which information can be obtained only with the use of detection devices,
and that when the data can as a practical matter be made usable by the discovering party only through respondent's
devices, respondent may be required to use his devices to translate the data into usable form. In many instances, this
means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary
from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or
expense, either by restricting discovery or requiring that the discovering party pay costs. Similarly, if the discovering
party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his
records, confidentiality of nondiscoverable matters, and costs.
Subdivision (b).--The procedure provided in Rule 34 is essentially the same as that in Rule 33, as amended, and the
discussion in the note appended to that rule relevant to Rule 34 as well. Problems peculiar to Rule 34 relate to the
specific arrangements that must be worked out for inspection and related acts of copying, photographing, testing, or
sampling. The rule provides that a request for inspection shall set forth the items to be inspected either by item or
category, describing each with reasonable particularity, and shall specify a reasonable time, place, and manner of
making the inspection.
Subdivision (c).--Rule 34 as revised continues to apply only to parties. Comments from the bar make clear that in the
preparation of cases for trial it is occasionally necessary to enter land or inspect large tangible things in the possession
of a person not a party, and that some courts have dismissed independent actions in the nature of bills in equity for such
discovery on the ground that Rule 34 is preemptive. While an ideal solution to this problem is to provide for discovery
against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex. For the
present, this subdivision makes clear that Rule 34 does not preclude independent actions for discovery against persons
not parties.
Notes of Advisory Committee on 1980 amendments. Subdivision (b). The Committee is advised that, "It is
apparently not rare for parties deliberately to mix critical documents with others in the hope of obscuring significance."
Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar
Association (1977) 22. The sentence added by this subdivision follows the recommendation of the Report.
Notes of Advisory Committee on 1987 amendments. The amendment is technical. No substantive change is
intended.
Notes of Advisory Committee on 1991 amendment. 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 paragraph 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.
Notes of Advisory Committee on 1993 amendments. The rule is revised to reflect the change made by Rule 26(d),
preventing a party from seeking formal discovery prior to the meeting of the parties required by Rule 26(f). Also, like
a change made in Rule 33, the rule is modified to make clear that, if a request for production is objectionable only in
part, production should be afforded with respect to the unobjectionable portions.
When a case with outstanding requests for production is removed to federal court, the time for response would be
measured from the date of the parties' meeting. See Rule 81(c), providing that these rules govern procedures after
removal.
NOTES:
CROSS REFERENCES
Protective orders, USCS Rules of Civil Procedure, Rule 26(c).
Perpetuation of testimony, order and examination, USCS Rules of Civil Procedure, Rule 27(a)(3), (b).
Procedure if party fails to permit inspection, USCS Rules of Civil Procedure, Rule 37(a)(2).
Consequences of failure to comply with order, USCS Rules of Civil Procedure, Rule 37(b).
Subpoena for production of documentary evidence, USCS Rules of Civil Procedure, Rule 45(b).
Continuance to procure discovery opposing summary judgment, USCS Rules of Civil Procedure, Rule 56(f).
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USCS Fed Rules Civ Proc R 34
RESEARCH GUIDE
Federal Procedure:
MFEDPR5.02USCSTREAT, MFEDPR5.33USCSTREAT.
MFEDPR6.06USCSTREAT.
MFEDPR15.11USCSTREAT.
MFEDPR26.22USCSTREAT, MFEDPR26.25USCSTREAT, MFEDPR26.80USCSTREAT,
MFEDPR26.131USCSTREAT, MFEDPR26.152USCSTREAT.
MFEDPR27.12USCSTREAT, MFEDPR27.32USCSTREAT.
MFEDPR29.04USCSTREAT.
MFEDPR30.01USCSTREAT, MFEDPR30.03USCSTREAT, MFEDPR30.22USCSTREAT.
MFEDPR34.02USCSTREAT, MFEDPR34.03USCSTREAT,
MFEDPR34.10USCSTREAT-,MFEDPR34.16USCSTREAT.
MFEDPR35.12USCSTREAT.
MFEDPR37.02USCSTREAT, MFEDPR37.51USCSTREAT.
MFEDPR37A.03USCSTREAT, MFEDPR37A.10USCSTREAT-,MFEDPR37A.12USCSTREAT,
MFEDPR37A.31USCSTREAT-,MFEDPR37A.33USCSTREAT.
MFEDPR45.03USCSTREAT.
MFEDPR56.11USCSTREAT.
MFEDPR73.03USCSTREAT.
MFEDPR517.09USCSTREAT.
WEUSR612.07USCSTREAT.
WEUSR900.07USCSTREAT.
WEUSR1004.31USCSTREAT.
WEUSR1006.05USCSTREAT.
4 Fed Proc L Ed, Aviation and Space § 7:487.
6A Fed Proc L Ed, Class Actions § § 12:225, 280, 335.
7 Fed Proc L Ed, Condemnation of Property § 14:29.
7A Fed Proc L Ed, Copyrights § 18:149.
7A Fed Proc L Ed, Court of Claims § 19:194.
10 Fed Proc L Ed, Discovery and Depositions § § 26:6, 7, 9, 17, 19, 28, 32, 33, 34, 88, 107, 161, 200, 233, 254,
259, 288, 362, 368, 380, 418, 423.
10A Fed Proc L Ed, Discovery and Depositions § § 26:436-453, 457-469, 471-485, 486, 487, 488, 491-509, 540,
545, 611, 621, 646, 655, 679, 681, 685, 699, 706, 708, 709, 781, 793, 797.
11 Fed Proc L Ed, Employers' Liability Acts § § 30:116, 117.
15 Fed Proc L Ed, Freedom of Information § 38:513.
21 Fed Proc L Ed, Job Discrimination § § 50:952, 954.
23A Fed Proc L Ed, Monopolies and Restraints of Trade § § 54:309, 310, 312.
27 Fed Proc L Ed, Pleadings and Motions § § 62:52, 55, 115.
27A Fed Proc L Ed, Pleadings and Motions § 62:423.
28 Fed Proc L Ed, Pretrial Procedure § § 64:1, 10, 11.
28 Fed Proc L Ed, Process § § 65:246, 248, 249, 253-255, 85, 286, 289.
32 Fed Proc L Ed, Trademarks § 74:269.
Am Jur:
BANKS1084.
DEPO_DISC2, DEPO_DISC12, DEPO_DISC15, DEPO_DISC50, DEPO_DISC70, DEPO_DISC95,
DEPO_DISC134, DEPO_DISC146, DEPO_DISC147, DEPO_DISC149, DEPO_DISC156,
DEPO_DISC161-DEPO_DISC165.
Eminent_Domain546.
EXECUTIONS_ENFORCEMENT714, EXECUTIONS_ENFORCEMENT715.
Federal_Courts2110, Federal_Courts2426.
Job_Discrimination2341.
Labor_Labor_Relations3675, Labor_Labor_Relations4596, Labor_Labor_Relations4605.
MONOPOLIES551-MONOPOLIES553.
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USCS Fed Rules Civ Proc R 34
PRETRIAL16.
PRETRIAL27.
PRIV_FRANCH847, PRIV_FRANCH853.
Products_Liability1786.
Am Jur Trials:
3 Am Jur Trials, Selecting the Forum--Defendant's Position, p. 611.
3 Am Jur Trials, Tactics and Strategy of Pleading, p. 681.
4 Am Jur Trials, Motions for Production and Inspection, p. 223.
7 Am Jur Trials, Motorboat Accident Litigation, p. 1.
9 Am Jur Trials, Railroad Trespasser Accident Litigation, p. 245.
11 Am Jur Trials, Litigation Under the Federal Employers' Liability Act, p. 397.
12 Am Jur Trials, Products Liability Cases, p. 1.
15 Am Jur Trials, Discovery and Evaluation of Medical Records, p. 373.
21 Am Jur Trials, Employment Discrimination Action Under Federal Civil Rights Acts, p. 1.
21 Am Jur Trials, Franchise Litigation, p. 453.
21 Am Jur Trials, Preparation and Trial of Federal Class Actions, p. 625.
24 Am Jur Trials, Defending Antitrust Lawsuits, p. 1.
71 Am Jur Trials, How to Conduct International Discovery, p. 1.
71 Am Jur Trials, Computer Technology in Civil Litigation, p. 111.
74 Am Jur Trials, Disability Discrimination Based on Dyslexia in Employment Actions Under the Americans with
Disabilities Act, p. 255.
75 Am Jur Trials, Age Discrimination in Employment Action Under ADEA, p. 363.
79 Am Jur Trials, Premises Liability--Trip and Fall, p. 285.
86 Am Jur Trials, Arbitration Highways to the Courthouse--A Litigator's Roadmap, p. 111.
89 Am Jur Trials, Fitness Club and Health Spa Injuries, p. 405.
Am Jur Proof of Facts:
64 Am Jur Proof of Facts 3d, Topic: Proof of Objections to Discharge of Individual Debtor Under 11 U.S.C.A. §
727(A) [11 USCS § 727(A)] and Fed. R. Bankr. P. 7001 in a Liquidation Bankruptcy Case Under Chapter 7 of the
Bankruptcy Code [11 USCS § § 701 et seq.], p. 113.
71 Am Jur Proof of Facts 3d, Enforcement of Casino Gambling Debts, p. 193.
14 Am Jur Proof of Facts, Admissibility of Computerized Business Records, p. 173.
Forms:
5 Fed Procedural Forms L Ed, Class Actions (1996) § 11:95.
8 Fed Procedural Forms L Ed, Discovery and Depositions (2001) § 23:39.
8A Fed Procedural Forms L Ed, Discovery and Depositions (2001) § § 23:381-413, 417-429, 432-434, 461, 465.
9 Fed Procedural Forms L Ed, Enforcement of Judgments (1999) § § 28:113, 114.
12 Fed Procedural Forms L Ed, Job Discrimination (1998) § 45:153.
12A Fed Procedural Forms L Ed, Labor and Labor Relations (1998) § 46:333.
12B Fed Procedural Forms L Ed, Monopolies and Restraints of Trade (2000) § 48:193.
8A Am Jur Pl & Pr Forms (2004), Deposition and Discovery, § § 403, 438, 440-442, 446-448, 450-454, 491-495,
497, 499-504, 525, 530, 554, 673, 683, 698.
10 Am Jur Pl & Pr Forms (1996), Executions, § 533.
11A Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § § 902-921, 924-926.
23B Am Jur Pl & Pr Forms (2002), Trial, § 11.
Motion for production of documents, etc., under Rule 34, Federal Rules of Civil Procedure, Appendix of Forms,
Form 24.
Annotations:
Supreme Court's views as to application of Fifth Amendment privilege against self-incrimination to compulsory
production of documents. 48 L Ed 2d 852.
Supreme Court's views as to application of Fourth Amendment prohibition against unreasonable searches and
seizures to compulsory production of documents. 48 L Ed 2d 884.
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USCS Fed Rules Civ Proc R 34
Amenability of National Labor Relations Board or its personnel to discovery. 4 ALR Fed 493.
Scope of judicial review under Freedom of Information Act (5 USC § 552(a)(3)), of administrative agency's
withholding of records. 7 ALR Fed 876.
Construction and application of § 220(f) of Interstate Commerce Act (49 USCS § 320(f)) prohibiting admission in
evidence, or use for other purposes, of accident report made by motor carrier pursuant to ICC requirement, or of
accident investigation report by ICC, in damage suit growing out of matter in such reports. 12 ALR Fed 941.
Absent class members in class action under Rule 23 of Federal Rules of Civil Procedure as subject to discovery. 13
ALR Fed 255.
Discovery for purposes of determining whether class action requirements under Rule 23(a) and (b) of Federal Rules
of Civil Procedure are satisfied. 24 ALR Fed 872.
Discovery, under Federal Rules of Civil Procedure, in actions brought by private plaintiffs under equal employment
opportunity provisions of Civil Rights Act of 1964, as amended (42 USCS § § 2000e et seq.). 31 ALR Fed 657.
Independent action against nonparty for production of documents and things or permission to enter upon land (Rule
34(c) of Federal Rules of Civil Procedure). 62 ALR Fed 935.
Waiver by Federal Government agency as affecting agency's right to claim exemption from disclosure requirements,
under the Freedom of Information Act (5 USCS § 552(b)). 67 ALR Fed 595.
Right of party in civil action to obtain disclosure, under Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal
Procedure, of matters occurring before grand jury. 71 ALR Fed 10.
What conduct constitutes multiplying proceedings unreasonably and vexatiously so as to warrant imposition of
liability on counsel under 28 USCS § 1927 for excess costs, expenses, and attorney fees. 81 ALR Fed 36.
Propriety of state court's grant or denial of application for pre-action production or inspection of documents, persons,
or other evidence. 12 ALR5th 577.
Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally
represented contemporaneously by same attorney, with reference to communication to or from one party. 4 ALR4th
765.
Propriety of discovery order permitting "destructive testing" of chattel in civil case. 11 ALR4th 1245.
Photographs of civil litigant realized by opponent's surveillance as subject to pretrial discovery. 19 ALR4th 1236.
Discoverability of traffic accident reports and derivative information. 84 ALR4th 15.
Discovery and inspection of articles and premises in civil actions other than for personal injury or death. 4 ALR3d
762.
Discovery and inspection: compelling party to disclose information in hands of affiliated or subsidiary corporation,
or independent contractor, not made party to suit. 19 ALR3d 1134.
Who has possession, custody, or control of corporate books or records for purposes of order to produce. 47 ALR3d
676.
Necessity and sufficiency, under rules governing modern pretrial discovery practice, of "designation" of documents,
etc., in application or motion. 8 ALR2d 1134.
Discovery and inspection of article or premises the condition of which is alleged to have caused personal injury or
death. 13 ALR2d 657.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection. 73 ALR2d 12.
Taxation of cost and expenses in proceedings for discovery or inspection. 76 ALR2d 953.
Time and place, under pretrial discovery procedure, court inspection and copying of opposing litigant's book,
records, and papers. 83 ALR2d 302.
Discovery, inspection, and copying of photographs of article or premises, the condition of which gave rise to instant
litigation. 95 ALR2d 1061.
Texts:
Schweitzer, Cyclopedia of Trial Practice (2d ed).
Tennenhouse, Attorney's Medical Deskbook, Chapter 7, Sources of Medical Records.
Law Review Articles:
Haydock & Herr, Production of Results under Rule 34. 5 Am Journal of Trial Advocacy 253.
Palmeri; Quinn. Work product in subsequent litigation: the Tenth Circuit enters the fray. 27 Colo Law 79, July
1998.
Note, Federal discovery rules: Effects of the 1970 amendments. 8 Columbia Journal of Law & Social Problems
623.
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USCS Fed Rules Civ Proc R 34
Smith and Kelleher, Dealing with the EEO Officer Who Files A Discrimination Complaint. 8 Employee Rel L J 92.
Maciszewski, Pretrial discovery: Change in the federal rule. 7 Hawaii Bar J 48.
Johnston, Discovery in Illinois and Federal Courts. 15 John Marshall L Rev 1.
Sales, Discovery problems in aviation litigation. 38 Journal of Air L & Commerce 101.
Sagor. Victory is in the documents. 23 Litig 36, Winter 1997.
Pope, Rule 34: Controlling the Paper Avalanche. 7 Litigation 28.
Swartz, New federal rules on discovery. 55 Mass LQ 345.
Tomlinson, Use of the Freedom of Information Act for Discovery Purposes. 43 Md L Rev 119.
Welling, Discovery of Nonparties' Tangible Things Under the Federal Rules of Civil Procedure. 59 Notre Dame L
Rev 110.
Cohen. Expert witness discovery versus the work product doctrine: choosing a winner in government contracts
litigation. 27 Pub Cont L J 719, Summer 1998.
Underwood, Discovery According to Federal Rule 34. 26 The Practical Lawyer 55.
A symposium on the 1993 amendments to the Federal Rules of Civil Procedure. 29 Tort & Ins LJ 467, Spring,
1994.
Wilson, Rules Pertaining to Discoverability of Expert Opinion Evidence in Federal Court. 27 Tr Law Guide 411.
INTERPRETIVE NOTES AND DECISIONS
I. IN GENERAL
1. Generally
2. Construction
3. Purpose and use
4. Relation to other provisions
5. --Rule 26 (depositions and discovery)
6. --Rule 33 (interrogatories)
7. --Rule 45 (subpoenas)
8. --Rules of Criminal Procedure
9. --Foreign law
II. SCOPE (subd (a))
A. In General
10. Generally
11. Elimination of good cause requirement
12. Parties to action
13. --Assignee of party
14. --Brokerage houses
15. --Class members
16. --Counsel
17. --Executors and administrators
18. --Garnishee
19. --Government; officers and employees
20. --Insurer
21. --Subsidiaries
22. Relevancy
23. Description of items; reasonable particularity
24. --Blanket request
25. --By category
26. --Sufficiency of particular descriptions
27. Pleadings limitations
28. Time limitations
29. Data compilations
30. Drawings, graphs, charts, photographs, and phono-records
31. --Accident scene
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USCS Fed Rules Civ Proc R 34
32. Entry on land or other property
33. --Injury scene
34. --Pollution source
35. Tangible things
36. --Seized goods
37. --Testing
B. Writings
38. Generally
39. Preparation
40. Translation
41. Particular records and reports; accident
42. --Contracts
43. --Defamatory statements
44. --Employment
45. --Financial
46. --Insurance
47. --Law enforcement
48. --Medical
49. --Parties' statements
50. --Patents
51. --Prison
52. --Product and consumer reports
53. --Public records
54. --Settlements
55. --Stock and stockholders
56. --Tax
57. --Witnesses' statements
58. Miscellaneous
C. Possession, Custody, or Control
59. Generally
60. Independent means of obtaining
61. Documents in possession of requesting party
62. Sufficiency of assertion of possession or control
63. Particular custodians; assignee
64. --Corporate officer or director
65. --Counsel
66. --Government; agency or official
67. --Insurer
68. --Physician or hospital
69. --Subsidiaries or affiliates
70. --Miscellaneous
III. PROCEDURE
71. Generally
72. Preliminary discovery
73. Intervention of court
74. Necessity of request
75. Service of request
76. Time of request
77. --Delay
78. Response to request
79. --Assertion of privilege
80. --Timeliness
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USCS Fed Rules Civ Proc R 34
81. Motion on objection or failure to respond
82. --Verification
83. --Burden of proof
84. ----Existence of matter sought
85. Orders on motion
86. --Courts' discretion
87. Enforcement of order; sanctions, generally
88. --Contempt
89. --Default judgment
90. --Dismissal
91. --Fees and costs
92. Segregation of documents
93. Time and place of inspection
94. Other procedural matters
95. --Evidentiary matters
IV. PERSONS NOT PARTIES
96. Generally
I. IN GENERAL
1. Generally
Pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of most significant innovations of
Federal Rules of Civil Procedure; under prior federal practice, pre-trial functions of notice-giving, issue-formulation and
fact-revelation were performed primarily and inadequately by pleadings, and inquiry into issues and facts before trial
was narrowly confined and was often cumbersome in method, but new rules restrict pleadings to task of general
notice-giving and invest deposition-discovery process with vital role in preparation for trial. Hickman v Taylor (1947)
329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395.
Rule 34 is sufficiently flexible to be adapted to exigencies of particular litigation. Societe Internationale Pour
Participations Industrielles et Commerciales, S. A. v Rogers (1958) 357 US 197, 2 L Ed 2d 1255, 78 S Ct 1087
(disagreed with by multiple cases as stated in Re Sealed Case, 263 App DC 357, 825 F2d 494, 23 Fed Rules Evid Serv
494, cert den 484 US 963, 98 L Ed 2d 391, 108 S Ct 451).
Discovery provisions of these rules may be invoked in original proceeding in court of appeals. Bethlehem
Shipbuilding Corp. v NLRB (1941, CA1) 120 F2d 126, 8 BNA LRRM 500, 4 CCH LC P 60519.
It is policy of American courts to weigh need for asserted governmental privilege against disclosure of information in
government records independently of evaluation of executive officer of government. Carr v Monroe Mfg. Co. (1970,
CA5 Miss) 431 F2d 384, 2 BNA FEP Cas 891, 2 CCH EPD P 10284, 14 FR Serv 2d 484, cert den 400 US 1000, 27 L
Ed 2d 451, 91 S Ct 456, 3 BNA FEP Cas 30, 3 CCH EPD P 8080 and (disagreed with by Re Grand JUry Subpoena for
New York State Income Tax Records (CA2 NY) 607 F2d 566, 79-2 USTC P 9639, 44 AFTR 2d 79-5568) and (disagreed
with by Newton v National Broadcasting Co. (CA9 Nev) 726 F2d 591, 38 FR Serv 2d 1067) and (disagreed with by
Corporacion Insular de Seguros v Garcia (CA1 Puerto Rico) 876 F2d 254).
Taking depositions and obtaining production of documents are ordinarily most convenient and efficient methods of
discovery. Chemical Foundation, Inc. v Universal-Cyclops Steel Corp. (1941, DC Pa) 1 FRD 533, 48 USPQ 216.
Opportunities for factual suppression and surprise at trial should be avoided by court if possible after considering all
of relevant interests legally and prudently to be considered by court in specific situations. Zimmerman v Poindexter
(1947, DC Hawaii) 74 F Supp 933.
2. Construction
This rule should be liberally construed. June v George C. Peterson Co. (1946, CA7 Ill) 155 F2d 963; Monarch
Liquor Corp. v Schenley Distillers Corp. (1941, DC NY) 2 FRD 51; Canty v Great Lakes Transit Corp. (1941, DC NY)
2 FRD 156; Hercules Powder Co. v Rohm & Haas Co. (1944, DC Del) 4 FRD 452, 66 USPQ 138; Harnischfeger Corp.
v Miller Electric Mfg. Co. (1955, DC Wis) 18 FRD 3, 107 USPQ 212; United States v Maryland & Virginia Milk
Producers Asso. (1957, DC Dist Col) 20 FRD 441; Buckley v Vidal (1970, SD NY) 50 FRD 271, 14 FR Serv 2d 761;
American President Lines v Hartford Fire Ins. Co. (1971, ED Pa) 55 FRD 61, 16 FR Serv 2d 449; Mitsui & Co. v
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USCS Fed Rules Civ Proc R 34
Puerto Rico Water Resources Authority (1978, DC Puerto Rico) 26 FR Serv 2d 377, adhered to (DC Puerto Rico) 26 FR
Serv 2d 380, app den (CA1 Puerto Rico) 26 FR Serv 2d 341.
Court would reject construction of Rule 34(a) that there was significant distinction between making "copies" and
"photographs." Diapulse Corp. of America v Curtis Publishing Co. (1967, CA2 NY) 374 F2d 442, 10 FR Serv 2d 1029.
Diligence by all parties in securing facts in preparation for trial is essential element in our adversary system of
justice, and, under circumstances, policy favoring free access to facts outweighs any potentially adverse effects upon
adversary system that might result from production of statements sought. Southern R. Co. v Lanham (1968, CA5 Ga)
403 F2d 119, 12 FR Serv 2d 860, 33 ALR3d 427, reh den (CA5 Ga) 408 F2d 348.
This rule is more rigid than rules relating to depositions and interrogatories. Heiner v North American Coal Corp.
(1942, DC Pa) 3 FRD 63.
Framework within which discovery rules are to be interpreted is securing of just, speedy, and inexpensive
determination of every action; hence, rules are to be liberally construed. Hess v Pittsburgh Steel Foundry & Machine
Co. (1970, WD Pa) 49 FRD 271, 14 FR Serv 2d 501.
This rule is to be liberally construed, and where plaintiff made request for production of documents, to which
defendant did not object, documents must also be made available to third-party defendant. American President Lines v
Hartford Fire Ins. Co. (1971, ED Pa) 55 FRD 61, 16 FR Serv 2d 449.
Term "not privileged," as used in Rules 34 and 26(b), refers to a "privilege" as that term is used in law of evidence.
Lincoln American Corp. v Bryden (1973, DC Kan) 375 F Supp 109, 19 FR Serv 2d 150.
"Control" under FRCP 34 is to be broadly construed so that party may be obligated to produce documents requested
even though party may not actually possess documents; as long as party has legal right or ability to obtain documents
from another source on demand, that party is deemed to have "control." Poole v Textron, Inc. (2000, DC Md) 192 FRD
494, 46 FR Serv 3d 572.
FRCP 34(a) only requires party to produce documents that are already in existence; party is not required to prepare,
or cause to be prepared, new documents solely for their production. Alexander v FBI (2000, DC Dist Col) 194 FRD 305.
Since FRCP 34(b) requires reasons for any objections to be explicitly stated, rule implicitly provides for waiver
when objections are not stated; relief from such waiver may be obtained for good cause. Drexel Heritage Furnishings,
Inc. v Furniture USA, Inc. (2001, MD NC) 200 FRD 255.
3. Purpose and use
Privilege of inspecting documents and examining witnesses may not be used for purposes of delay. Brockway Glass
Co. v Hartford-Empire Co. (1942, DC NY) 2 FRD 267, 52 USPQ 539.
This rule facilitates pursuit of evidence of matters out of which evidence may emerge but is not intended for erection
of program of insurance against familiar hazards of production of testimony in trials. Walla v Chicago, B. & Q. R. Co.
(1956, DC Neb) 19 FRD 352.
Party who proceeds in courts under rules subjects himself to rules of pretrial examination and production, and
general intent of rules, with certain exceptions, is early rather than late revelation. Rubenstein v Kleven (1957, DC
Mass) 21 FRD 183.
In view of liberal spirit of these rules, court should be disposed to grant such discovery as will accomplish full
disclosure of facts, eliminate surprise, and promote settlement. Crowe v Chesapeake & O. R. Co. (1961, ED Mich) 29
FRD 148, 5 FR Serv 2d 586.
Purpose of these rules is to require production of materials which may aid in speedy determination of trial, and to
procure truth and facts as they relate to matter for purpose of avoiding long trials by narrowing points in issue. United
States v Ling-Temco-Vought, Inc. (1970, WD Pa) 49 FRD 150, 1970 CCH Trade Cases P 73230, 14 FR Serv 2d 235.
Purpose of discovery is to provide orderly, efficient, and effective means for ascertaining truth in order to expedite
determination of controversy on merits, and that purpose not only demands dignity, order, and decorum, but also
unswerving attention to business at hand. Harlem River Consumers Cooperative, Inc. v Associated Grocers of Harlem,
Inc. (1972, SD NY) 54 FRD 551, 1972 CCH Trade Cases P 73940, 15 FR Serv 2d 1341.
Rule 34 is designed to permit broadest sweep of access. Morales v Turman (1972, ED Tex) 59 FRD 157, 17 FR
Serv 2d 1039.
Premise of Rule 34 is that parties are entitled to inspect documents in possession of other parties as matter of course,
for purpose of assisting in preparation of their case for trial if documents they seek are relevant to subject matter
involved in pending action and are not privileged. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
Rule 34 provides that relevant and non-privileged documents and objects in possession of one party be made
available to other, thus eliminating surprise and permitting issues to be simplified and trial to be expedited. Securities
& Exchange Com. v Samuel H. Sloan & Co. (1973, SD NY) 369 F Supp 994, 17 FR Serv 2d 882.
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USCS Fed Rules Civ Proc R 34
Discovery of documents from party, as distinct from non-party, is not accomplished pursuant to FRCP 45; FRCP 45,
to extent it concerns discovery, is directed at non-parties, and FRCP 34 governs discovery of documents in possession
or control of parties themselves. Hasbro, Inc. v Serafino (1996, DC Mass) 168 FRD 99.
Since purpose of FRCP 34 is to make relevant and nonprivileged documents and objects in possession of one party
available to other party, party may inspect any document that is relevant to pending subject matter; however, court may
not compel one party to sign release form so that other party may obtain documents such as medical records. Clark v
Vega Wholesale (1998, DC Nev) 181 FRD 470.
Inclusion of references to FRCP 45 within FRCP 26(a)(5) and FRCP 34(c) is clear indication that procuring
documents from nonparties can constitute discovery, and although neither FRCP 45 nor FRCP 34 contains any time
limit within which to procure documents from third parties, this does not mean that party should be allowed to employ
subpoena after discovery deadline to obtain materials from third parties that could have been produced during
discovery. Alper v United States (2000, DC Mass) 190 FRD 281.
FRCP 34(a) only requires party to produce documents that are already in existence; party is not required to prepare,
or cause to be prepared, new documents solely for their production. Alexander v FBI (2000, DC Dist Col) 194 FRD 305.
If party fails to disclose expert witness report required by FRCP 26(a)(2)(B), proper method to obtain production of
such report is by motion under FRCP 37(a)(2), rather than by motion under FRCP 34. Smith v Transducer Tech., Inc.
(2000, DC VI) 197 FRD 260.
FRCP 34, when read in conjunction with FRCP 26(b), must be broadly construed to require production of relevant
physical evidence, including handwriting exemplars. Harris v Athol-Royalston Regional School Dist. (2001, DC Mass)
200 FRD 18.
Requests for production of documents served on nonparties are nullity; discovery of nonparties must be conducted
by subpoena pursuant to FRCP 45. Lehman v Kornblau (2001, ED NY) 206 FRD 345.
Regardless of whether request is made pursuant to FRCP 34 or FRCP 35, party may obtain fingerprints of another
party or person under such other party's control upon establishing that such evidence is relevant and that there is good
cause for obtaining fingerprints of such other party or person. Harris v Athol-Royalston Reg'l Sch. Dist. Comm. (2002,
DC Mass) 206 FRD 30.
4. Relation to other provisions
Party may, in proper case, proceed under Rule 27 of these rules for order under this rule, without taking deposition.
Martin v Reynolds Metals Corp. (1961, CA9 Or) 297 F2d 49, 5 FR Serv 2d 467.
Rule 12(e) was not intended to and should not be invoked as means of exploring and discovering evidence, in view
of procedure set up under Rules 26, 33, 36, 37, and this rule. Montgomery Ward & Co. v Schumacher (1944, DC Cal)
3 FRD 368.
Rule 34 is direct and simple method of discovery, less cumbersome than depositions and interrogatories, and being
independent of Rules 26, 30, and 31, it is not necessary for person to proceed under last mentioned rules before
resorting to Rule 34. Olson Transp. Co. v Socony-Vacuum Oil Co. (1944, DC Wis) 7 FRD 134.
Although deposition-discovery rules are integrated mechanisms, they are each susceptible of independent use, and it
is not necessary first to take deposition before resorting to Rule 34; Rules 26, 30, 30 and 34 may be utilized
independently, simultaneously, or progressively, so long as requirements of rule or rules invoked are met. Hawaiian
Airlines, Ltd. v Trans-Pacific Airlines, Ltd. (1948, DC Hawaii) 8 FRD 449.
Under this rule some special circumstances must exist that suggest that justice will be served by going beyond
interrogatories and depositions and requiring production of documents and other matters. United States v Great
Northern R. Co. (1955, DC Cal) 18 FRD 357.
Discovery rules are to be read together. Thompson v Hoitsma (1956, DC NJ) 19 FRD 112.
Federal rules relating to discovery must be read in pari materia, and these rules should be interpreted and applied in
light of their well-known purposes. Crowe v Chesapeake & O. R. Co. (1961, ED Mich) 29 FRD 148, 5 FR Serv 2d
586.
Because Rule 30(f)(2) provided method of obtaining copies of deposition transcripts, plaintiff could not utilize
procedures available in other rules to accomplish same end. Kinan v Brockton Massachusetts (1986, DC Mass) 112
FRD 206.
State civil rights law merely established preliminary judicial procedure for determining relevance of police files
subject to disclosure in civil action and while not directly applicable in federal civil rights cases, state's legitimate
concern in protecting confidentiality of police officers' personnel files is proper consideration to be balanced against
plaintiff's interest in disclosure. Unger v Cohen (1989, SD NY) 125 FRD 67.
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USCS Fed Rules Civ Proc R 34
Depending upon nature and volume of documents or things sought by deposition notice, that part of notice which
seeks production of documents from party may be foreclosed, either directly or impliedly, by court's scheduling order in
which time for written discovery expired. Carter v United States (1995, DC Mass) 164 FRD 131.
Because discovery materials themselves are not served on party (FRCP 34), they need not be filed, since FRCP 5(d)
provides that only those papers after complaint that are required to be served upon party must be filed with court. In re
NASDAQ Market-Makers Antitrust Litig. (1996, SD NY) 164 FRD 346, 1996-1 CCH Trade Cases P 71282.
Response to request for production of documents which merely promises to produce requested documents at some
unidentified time in future, without offering specific time, place and manner, is not complete answer as required by
FRCP 34(b), and therefore, pursuant to FRCP 37(a)(3) is treated as failure to answer or respond. Jayne H. Lee, Inc. v
Flagstaff Indus. Corp. (1997, DC Md) 173 FRD 651, 38 FR Serv 3d 1347.
Where party fails to move for order compelling adversary to comply with request for production of documents, court
does not have authority to sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84
AFTR 2d 6063.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
5. --Rule 26 (depositions and discovery)
Discovery rules themselves place no limitations on what party may do with materials obtained in discovery,
therefore, party or person from whom discovery is sought must establish under Rule 26(c) "good cause" for any
restriction on use of discovery documents; without protective order, materials obtained in discovery may be
disseminated to public. Re Halkin (1979) 194 App DC 257, 598 F2d 176, 4 Media L R 2025, 26 FR Serv 2d 798, affd
223 App DC 254, 690 F2d 977, 11 Fed Rules Evid Serv 1381, 34 FR Serv 2d 1611 and (disapproved on other grounds
by Snepp v United States, 444 US 507, 62 L Ed 2d 704, 100 S Ct 763, 5 Media L R 2409 as stated in Tavoulareas v
Washington Post Co., 233 App DC 126, 724 F2d 1010, 10 Media L R 1129, 38 FR Serv 2d 495.
Scope of discovery under Rule 34 relating to production of documents is as broad as that under rule providing for
taking of depositions. Connecticut Importing Co. v Continental Distilling Corp. (1940, DC Conn) 1 FRD 190.
If party does not have sufficient information to describe document desired to be inspected, he may take depositions
of opposing party's officers to obtain exact information as to existence, description, custody, and location of such
document. Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD 333; 64 USPQ 387; Callen v Pennsylvania R. Co.
(1946, DC Pa) 5 FRD 83; Synek v McCarthy (1948, DC NY) 8 FRD 323, 79 USPQ 64.
Rule 34 must be construed in pari materia with Rule 45 relating to subpoenas and Rule 26 relating to depositions.
Rosseau v Langley (1945, DC NY) 7 FRD 170; Hawaiian Airlines, Ltd. v Trans-Pacific Airlines, Ltd. (1948, DC
Hawaii) 8 FRD 449.
This rule must be read in connection with Rule 26(b). Fahey v United States (1955, DC NY) 18 FRD 231.
Discovery rules are to be read together so that any discovery of tangible matters permissible on deposition under
Rule 26(b) may be generally obtainable under this rule. Thompson v Hoitsma (1956, DC NJ) 19 FRD 112.
While Rule 34 no longer requires showing of "good cause" to justify request for production of documents,
production is still subject to limitations imposed upon scope of discovery by Rule 26(b). Tinder v McGowan (1970,
WD Pa) 15 FR Serv 2d 1608.
There is no rule precluding Rule 34 motion prior to taking of deposition. Buckley v Vidal (1970, SD NY) 50 FRD
271, 14 FR Serv 2d 761.
In ruling on plaintiffs' request for correspondence in defendants' possession, court need only be satisfied that
correspondence is relevant and may lead to discovery of relevant evidence; if correspondence should prove to contain
privileged matter under requirements of Rule 26, defendants could reassert claim of privilege in specific manner and
with regard to specific documents or correspondence. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
Demand for documents must satisfy requirement of relevance under Rule 26(b)(1) as incorporated by reference in
Rule 34(a). Mallinckrodt Chemical Works v Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348, CCH Fed Secur L
Rep P 93793, 16 FR Serv 2d 1517.
Amendments of 1970 eliminated "good cause" requirement under Rule 34, and clear intent of eliminating
amendment was to liberalize permissible discovery under that rule; Rule 26(b) as amended in 1970 should not be
interpreted as engrafting good cause requirement back into Rule 34. Galambus v Consolidated Freightways Corp.
(1974, DC Ind) 64 FRD 468.
Assuming that written statements are inter- or intra-agency memoranda or letters which would not be available to
party in litigation with government agency under Freedom of Information Act, such statements would ordinarily be
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USCS Fed Rules Civ Proc R 34
subject to discovery under Rule 34(a), subject to scope limitations of Rule 26(b)(3). Brockway v Department of Air
Force (1974, ND Iowa) 370 F Supp 738, revd on other grounds (CA8 Iowa) 518 F2d 1184.
In context of Rule 34 document production request, court applied Rule 26(b)(4)(A)(ii) in ordering discovery of
reports of experts, including reports embodying preliminary conclusions, where expert testimony would undoubtedly be
crucial to resolution of complex and technical factual disputes in case, and effective cross-examination would be
essential. Quadrini v Sikorsky Aircraft Div., United Aircraft Corp. (1977, DC Conn) 74 FRD 594, 24 FR Serv 2d 156.
Inadvertent disclosure of documents protected by attorney-client privilege during production of documents pursuant
to Rule 34 operates as waiver of privilege. International Digital Systems Corp. v Digital Equipment Corp. (1988, DC
Mass) 120 FRD 445, 12 FR Serv 3d 1151.
When FRCP 34(c) is read with FRCP 26(a)(2), it is clear that all documents provided to party's expert witness must
be produced on request. Furniture World v D.A.V. Thrift Stores (1996, DC NM) 168 FRD 61.
If party fails to disclose expert witness report required by FRCP 26(a)(2)(B), proper method to obtain production of
such report is by motion under FRCP 37(a)(2), rather than by motion under FRCP 34. Smith v Transducer Tech., Inc.
(2000, DC VI) 197 FRD 260.
FRCP 34, when read in conjunction with FRCP 26(b), must be broadly construed to require production of relevant
physical evidence, including handwriting exemplars. Harris v Athol-Royalston Regional School Dist. (2001, DC Mass)
200 FRD 18.
Failure to follow requirements of FRCP 26(b)(5) and 34(b) may result in waiver of work product protection.
Anderson v Hale (2001, ND Ill) 202 FRD 548.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
Employee's Fed. R. Civ. P. 34(a)(2) motion to compel employer to allow her to inspect areas in two of its facilities
was denied where employee justified her request by little more than, "it could help," made little attempt to demonstrate
inspection's relevance, and used language that was tantamount to boilerplate; thus, she did not demonstrate necessity for
inspection, and it appeared that information sought was obtainable from some other source that was more convenient,
less burdensome, or less expensive. Johnson v Mundy Indus. Contrs., Inc. (2002, ED NC) 52 FR Serv 3d 511.
Defendants violated Fed. R. Civ. P. 5(a) when they did not serve their discovery requests on all parties, or even on
corporation's local counsel; because defendants properly served all parties with discovery month later, and corporation
then responded to discovery, corporation's responses were timely. DIRECTV, Inc. v Trone (2002, DC Cal) 209 FRD
455.
Plaintiff was permitted to discover relevant documents and information in defendants' computer equipment that had
been deleted because computer documents were discoverable information. Antioch Co. v Scrapbook Borders, Inc.
(2002, DC Minn) 210 FRD 645.
Court granted defendant's Fed. R. Civ. P. 37 motion to compel plaintiff to produce, under Fed. R. Civ. P. 34, letters
prepared by her attorney for, and relied upon by, plaintiff's expert witness; court acknowledged tension between expert
witness disclosure requirements of Fed. R. Civ. P. 26(a)(2)(B) and work-product doctrine codified in Fed. R. Civ. P.
26(b)(3), but history of R. 26 and cases interpreting it, and policy reasons underlying discovery in general supported
bright-line rule of disclosure, yet, even if court accepted rule that "core work-product" was not discoverable, attorney's
letters, which simply described facts, did not contain core attorney work-product. Baum v Village of Chittenango (2003,
ND NY) 218 FRD 36.
In creditors committee's fraud suit against debtor's officers, directors, and professional employees, court denied
committee's Fed. R. Civ. P. 37 motion to compel production (Fed. R. Civ. P. 34) of personnel files of individual
auditors; Cal. Const. art. I, § 1 protected those files from disclosure, and because committee could depose auditors,
committee did not have substantial need for files. Official Unsecured Creditors Comm. of Media Vision Tech., Inc. v
Jain (2003, ND Cal) 215 FRD 587.
6. --Rule 33 (interrogatories)
While it is true that discovery against absentee class members under USCS Rules of Civil Procedure 33 and 34
cannot be had as matter of course, overwhelming majority of courts which have considered scope of discovery against
absentees have concluded that such discovery is available, at least when information requested is relevant to decision of
common questions, when interrogatories or document requests are tendered in good faith and are not unduly
burdensome, and when information is not available from representative parties. Dellums v Powell (1977) 184 App DC
275, 566 F2d 167, 24 FR Serv 2d 20, later proceeding 184 App DC 339, 566 F2d 231, 24 FR Serv 2d 182 and cert den
438 US 916, 57 L Ed 2d 1161, 98 S Ct 3146, 98 S Ct 3147, reh den 439 US 886, 58 L Ed 2d 201, 99 S Ct 234 and
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USCS Fed Rules Civ Proc R 34
(disagreed with by Cruz v Beto (CA5 Tex) 603 F2d 1178) and (disapproved on other grounds by Carey v Piphus, 435
US 247, 55 L Ed 2d 252, 98 S Ct 1042 (not followed by Parrish v Johnson (CA6 Mich) 800 F2d 600 (disagreed with by
Berry v Muskogee (CA10) 1989 US App LEXIS 17441, op withdrawn))) as stated in Bell v Little Axe Independent School
Dist. (CA10 Okla) 766 F2d 1391 (disapproved on other grounds by Memphis Community School Dist. v Stachura, 477
US 299, 91 L Ed 2d 249, 106 S Ct 2537.
Interrogatory requesting copy of written report of defendant's investigator would be denied, since report was
"document" or "paper." Taylor v Sound S.S. Lines, Inc. (1951, DC Conn) 100 F Supp 388.
In absence of proof of harassment and oppressive burden, party may utilize both Rule 34 and Rule 33. Chatman v
American Export Lines, Inc. (1956, DC NY) 20 FRD 176.
Copies of reports, records, statements, and photographs should be sought under Rule 34 by motion for discovery and
inspection rather than by interrogatories under Rule 33. Bohlin v Brass Rail, Inc. (1957, DC NY) 20 FRD 224.
Party propounding interrogatories should not be permitted to compel his opponent to make compilations or perform
research and investigations with respect to statistical information which he might make himself by obtaining production
of books and documents or by his own investigation. Konczakowski v Paramount Pictures, Inc. (1957, DC NY) 20
FRD 588.
Request to describe in detail and give contents of documents and statements is equivalent to request for documents
themselves and such request must be made under Rule 34 and not under Rule 33 providing for interrogatories. Stovall
v Gulf & South American S.S. Co. (1961, SD Tex) 30 FRD 152, 6 FR Serv 2d 638.
In action to recover income taxes erroneously collected, interrogatory calling for description of all documents relied
on to support certain allegations contained in complaint was not improper even though it should have been by motion
under Rule 34 rather than 33, and court, in order to save time and effort, would treat motion as if made under proper
rule. Dubois Brewing Co. v United States (1963, WD Pa) 34 FRD 126, affd (CA4 Md) 334 F2d 464, cert den 379 US
869, 13 L Ed 2d 71, 85 S Ct 141. 8 FR Serv 2d 33.353, Case 2, affd (CA4 Md) 334 F2d 464, 8 FR Serv 2d 60b.27, Case
2, cert den 379 US 869, 13 L Ed 2d 71, 85 S Ct 141.
To obtain copies of documents it is necessary that party seeking documents proceed under Rule 34, and not Rule 33
of these rules. Wedding v Tallant Transfer Co. (1963, ND Ohio) 37 FRD 8, 9 FR Serv 2d 36a.13, Case 2, 9 FR Serv 2d
36a.21, Case 5.
There is no need for production of documents where answers to interrogatories propounded should provide
information sought. Rockaway Pix Theatre, Inc. v Metro-Goldwyn-Mayer, Inc. (1964, ED NY) 36 FRD 15. 8 FR Serv
2d 34.13, Case 10.
Rule 33 does not provide for securing of contents of documents or of copies of documents, which must be obtained
under Rule 34. Butler v United States (1964, WD Mo) 226 F Supp 341. 8 FR Serv 2d 34.411, Case 1.
To save time and paper, interrogatory under Rule 33 may be treated as motion under Rule 34 and production of
documents ordered. Butler v United States (1964, WD Mo) 226 F Supp 341. 8 FR Serv 2d 34.411, Case 1.
Plaintiff's objections to those parts of defendant's interrogatories which required documents to be attached to
plaintiff's answers would be sustained since, strictly speaking, plaintiff was not required so to do under Rule 33;
however, motion under Rule 34 would promptly be sustained should it become necessary for either party to file such
motion to get statements of witnesses in case. Vaccaro v Maroon (1967, WD Mo) 42 FRD 40, FR Serv 2d 926.
Discovery of documents is covered by Rule 34, and party may not require production of copies of documents by
means of interrogatories. Kirkland v Morton Salt Co. (1968, ND Ga) 46 FRD 28, 13 FR Serv 2d 895.
Association cannot sidestep its duty to answer under FRCP 33(a) by invoking FRCP 33(d), which provides option to
produce business records, and then asserting that FRCP 34 excuses it from any discovery obligation whatsoever. Law v
NCAA (1996, DC Kan) 167 FRD 464, 1996-2 CCH Trade Cases P 71518, vacated, writ granted, stay dissolved (1996,
CA10) 1996-2 CCH Trade Cases P 71573.
Although FRCP 34, which governs production of documents and things, does not provide any language with respect
to specificity and waiver of objections, which FRCP 33, which governs interrogatories, does, no reason exists to
distinguish between interrogatories and requests for production as to these matters. Pulsecard, Inc. v Discover Card
Servs. (1996, DC Kan) 168 FRD 295.
7. --Rule 45 (subpoenas)
Denial of motions to require production of various documents would not be disturbed on appeal where, since
motions were made prior to trial, plaintiff had available right of subpena upon trial to prevent failure of proof, and in
fact he did so proceed. Carter v Baltimore & O. R. Co. (1945) 80 App DC 257, 152 F2d 129.
In respect of character of documents, production of which may be required, this rule and Rule 45(b) must be
interpreted as in pari materia. United States v Aluminum Co. of America (1939, DC NY) 26 F Supp 711.
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USCS Fed Rules Civ Proc R 34
Rules 26 and 45(b) and Rule 34 should be construed in pari materia. Connecticut Importing Co. v Continental
Distilling Corp. (1940, DC Conn) 1 FRD 190.
Although party may not have sufficient justification for motion for discovery, production of documents may be
required through subpena duces tecum and recourse may be had to depositions. United States v Schine Chain Theatres,
Inc. (1942, DC NY) 2 FRD 425.
Express provision of Rule 45(b) for motion to quash subpena was intended as substitute, rather than auxiliary,
safeguard for advance notice required under Rule 34. United States use of Tilo Roofing Co. v J. Slotnik Co. (1944, DC
Conn) 3 FRD 408.
In action to enjoin violations of the Fair Labor Standards Act, subpena duces tecum, insofar as it was addressed to
inspector of wage and hour division, would be quashed; only papers to which defendants were entitled were books and
records of another company which were in custody of plaintiff, and to see these books and records defendant should
move under Rule 34 for discovery and inspection with sufficient particularity to satisfy requirements of rule. Walling v
J. Friedman & Co. (1944, DC NY) 4 FRD 384.
Rule 34 must be construed in pari materia with Rule 45 relating to subpoenas and Rule 26 relating to depositions.
Rosseau v Langley (1945, DC NY) 7 FRD 170; Hawaiian Airlines, Ltd. v Trans-Pacific Airlines, Ltd. (1948, DC
Hawaii) 8 FRD 449.
Production of documents upon deposition may be compelled only by subpena duces tecum or motion under Rule 34.
Bank of America Nat. Trust & Sav. Asso. v Loew's International Corp. (1956, DC NY) 18 FRD 489.
In absence of subpena duces tecum or motion under Rule 34, plaintiffs could ignore that part of notice to take
depositions which required production of designated documents. Bank of America Nat. Trust & Sav. Asso. v Loew's
International Corp. (1956, DC NY) 18 FRD 489.
Rule 34 and Rule 45(b) should be considered in pari materia as far as scope of examination is concerned if subpena
duces tecum is directed to party, particularly at deposition hearing, but there is no language in this rule that demands
any such materia consideration where subpena duces tecum is directed to witness not party to action. Shepherd v
Castle (1957, DC Mo) 20 FRD 184.
This rule should be considered in pari materia with Rule 45(b) as far as scope of examination of party in response to
subpena duces tecum is concerned, particularly at deposition hearing. Fusco on behalf of NLRB v Richard W. Kaase
Baking Co. (1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
Plaintiff could not by subpena duces tecum under Rule 45(b) obtain from witnesses production of certain
documentary material for inspection and copying where such material could be obtained directly from defendant under
Rule 34. Bada Co. v Montgomery Ward & Co. (1963, ED Tenn) 32 FRD 208, 7 FR Serv 2d 902.
Fact that one upon whom subpena duces tecum is served in connection with taking of deposition does not attack it
for unreasonableness or oppressiveness but complies and produces identified document at deposition does not give
examiner right to inspect or copy it without independent order under Rule 34. La Chance v Service Trucking Co.
(1963, DC Md) 215 F Supp 159, 6 FR Serv 2d 894.
Rule 34 applies only to parties to lawsuit, while subpoena under Rule 45 may be served upon both party and
non-party witnesses. Continental Coatings Corp. v Metco, Inc. (1970, ND Ill) 50 FRD 382, 164 USPQ 499, 13 FR
Serv 2d 1125.
Rule 34 expressly applies only to discovery among parties and although Rule 45 provides for limited forms of
discovery from nonparties, it does not extend to entry on land of nonparty. Huynh v Werke (1981, SD Ohio) 90 FRD
447.
Inclusion of references to FRCP 45 within FRCP 26 and 34 is clear indication that procuring documents from
nonparties can constitute discovery. Rice v United States (1995, ND Okla) 164 FRD 556.
Discovery of documents from party, as distinct from non-party, is not accomplished pursuant to FRCP 45; FRCP 45,
to extent it concerns discovery, is directed at non-parties, and FRCP 34 governs discovery of documents in possession
or control of parties themselves. Hasbro, Inc. v Serafino (1996, DC Mass) 168 FRD 99.
Reading FRCP 34 and 45 in tandem, nonparty can be compelled to produce documents within certain geographic
limitations, usually no more than 100 miles from nonparty's location. Anderson v Government of the Virgin Islands
(1998, DC VI) 180 FRD 284.
Inclusion of references to FRCP 45 within FRCP 26(a)(5) and FRCP 34(c) is clear indication that procuring
documents from nonparties can constitute discovery, and although neither FRCP 45 nor FRCP 34 contains any time
limit within which to procure documents from third parties, this does not mean that party should be allowed to employ
subpoena after discovery deadline to obtain materials from third parties that could have been produced during
discovery. Alper v United States (2000, DC Mass) 190 FRD 281.
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USCS Fed Rules Civ Proc R 34
Pursuant to FRCP 34(c), district court has power to compel nonparty to submit to inspection upon service of proper
subpoena. Fitzpatrick v Arco Marine, Inc. (2001, CD Cal) 199 FRD 663, 2001 AMC 1390.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
Where court determined that Fed. R. Civ. P. 45 subpoena duces tecum could be issued to party and that such
subpoena was discovery device that was subject to court's discovery scheduling order and had to comply with
requirements of Fed. R. Civ. P. 34, defendants' motion to quash subpoena and for protective order was granted since
subpoena was issued after close of discovery. Mortg. Info. Servs. v Kitchens (2002, WD NC) 210 FRD 562, 52 FR Serv
3d 1359.
Aerospace companies' motion to compel Government to produce certain documents in False Claims Act action was
granted because Government conceded documents sought were relevant to relator's claims, but Government was given
60 days to formally claim state secrets privilege. United States ex rel. Schwartz v TRW, Inc. (2002, CD Cal) 211 FRD
388.
Applying relevancy standards of FRCP 26(b) and 34, subpoena under FRCP 45 for records of operational checking
account of defendant in dispute over non-competition agreement was relevant to financial issues in case, including
relationship between defendant and entity that allegedly competed with plaintiff; however, defendant's payroll account
records were not relevant, and protective order was granted to prevent disclosure to non-parties or use outside litigation.
Transcor, Inc. v Furney Charters, Inc. (2003, DC Kan) 212 FRD 588.
8. --Rules of Criminal Procedure
Rule 6 of the Federal Rules of Criminal Procedure, which requires that grand jury proceedings and matters be
disclosed to third parties only when directed to do so by court or in connection with judicial proceeding, did not prohibit
plaintiff, in suit against union for breach of fiduciary obligations, from discovery of material provided by union local,
since such material was limited to material contained in production request and was not attempt to invade secrecy of
grand jury. Brink v Da Lesio (1979, DC Md) 82 FRD 664, 88 CCH LC P 11928, 28 FR Serv 2d 769, later proceeding
(DC Md) 496 F Supp 1350, 2 EBC 1585, 105 BNA LRRM 2233, 91 CCH LC P 12744, reserved, in part, motion den
(DC Md) 88 FRD 610, 108 BNA LRRM 2973, affd in part and revd in part on other grounds (CA4 Md) 667 F2d 420, 2
EBC 2057, 108 BNA LRRM 2975, 109 BNA LRRM 3310, 92 CCH LC P 13096, 32 FR Serv 2d 1267.
FRCrP 6(e), which imposes general rule of secrecy on grand jury materials, did not prohibit defendants in civil
action, who, as defendants in separate criminal action, had obtained grand jury materials legitimately, from producing
such materials in civil action pursuant to plaintiff's request for production of documents. Liberty Mut. Ins. Co. v
Diamante (2000, DC Mass) 193 FRD 15.
9. --Foreign law
Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters does not provide exclusive
discovery procedures which Federal District Court must use when civil litigants seek evidence abroad, inasmuch as both
discovery rules in Federal Rules of Civil Procedure and Hague Convention are laws of United States whose interaction
must be analyzed; Hague Convention applies in District Court as one optional procedure when discovery is sought from
litigant who is subject to jurisdiction of District Court, since Convention procedures are available whenever they will
facilitate gathering of evidence by means authorized in Convention; District Court should resort to Convention when it
deems that course of action appropriate, after considering situations of parties before it as well as interests of concerned
foreign state; relevant considerations include: (1) importance to litigation of requested information; (2) specificity of
request; (3) whether information originated in United States; (4) availability of alternative means of obtaining
information; and (5) extent to which noncompliance with request would undermine important interests of United States,
or compliance would undermine important interests of foreign nation where information is located. Societe Nationale
Industrielle Aerospatiale v United States District Court (1987) 482 US 522, 96 L Ed 2d 461, 107 S Ct 2542, 7 FR Serv
3d 1105.
American court has power to order person subject to its jurisdiction to disclose documents over which he has control
and existence of foreign law prohibiting disclosure of requested documents does not prevent exercise of power, but such
conflicting law cannot be ignored and bears on discretion of court. Re Uranium Antitrust Litigation (1979, ND Ill) 480
F Supp 1138, 1980-1 CCH Trade Cases P 63124, 29 FR Serv 2d 414.
French Blocking Statute is not absolute bar to ordering discovery of French body corporate; rather, court must weigh
and balance various factors in determining whether to order discovery and whether, should French entity fail to comply
with court's order, to impose sanctions; among factors to be weighed are (1) importance of policies underlying United
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USCS Fed Rules Civ Proc R 34
States statute which forms basis for plaintiff's claims, and (2) importance of requested documents in illuminating key
elements of claims. Graco, Inc. v Kremlin, Inc. (1984, ND Ill) 101 FRD 503, 222 USPQ 986, 39 FR Serv 2d 78.
It is not ipso facto defense to discovery request that law of foreign country may prohibit production or disclosure.
Laker Airways, Ltd. v Pan American World Airways (1984, DC Dist Col) 103 FRD 42, 39 FR Serv 2d 1043, later
proceeding (DC Dist Col) 596 F Supp 202, 1985-1 CCH Trade Cases P 66390, later proceeding (DC Dist Col) 604 F
Supp 280, 1985-2 CCH Trade Cases P 66731, later proceeding (DC Dist Col) 109 FRD 541, 2 FR Serv 3d 1310.
Foreign law prohibitions on disclosure do not act as absolute bar to ordering production of documents; more flexible
approach involving balancing of interests should be used in court's exercise of discretion. Minpeco, S.A. v
ContiCommodity Services, Inc. (1987, SD NY) 116 FRD 517, 8 FR Serv 2d 1121.
In case alleging civil conspiracy to manipulate price of silver plaintiff could not compel discovery of certain
documents in control of nonparty witness since their disclosure would violate Swiss bank secrecy laws and subject
witness' employees to criminal prosecution, and there were only limited number of documents apparently relevant to
case. Minpeco, S.A. v Conticommodity Services, Inc. (1988, SD NY) 118 FRD 331, 1988-1 CCH Trade Cases P 67885,
motion den (SD NY) 686 F Supp 420, later proceeding (SD NY) 686 F Supp 427, later proceeding (SD NY) 693 F Supp
58, later proceeding (SD NY) 718 F Supp 168, 1989-2 CCH Trade Cases P 68674, later proceeding (SD NY) 127 FRD
460, 1989-2 CCH Trade Cases P 68811 and reconsideration den (SD NY) 724 F Supp 259.
Canadian defendant manufacturer of asbestos-containing products sued by workers alleging injury from such
products in course of their employment was not excused from complying with discovery requests and orders because of
law of its domicile allegedly forbidding production of business records, where defendant had been found subject to
personal jurisdiction in South Carolina, interrogatories could be answered without removal of documents, and even
assuming that documents fell within Quebec law, that law required petition by attorney general for order preventing
removal of documents, which did not exist, and, finally, a provincial government's legislative enactments are not
entitled to comity under principles of international law. Lyons v Bell Asbestos Mines, Ltd. (1988, DC SC) 119 FRD
384.
II. SCOPE (subd (a))
A. In General
10. Generally
Deposition-discovery rules are to be accorded broad and liberal treatment, and no longer can time-honored cry of
"fishing expedition" serve to preclude party from inquiring into facts underlying his opponent's case. Hickman v
Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385,.
Rule 34 may not be used for mere fishing excursions into affairs of adversary. Ft. Wayne Corrugated Paper Co. v
Anchor Hocking Glass Corp. (1940, DC Pa) 4 FRD 328; Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD 333, 64
USPQ 387.
Rule 34 was not intended to permit party to engage in "fishing expedition" among books and papers of adverse party.
Archer v Cornillaud (1941, DC Ky) 41 F Supp 435. 4 CCH LC P 60733.
These rules permit "fishing" for evidence. Golden v Arcadia Mut. Casualty Co. (1942, DC Ill) 3 FRD 26.
Rule 34 does not permit search of adversary's prospective documentary evidence and does not contemplate that party
may obtain permit to explore documents in possession of his adversary in hope that he may find something which may
adversely affect adversary's case or that may prove helpful to case of movant. United States v Becton, Dickinson & Co.
(1962, DC NJ) 30 FRD 132, 5 FR Serv 2d 581.
Although "fishing expeditions" may be conducted under certain of discovery rules, Rule 34 was not intended for
such purpose. Flickinger v Aetna Casualty & Surety Co. (1965, DC Pa) 37 FRD 533; 9 FR Serv 2d 34.13, Case 9;
Tinder v McGowen (1970, WD Pa) 15 FR Serv 2d 1608.
Where plaintiffs filed requests for production of documents and things for inspection, copying, and duplicating
pursuant to Rule 34, and defendants filed exceptions to all requests and asked court for protective order, documents
were discoverable if there was reasonable possibility that they might be relevant or would lead to relevant material, and
under this broad definition of relevance, objection to production on grounds that request was fishing expedition would
be afforded little if any consideration. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
Rule 34 was designed to cover situation in which one party desires to enter on land that is not in possession or
control of either party or to inspect things that it is physically impossible to produce at taking of deposition. Home Ins.
Co. v First Nat. Bank (1980, ND Ga) 89 FRD 485, 32 FR Serv 2d 315, 62 ALR Fed 928.
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USCS Fed Rules Civ Proc R 34
Rule 34(a) cannot be used to compel party to create, upon request of opposing party, documentary evidence which is
not already in existence in some form. Rockwell International Corp. v H. Wolfe Iron & Metal Co. (1983, WD Pa) 576
F Supp 511, 1984-1 CCH Trade Cases P 65836.
Television network which brought copyright infringement action against shirt manufacturer to protect its copyright
in characters of television show is granted motion for expedited production of documents under Rule 34 and expedited
depositions under Rule 30 where (1) network may suffer irreparable harm, (2) there is probability of network's success
on merits, (3) expedited discovery may have some connection with avoidance of irreparable harm, and (4) expedited
discovery would not pose substantial hardship to manufacturer. Twentieth Century Fox Film Corp. v Mow Trading
Corp. (1990, SD NY) 749 F Supp 473.
Reading FRCP 34 and 45 in tandem, nonparty can be compelled to produce documents within certain geographic
limitations, usually no more than 100 miles from nonparty's location. Anderson v Government of the Virgin Islands
(1998, DC VI) 180 FRD 284.
Pursuant to FRCP 34(c), district court has power to compel nonparty to submit to inspection upon service of proper
subpoena. Fitzpatrick v Arco Marine, Inc. (2001, CD Cal) 199 FRD 663, 2001 AMC 1390.
Requests for production of documents served on nonparties are nullity; discovery of nonparties must be conducted
by subpoena pursuant to FRCP 45. Lehman v Kornblau (2001, ED NY) 206 FRD 345.
11. Elimination of good cause requirement
Test for determining whether material is discoverable is relevancy and Rule 34 no longer requires that party seeking
discovery show good cause for request. Weahkee v Norton (1980, CA10 NM) 621 F2d 1080, 22 BNA FEP Cas 1497,
23 CCH EPD P 30940, 29 FR Serv 2d 847.
Under Rule 34 as amended in 1970, there is no requirement that moving party demonstrate good cause for
production of documents. Smith v Schlesinger (1975) 168 App DC 204, 513 F2d 462, 20 FR Serv 2d 473.
Rule 34 no longer requires showing of good cause for production of documents. Dingler v Halcyon Lijn N. V.
(1970, DC Pa) 50 FRD 211, 14 FR Serv 2d 594; Tinder v McGowan (1970, WD Pa) 15 FR Serv 2d 1608.
One of basic changes made by 1970 amendments in respect to production of documents is elimination of requirement
of "good cause"; documents and tangible things which are not trial preparation material are therefore routinely
discovered if they are relevant. Peterson v United States (1971, DC Ill) 52 FRD 317, 15 FR Serv 2d 417.
If documents are relevant and not prepared in anticipation of litigation, they are discoverable without showing of
undue hardship or of good cause. Thomas Organ Co. v Jadranska Slobodna Plovidba (1972, ND Ill) 54 FRD 367, 15
FR Serv 2d 1343.
There is no longer any requirement in Rule 34 that party requesting another party to produce documents for
inspection and copying show good cause for such request; it is only necessary that party requesting such production
show that documents are relevant to subject matter involved in pending action. Herbst v Able (1972, SD NY) 63 FRD
135, CCH Fed Secur L Rep P 93923.
"Good cause" requirement of former Rule 34 was subject to much confusion and sharp disagreement among both
courts and commentators, and drafters of 1970 amendments specifically revised Rule 34 to eliminate "good cause"
language. Mallinckrodt Chemical Works v Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348, CCH Fed Secur L Rep
P 93793, 16 FR Serv 2d 1517.
12. Parties to action
Rule 34 may not be used to discover matters from nonparty. Hatch v Reliance Ins. Co. (1985, CA9 Ariz) 758 F2d
409, cert den 474 US 1021, 88 L Ed 2d 555, 106 S Ct 571, motion gr 474 US 1048, 88 L Ed 2d 761, 106 S Ct 782.
Permission to enter land or other property of another for purpose of inspecting, surveying, and photographing under
Rule 34 should be limited in its application to parties to pending actions. Egan v Moran Towing & Transp. Co. (1939,
DC NY) 26 F Supp 621.
This rule applies only to parties to actions. Okun v Kastner (1941, DC RI) 1 FRD 599; Beegle v Thomson (1941,
DC Ill) 2 FRD 82; Isrel v Shapiro (1942, DC NY) 3 FRD 175; Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD
333, 64 USPQ 387.
In action by employees against their employer for unpaid wages and unpaid overtime compensation under Fair Labor
Standards Act, defendant should not be ordered to produce employment records of all of its employees but only as to
those who are parties to action. Saxton v W. S. Askew Co. (1941, DC Ga) 38 F Supp 323, 4 CCH LC P 60535.
Plaintiff was not entitled to production of books and records of customers of defendants. Newmark v Abeel (1952,
DC NY) 106 F Supp 758.
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USCS Fed Rules Civ Proc R 34
Rule 34 does not authorize order for entry onto land not owned or controlled by party. Humphries v Pennsylvania
R. Co. (1953, DC Ohio) 14 FRD 177.
Motion under Rule 34 applies only to obtain discovery and production of documents from parties to action, and
cannot be used against witness. Gulf Constr. Co. v St. Joe Paper Co. (1959, SD Tex) 24 FRD 411, 2 FR Serv 2d 589.
Rule 34 gives disclosure rights only to parties to litigation which is pending in federal court. Williams v IRS (1972,
DC Del) 345 F Supp 591, 72-1 USTC P 9406, 29 AFTR 2d 72-1229, affd (CA3 Del) 479 F2d 317, 73-1 USTC P 9476,
32 AFTR 2d 73-5041, cert den 414 US 1024, 38 L Ed 2d 315, 94 S Ct 448.
Motion to compel non-parties to suit to engage in any production of evidence for benefit of party is not contemplated
by rules, and Rule 26 on general aspects of discovery and Rule 34 regarding production of documents speak only to
situations involving parties and to tangible evidence. Haaf v Grams (1973, DC Minn) 355 F Supp 542, 17 FR Serv 2d
716.
Nonparties to civil rights action are not required to furnish verified copies of statements given to nonparty police
officer by defendant; appropriate device for obtaining desired statements is subpoena. Smith v Parmley (1982, ED
Tenn) 558 F Supp 161.
Defendant Swiss bank would not be compelled to produce documents and answer interrogatories in consolidated
actions alleging violations of federal and state antitrust laws, federal commodities fraud, and violation of federal
racketeering statutes where, inter alia, importance of discovery sought was reduced in light of waiver of bank secrecy
laws already executed by key players in case and discovery that already occurred under those waivers, and bank was no
longer primary defendant because it had settled with plaintiffs. Minpeco, S.A. v ContiCommodity Services, Inc. (1987,
SD NY) 116 FRD 517, 8 FR Serv 3d 1121.
Since purpose of FRCP 34 is to make relevant and nonprivileged documents and objects in possession of one party
available to other party, party may inspect any document that is relevant to pending subject matter; however, court may
not compel one party to sign release form so that other party may obtain documents such as medical records. Clark v
Vega Wholesale (1998, DC Nev) 181 FRD 470.
FRCrP 6(e), which imposes general rule of secrecy on grand jury materials, did not prohibit defendants in civil
action, who, as defendants in separate criminal action, had obtained grand jury materials legitimately, from producing
such materials in civil action pursuant to plaintiff's request for production of documents. Liberty Mut. Ins. Co. v
Diamante (2000, DC Mass) 193 FRD 15.
Regardless of whether request is made pursuant to FRCP 34 or FRCP 35, party may obtain fingerprints of another
party or person under such other party's control upon establishing that such evidence is relevant and that there is good
cause for obtaining fingerprints of such other party or person. Harris v Athol-Royalston Reg'l Sch. Dist. Comm. (2002,
DC Mass) 206 FRD 30.
In patent infringement action, scope of company's waiver of attorney-client privilege did not extend to privileged
information regarding foreign counterpart patents; therefore, because individual and corporation had already received
attorney-client communications associated with patent in suit, it was not entitled to receive privileged materials
regarding foreign counterparts. Rhodia Chimie v PPG Indus. (2003, DC Del) 218 FRD 416, patent interpreted (2003,
DC Del) 2003 US Dist LEXIS 18695.
13. --Assignee of party
In contested interference proceeding in Patent Office, assignee was real party in interest and might not hide behind
its assignors; discovery procedures may not be frustrated by submission of patent applications in names of nominal
parties, and assignee comes within purview of phrase "any party." Natta v Hogan (1968, CA10 Okla) 392 F2d 686, 157
USPQ 183, 11 FR Serv 2d 905 (disagreed with by Shattuck v Hoegl (CA2 NY) 523 F2d 509, 187 USPQ 1, 20 FR Serv
2d 714 (disagreed with by Brown v Braddick (CA5 Tex) 595 F2d 961, 203 USPQ 95)).
14. --Brokerage houses
Brokerage houses, as street name record owners who were theoretically members of plaintiffs in class action, should
not bear financial burden of retrieving from its computerized records names and addresses of its shareholders because to
construe brokerage houses as parties within the meaning of Rule 34 would be strained. Re Penn Cent. Secur. Litigation
(1977, CA3 Pa) 560 F2d 1138, 23 FR Serv 2d 1242.
15. --Class members
In class action by shareholders against corporation pursuant to Rule 23(b) where absent members of class of
shareholders had been duly notified of nature of allegations and had been given opportunity to exclude themselves from
class action, and where, furthermore, they were at all times notified of orders issued by court and informed as to course
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USCS Fed Rules Civ Proc R 34
of proceedings, absent class members were subject to discovery under Rules 33 and 34 despite fact that they were not
formally parties to litigation; therefore, when certain absent class members failed to produce documents and answer
interrogatories in accordance with orders of court, court acted within its discretion under Rule 37 in dismissing action
with prejudice as to those members. Brennan v Midwestern United Life Ins. Co. (1971, CA7 Ind) 450 F2d 999, 15 FR
Serv 2d 351, 13 ALR Fed 243, cert den 405 US 921, 30 L Ed 2d 792, 92 S Ct 957 and (disagreed with by Cox v
American Cast Iron Pipe Co. (CA11 Ala) 784 F2d 1546, 40 BNA FEP Cas 678, 40 CCH EPD P 36132, 4 FR Serv 3d
521, cert den 479 US 883, 93 L Ed 2d 250, 107 S Ct 274, 41 BNA FEP Cas 1712, 41 CCH EPD P 36474, later
proceeding (CA11 Ala) 847 F2d 725, 47 BNA FEP Cas 141).
Although action has been authorized as class action, members of class who have not opted out are not parties for
purposes of requiring them to answer interrogatories or to produce documents. Wainwright v Kraftco Corp. (1972, ND
Ga) 54 FRD 532, 1972 CCH Trade Cases P 73946, 15 FR Serv 2d 1333.
Absent class members in class action under Rule 23 of Federal Rules of Civil Procedure as subject to discovery. 13
ALR Fed 255.
16. --Counsel
Discovery procedures under Rule 34 and Rule 33 may be employed only as to parties to action, and these rules may
not be used to obtain information directly from party's counsel. Seven-Up Co. v Get Up Corp. (1962, ND Ohio) 30
FRD 550, 133 USPQ 258, 5 FR Serv 2d 554.
To conform to liberal spirit of these rules, documents in possession or custody of attorney must be treated as under
control of client so that discovery may be had under Rule 34, as it applies only to parties, not attorneys or others.
Hanson v Gartland S.S. Co. (1964, ND Ohio) 34 FRD 493, 8 FR Serv 2d 34.411, Case 3.
17. --Executors and administrators
Fact that executor of decedent's estate was sued as individual and not in representative capacity did not permit him to
refuse production of reports of accountants with regard to property in which estate had interest. Goldlawr, Inc. v
Shubert (1960, DC NY) 25 FRD 276, 3 FR SERv 2d 615.
18. --Garnishee
Garnishee within jurisdiction of court was "party" subject to order requiring it to produce documents at prejudgment
stage of garnishment proceedings. Conversion Chemical Corp. v Dr.-Ing. Max Schloetter Fabrik Fur Galvanotechnik
(1969, DC Conn) 49 FRD 126, 14 FR Serv 2d 246.
19. --Government; officers and employees
Party who obtained default judgment against insurer which was liquidated and whose assets were therefore by
operation of law vested in state superintendent of insurance was not entitled to production of records in insurance
superintendent's possession, allegedly necessary for enforcement of judgment, since superintendent was not party to
suit. Miner v Punch (1988, CA5 La) 838 F2d 1407, 1989 AMC 2399.
Where neither United States nor any of its departments were parties to action, plaintiff's motion for order requiring
Secretary of War or War Department to furnish copies of draft records relating to defendant would be denied. Federal
Life Ins. Co. v Holod (1939, DC Pa) 29 F Supp 852.
When government brings action in exercise of its regulatory powers it is subject to discovery as would be private
litigant, but this general rule is subject to many qualifications. Fusco on behalf of NLRB v Richard W. Kaase Baking
Co. (1962, ND Ohio) 205 F Supp 459, 50 BNA LRRM 2307, 6 FR Serv 2d 13.
20. --Insurer
Where action was between parties to automobile collision and production of photographs taken by insurance carrier
was sought under Rule 34, insurer's objection that it was not party to action would be rejected and photograph ordered
produced; insurance carriers writing automobile liability insurance are nearly always required by terms of their policies
to take over defense of suits against insured, and hence for all practical purposes they are in same role as actual party
litigant, and should be subject to same usual and reasonable procedural rules as actual party litigant. Simper v Trimble
(1949, DC Mo) 9 FRD 598.
As practical matter insurer is real litigant, and one whose interests are closely connected with those of defendant of
record, in fact defending case on behalf of defendant; to hold that statements obtained by it for purpose of this litigation
are immune from discovery would make possible evasion of Rule 34 on many occasions on which defendant's case is
actually prepared and controlled by liability insurer. Bingle v Liggett Drug Co. (1951, DC Mass) 11 FRD 593.
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USCS Fed Rules Civ Proc R 34
Insurance carrier under contract to defend is for all practical purposes party to litigation and subject to production
order. Wilson v David (1957, DC Mich) 21 FRD 217.
21. --Subsidiaries
Language of Labor Management Reporting and Disclosure Act of 1959 authorizes District Court to compel
production of information in hands of nonparty subsidiaries of labor union which is party to suit in aid of which
disclosure is sought, especially where subsidiary is wholly owned. ILA, General Longshore Workers Union v Smith
(1962, CA5 La) 301 F2d 791, 49 BNA LRRM 3108, 44 CCH LC P 17564.
Where corporate defendant owned all of stock of subsidiary corporation and both corporations occupied same
premises and office manager of defendant was in charge of books and records of subsidiary, for purpose of applying this
rule both companies were "substantially one" so that plaintiff insurance company suing to recover proceeds paid
defendant under fire insurance policy on ground that such property was owned by subsidiary and not by defendant was
entitled to production of records of subsidiary corporation for inspection and copying notwithstanding that subsidiary
was not party to action. Standard Ins. Co. v Pittsburgh Electrical Insulation, Inc. (1961, WD Pa) 29 FRD 185, 5 FR
Serv 2d 173.
22. Relevancy
This rule is not available for discovery purposes but is only proceeding for production of designated documents
which contain material evidence. Condry v Buckeye S.S. Co. (1945, DC Pa) 4 FRD 310.
Request for all written materials including correspondence filed with or sent to plaintiff during stated period which
concerned defendant as landlord and also stenographic notes made in conversations relating to defendant was
insufficient where court could not determine relevancy. Woods v Kornfeld (1950, DC Pa) 9 FRD 678.
This rule precluded defendant in civil antitrust action from requiring government, over objection, to permit defendant
to search through mass or masses of documents in government's possession of different categories, for obvious purpose
of ascertaining what those documents are and what they contain. United States v Becton, Dickinson & Co. (1962, DC
NJ) 30 FRD 132, 5 FR Serv 2d 581.
In shareholders derivative action alleging violations of securities laws, plaintiff is entitled to discover documents,
writings and clippings because such documents are relevant and may help to establish motivation and intent of alleged
fraudulent scheme and because test of relevancy is very broad and liberal. Weber v Bartle (1968, DC NY) 11 Fed Rules
Serv 2d 921.
While discovery rule is not to be read narrowly, it precludes discovery where no evidence could be admitted in any
event. Interstate Investors, Inc. v United States (1968, SD NY) 287 F Supp 374, 1968 CCH Trade Cases P 72525, affd
393 US 479, 21 L Ed 2d 687, 89 S Ct 707, 1969 CCH Trade Cases P 72685.
Test of scope of discovery under Rule 34 is whether information sought is relevant to subject matter of suit, not
whether it is admissible at trial. Bass v Gulf Oil Corp. (1969, SD Miss) 304 F Supp 1041, 1970 CCH Trade Cases P
73039, 13 FR Serv 2d 764.
As Rule 34(a) indicates by its express terms, scope of discovery thereunder is defined in Rule 26(b); thus, discovery
under Rule 34(a) is not limited to matters admissible at trial, and, generally, matters are discoverable if relevant to
subject matter involved unless privileged or prepared in anticipation of litigation, or unless they reveal acts known and
opinions held by experts, or unless such discovery would cause undue annoyance, embarrassment, oppression, or
expense. Morales v Turman (1972, ED Tex) 59 FRD 157, 17 FR Serv 2d 1039.
Where court found that all documents requested by plaintiffs were material to subject matter of lawsuits and their
production by defendants would not be overly burdensome, defendants' objection would be overruled. Hoffman v
Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
In order to obtain order to compel production of documents, party must specify documents sought and their
relevance to action. Potts v Allis-Chalmers Corp. (1987, ND Ind) 118 FRD 597, 44 BNA FEP Cas 1484, 10 FR Serv
3d 44.
In products liability action brought against manufacturer of oral polio vaccine by parents of child who was allegedly
infected with AIDS from viral contaminant present in vaccine, parents' request to conduct polymerase chain reaction
tests for HIV-1 on monopools of defendant's vaccine was relevant; however, request to conduct tests for HIV-2 and SIV
(simian immunodeficiency virus) was not relevant, since defendant submitted substantial evidence that HIV-2 and SIV
are not causes of AIDS in persons not infected with those viruses, and that SIV cannot mutate into HIV-1 within person.
Williams v American Cyanamid (1995, DC NJ) 164 FRD 608, affd, stay den (1996, DC NJ) 164 FRD 615.
Regardless of whether request is made pursuant to FRCP 34 or FRCP 35, party may obtain fingerprints of another
party or person under such other party's control upon establishing that such evidence is relevant and that there is good
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USCS Fed Rules Civ Proc R 34
cause for obtaining fingerprints of such other party or person. Harris v Athol-Royalston Reg'l Sch. Dist. Comm. (2002,
DC Mass) 206 FRD 30.
23. Description of items; reasonable particularity
There is no reason why all such books, papers, and correspondence which related to subject of inquiry and were
described with reasonable detail should not be called for any company directed to produce them; otherwise, state would
be compelled to designate each particular paper which it desired, which presupposes accurate knowledge of such
papers, which tribunal desiring papers would probably rarely, if ever, have. Consolidated Rendering Co. v Vermont
(1908) 207 US 541, 52 L Ed 327, 28 S Ct 178.
Designation of documents demanded for inspection is sufficiently definite if it informs adverse party what it is
required to produce. RCA Mfg. Co. v Decca Records, Inc. (1940, DC NY) 1 FRD 433, 47 USPQ 99.
Documents should be designated with sufficient particularity to enable other party to pick them out from
promiscuous mass of documents in his possession but it need not name them with minute accuracy, since moving party
may not know which particular book or record contains desired information. United Mercantile Agencies v Silver Fleet
Motor Express, Inc. (1941, DC Ky) 1 FRD 709.
Party must designate specifically particular books and records that contain information desired. Archer v Cornillaud
(1941, DC Ky) 41 F Supp 435, 4 CCH LC P 60733.
It is not permissible in granting motion for production of documents to order general search and inspection of all
records so that moving party may find what he may want. United States v American Optical Co. (1942, DC NY) 2 FRD
534.
Motions for production of documents, even though supported by affidavits, did not meet requirements of this rule,
where there was no designation of precise documents to be produced, and there was no showing that any of documents
sought were in plaintiff's possession, custody, or control. Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD 333,
64 USPQ 387.
Under Rule 34, request should be for designated items, papers, books, accounts, letters, photographs, objects, and
tangible things. Sheffield Corp. v George F. Alger Co. (1954, DC Ohio) 16 FRD 27.
Documents sought must be designated with particularity. Portsmouth Baseball Corp. v Frick (1956, DC NY) 19
FRD 195.
Motion made under this rule would be denied where designation of documents was not sufficiently specific for court
to rule with certainty either as to motion or objections thereto. United States v Dempster Bros., Inc. (1962, ED Tenn)
31 FRD 207, 6 FR Serv 2d 636.
Documents must be described with such degree of accuracy that person charged with production can reasonably be
expected to identify them. Wharton v Lybrand, Ross Bros. & Montgomery (1966, ED NY) 41 FRD 177, 10 FR Serv 2d
952.
Reasonable particularity requirement of Rule 34(b) is not susceptible to exact definition, and what is reasonably
particular is dependent upon facts and circumstances in each case. Mallinckrodt Chemical Works v Goldman, Sachs &
Co. (1973, SD NY) 58 FRD 348, CCH Fed Secur L Rep P 93793, 16 FR Serv 2d 1517.
All nonprivileged information is discoverable under Rule 34 if the items are specifically designated. Lincoln
American Corp. v Bryden (1973, DC Kan) 375 F Supp 109, 19 FR Serv 2d 150.
Motion made under Rule 34 was denied because of conclusory nature of moving party's allegations as to need for
information involved, motion did not meet requirement in Rule 34 that requests for production be described with
reasonable particularity, request was overbroad and violated prior agreement between parties. United States v
International Business Machines Corp. (1976, SD NY) 72 FRD 78, 1976-2 CCH Trade Cases P 61060, 24 FR Serv 2d
1156.
While requirement of Rule 34(b) in describing each item and category with reasonable particularity is not overly
strict, court must be given enough information to enable it to rule intelligently on objections. Re IBM Peripheral EDP
Devices Antitrust Litigation (1977, ND Cal) 77 FRD 39, 1978-2 CCH Trade Cases P 62175.
Requirement in Rule 34(b) that requests for production of documents be stated with reasonable particularlity
presupposes that requests for production be made in writing. Eglin Federal Credit Union v Cantor, Fitzgerald Secur.
Corp. (1981, ND Ga) 91 FRD 414, 7 Fed Rules Evid Serv 1604, 31 FR Serv 2d 709, 31 FR Serv 2d 713.
In order to obtain order to compel production of documents, party must specify documents sought and their
relevance to action. Potts v Allis-Chalmers Corp. (1987, ND Ind) 118 FRD 597, 44 BNA FEP Cas 1484, 10 FR Serv
3d 44.
In dispute over whether parties had entered into supply contract for laminated body cloth, corporation failed to
establish that discovery request that sought production of documents concerning corporation's solicitation and purchase
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USCS Fed Rules Civ Proc R 34
of laminates was overly broad; corporation did not argue that it could not readily identify documents requested or that it
would be unduly difficult to determine which documents fell within scope of request. Gen. Elec. Capital Corp. v Lear
Corp. (2003, DC Kan) 215 FRD 637.
Necessity and sufficiency, under statutes and rules governing modern pretrial discovery practice, of "designation" of
documents, etc., in application or motion. 8 ALR2d 1134.
24. --Blanket request
Motion for production of all statements furnished to any bank or credit agency over period of years would be denied
for failure properly to designate desired documents. Connecticut Importing Co. v Continental Distilling Corp. (1940,
DC Conn) 1 FRD 190.
Request for production of all "books, documents, papers and records which are relevant and relate to the subject
matter of the examination before trial" does not comply with requirement that demand designate documents. Vendola
Corp. v Hershey Chocolate Corp. (1940, DC NY) 1 FRD 359.
Requesting "all written reports, memoranda, or other records of conferences of officers or members of the technical
staff of the defendants" in which certain manufacturing processes were discussed, is too general and comprehensive.
Lever Bros. Co. v Proctor & Gamble Mfg. Co. (1941, DC Md) 38 F Supp 680, 49 USPQ 553.
Production of every writing in possession of defendant, relative to transactions between it and certain other persons
over period of years was not sufficient designation. United States v Schine Chain Theatres, Inc. (1942, DC NY) 2 FRD
425.
"Production of the books and papers of the defendants, namely the following," followed by list of names of
defendants, is insufficient designation of papers and books desired. United States ex rel. Bayarsky v Brooks (1943, DC
NJ) 51 F Supp 974.
Plaintiff under Rule 34 could not simply request inspection of "all reports, investigations, and statements" relative to
accident. Hare v Southern Pac. Co. (1949, DC NY) 9 FRD 307.
Blanket request for production of all books and records relating to subject matter is too general. Frank v Tinicum
Metal Co. (1950, DC Pa) 11 FRD 83.
Request for all documents "which may be material to the issues" is not sufficiently specific. Mercantile Metal &
Ore Corp. v American General Supply Corp. (1952, DC NY) 12 FRD 345.
Blanket request for production of all letters, correspondence, and the like written, prepared, or originated or received
by plaintiff or representative thereof concerning decision to commence instant action and filing thereof was too broad.
Portsmouth Baseball Corp. v Frick (1956, DC NY) 19 FRD 195.
Designation of documents was insufficient where defendant requested blanket production of all other
correspondence, memoranda, and documents in action by former employer against employee for violation of "no
competition" agreement. De Long Corp. v Lucas (1956, DC NY) 138 F Supp 805.
Documents described as all reports of investigators commissioned by defendant or by office of Alien Property or its
predecessor, as well as affidavits or transcripts of testimony upon which defendant relied in his claim, were
insufficiently specified. Public Admr. of County of New York v Rogers (1960, SD NY) 26 FRD 118, 3 FR Serv 2d 611.
In antitrust action, plaintiff's blanket demand for production of all papers belonging to corporate defendant and its
allied subsidiaries with no limitation on scope, time, or reasonable category would be denied. International
Commodities Corp. v International Ore & Fertilizer Corp. (1961, SD NY) 30 FRD 58, 5 FR Serv 2d 34, 5 FR Serv 2d
495, 5 FR Serv 2d 563.
Blanket requests for documents set forth in second and third requests for production encompassed fishing
expeditions of most blatant character, and were objectionable as being unnecessarily oppressive and burdensome.
Flickinger v Aetna Casualty & Surety Co. (1965, WD Pa) 37 FRD 533, 9 FR Serv 2d 34.13, Case 9.
Test whether documents have been prescribed with reasonable particularity is relative test depending on
circumstances of each case, and designation by category or subject matter is reasonable under most circumstances, but
designations that are chiefly "any and all documents" are generally wanting. Richland Wholesale Liquors, Inc. v
Joseph E. Seagram & Sons, Inc. (1966, DC SC) 40 FRD 480, 1966 CCH Trade Cases P 71923, 10 FR Serv 2d 958.
Catchall paragraph seeking any additional documents in custody or control of defendant company reflecting
information requested in other paragraphs of plaintiff-employee's demand in proceeding against company under Fair
Employment Practices provisions of Civil Rights Acts should not have been inserted in discovery demand. Georgia
Power Co. v EEOC (1968, ND Ga) 295 F Supp 950, 1 BNA FEP Cas 351, 69 BNA LRRM 2017, 1 CCH EPD P 9903,
58 CCH LC P 9149, affd (CA5 Ga) 412 F2d 462, 1 BNA FEP Cas 787, 71 BNA LRRM 2614, 2 CCH EPD P 10019, 60
CCH LC P 9261.
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USCS Fed Rules Civ Proc R 34
Request for each and every "memorandum, investigation report, or item of correspondence prepared by persons
investigating this accident on defendant's behalf other than those made by defense counsel" did not comply with Rule
34 as amended; rule codifies requirement judicially engrafted upon prior Rule 34 that items to be inspected must be
described with "reasonable particularity." Tinder v McGowan (1970, WD Pa) 15 FR Serv 2d 1608.
25. --By category
Although each specific paper sought was not designated, Rule 34 was satisfied by designation of documents by
categories, where categories themselves were set forth with reasonable particularity. Roebling v Anderson (1958) 103
App DC 237, 257 F2d 615.
Where plaintiff has designated specific subject about which information is desired and there is no reason to believe
that defendants will have trouble in finding documents, there is no need for specific designation of exact document
desired. G. & P. Amusement Co. v Regent Theater Co. (1949, DC Ohio) 9 FRD 721.
Motions calling for "categories" as distinguished from designation of each specific document are sufficient. Bunch
v General Motors Corp. (1950, DC Tenn) 9 FRD 682; Leven v Birrell (1952, DC NY) 13 FRD 341.
Motion is sufficiently specific if desired documents are designated by categories from which nature of case enables
reasonable man to know what documents to produce. Frank v Tinicum Metal Co. (1950, DC Pa) 11 FRD 83.
There is no hard and fast rule regarding degree of particularity with which documents must be described, and it is
generally considered sufficient if documents are denominated by categories, so long as categories are defined in
reasonably specific manner. Jensen v Boston Ins. Co. (1957, DC Cal) 20 FRD 619.
Identifications of documents by categories is sufficient compliance with requirements of Rule 34 that documents be
"designated." United States v American Optical Co. (1965, ED Wis) 37 FRD 233, 1965 CCH Trade Cases P 71404, 9
FR Serv 2d 34.411, Case 1.
Request is sufficient where category and subject matter of documents sought are designated with some reasonable
degree of particularity. Richland Wholesale Liquors, Inc. v Joseph E. Seagram & Sons, Inc. (1966, DC SC) 40 FRD
480, 1966 CCH Trade Cases P 71923, 10 FR Serv 2d 958.
Designation was sufficiently limited both spatially and temporally to documents submitted to Securities and
Exchange Commission in connection with its investigation of financial collapse of specific company. Mallinckrodt
Chemical Works v Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348, CCH Fed Secur L Rep P 93793, 16 FR Serv 2d
1517.
Broad definition of term "documents" is permissible to insure that all discoverable material is provided; request for
production of documents relating to certain listed categories of information, which request defined documents to include
long list of types or methods of transcription, was not objectionable under Rule 34(b). Laufman v Oakley Bldg. & Loan
Co. (1976, SD Ohio) 72 FRD 116, 23 FR Serv 2d 849.
26. --Sufficiency of particular descriptions
Plaintiff's request for production of documents in support of his motion for writ of coram nobis may be rightfully
quashed by district court where discovery request is in discretion of court, especially in light of breadth of discovery
requests in relation to rather narrow ground of illegal surveillance upon which coram nobis motion is based. United
States v Balistrieri (1979, CA7 Ill) 606 F2d 216, 80-1 USTC P 9228, 28 FR Serv 2d 1223, 45 AFTR 2d 80-670, 53 ALR
Fed 752, cert den 446 US 917, 64 L Ed 2d 271, 100 S Ct 1850.
In action for damages and accounting involving licensing agreements, plaintiff's request for documents relating to
basic license agreements, any changes thereto, and agreement to pay royalties under basic license agreement, was
sufficient. Houdry Process Corp. v Commonwealth Oil Refining Co. (1959, SD NY) 24 FRD 58, 2 FR Serv 2d 558
(disapproved on other grounds by Southern R. Co. v Lanham (CA5 Ga) 403 F2d 119, 12 FR Serv 2d 860, 33 ALR3d
427, reh den (CA5 Ga) 408 F2d 348).
Documents were insufficiently designated where request was for all statements of persons interviewed and reports
thereof by government agents on any matter relating to complaint upon which plaintiff would rely at trial, records for
material-handling equipment described in complaint, all documents in possession or control of plaintiff upon which it
would rely to prove matters alleged in 11 specified paragraphs of complaint, and all reports indicating relative position
of defendant in material-handling equipment market during 8-year period. United States v Dempster Bros., Inc. (1962,
ED Tenn) 31 FRD 207, 6 FR Serv 2d 636.
Motion in patent infringement action to require plaintiff to produce all documents and other objects and materials
that in any way support specified allegations in complaint, and all minutes, records, memoranda, notes, diaries,
correspondence, and office memoranda or other documents including all drawings and all prior art patents and prior art
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USCS Fed Rules Civ Proc R 34
documents relating to specified patent application, sufficiently specified what defendant wanted produced. Wilson
Jones Co. v Elbe File & Binder Co. (1963, DC Mass) 33 FRD 356, 138 USPQ 570, 7 FR Serv 2d 683.
Pretrial discovery request was sufficient to designate desired documents where in complex patent action plaintiff
sought production of all documents evidencing consideration, by or on behalf of defendant, of oil well packer structures
made or offered for sale by plaintiff, plaintiff explaining that word "consideration" was used in its discretionary sense.
Camco, Inc. v Baker Oil Tools, Inc. (1968, SD Tex) 45 FRD 384, 160 USPQ 541, 12 FR Serv 2d 845.
Where plaintiff sought documents encompassing "any soil analysis reports on the land which is the subject matter of
this litigation," defendants' exception to this request as too broad would be denied, since Rule 34(b) requires only that
document sought be designated with reasonable particularity so that party from whom discovery is sought is appraised
of documents he is to produce, and this request should apprise reasonable man of documents sought to be produced.
Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
In action for conversion of fixtures and equipment used in operation of nursing home, plaintiff's request for
production of "all the letters, documents, mortgages, deeds of trust, security agreements" regarding underlying
transaction and subsequent transactions involving property in question satisfied categorical listing and "reasonable
particularity" conditions of Rule 34(b). Pleasant Hill Bank v United States (1973, WD Mo) 58 FRD 97, 17 FR Serv 2d
897.
Test of whether request is reasonably specific is whether reasonable man would know what documents or things
were called for, and where plaintiff sought order compelling defendant to produce for plaintiffs' inspection "all
documents submitted to the Securities and Exchange Commission (SEC) in connection with the SEC's investigation of
the financial collapse of the Penn Central Co.," it was clear that defendant could identify documents demanded by
plaintiffs, particularly since defendant had already produced those documents to SEC. Mallinckrodt Chemical Works v
Goldman, Sachs & Co. (1973, SD NY) 58 FRD 348, CCH Fed Secur L Rep P 93793, 16 FR Serv 2d 1517.
Document request is not reasonably particular if it merely requests documents related to claim or defense in
litigation. Kidwiler v Progressive Paloverde Ins. Co. (2000, ND W Va) 192 FRD 193.
27. Pleadings limitations
Discovery may not be had concerning withdrawn items of counterclaim. Campbell v American Fabrics Co. (1942,
DC NY) 2 FRD 204.
Plaintiff is entitled to inspect documents in defendant's possession that tend to sustain plaintiff's claim. Golden v
Arcadia Mut. Casualty Co. (1942, DC Ill) 3 FRD 26.
In civil antitrust action defendants' objection to government's motion to produce certain documents which covered
defendants' relations with companies in foreign countries and not named in complaint would be sustained, and
discovery would be limited territorially to United States and Canada. United States v Grinnell Corp. (1962, DC RI) 30
FRD 358, 5 FR Serv 2d 564.
28. Time limitations
In action for loss of profits, plaintiff may be required to produce its records covering period prior to that during
which loss is alleged to have occurred. Connecticut Importing Co. v Continental Distilling Corp. (1940, DC Conn) 1
FRD 190.
In action on contract for sale of vessels in which one of defenses was that consent to such sale had been withdrawn
by maritime commission, thereby rendering performance impossible, plaintiff would be permitted discovery of
communications between defendant and commission had before date of agreement as well as after such date.
Compagnie Continentale D'Importation v Pacific Argentine Brazil Line, Inc. (1940, DC NY) 1 FRD 388.
After allegations relating to acts prior to certain date have been stricken from complaint, production of documents
should be limited to those relating to acts committed after such date. Winkelman v General Motors Corp. (1941, DC
NY) 1 FRD 695.
Plaintiff was not entitled to request documents written on or before specified date relating to action before court.
Houdry Process Corp. v Commonwealth Oil Refining Co. (1959, SD NY) 24 FRD 58. 2 FR Serv 2d 558 (disapproved on
other grounds by Southern R. Co. v Lanham (CA5 Ga) 403 F2d 119, 12 FR Serv 2d 860, 33 ALR3d 427, reh den (CA5
Ga) 408 F2d 348).
In civil antitrust action defendants' objection to motion to produce certain documents on basis of remoteness of time
would be overruled as to agreement executed in 1907 where government alleged that 1907 agreement and subsequent
agreements were still in operation as late as 1955 and that these agreements might be basis for alleged violations of
Antitrust Laws, but discovery of other documents would be limited to period of ten years prior to filing of action.
United States v Grinnell Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
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USCS Fed Rules Civ Proc R 34
In action by which milk producers' co-operative claims defendant-dairy is violating Agricultural Fair Practices Act [7
USCS § 2303], plaintiff's motion to compel dairy to answer interrogatories and produce documents for inspection and
copying will be granted for 9-month period but denied as to subsequent period where information sought includes
current data of competitive advantage to co-operative contained in dairy's confidential reports to Department of
Agriculture, and where plaintiff has not established to court's satisfaction that current information would further lawsuit
rather than its potential competitive advantage. Manitowoc Milk Producers Cooperative v Kornely Guernsey Farms
Dairy (1973, DC Wis) 61 FRD 499.
Though defendant corporation in antitrust action should not be subjected to discovery of documents from
unreasonably remote time period, documents which, at most, antedate institution of action by 12 1/2 years and period of
limitations by 7 1/2 years are not unreasonably or extremely remote in time. Federal Trade Com. v Lukens Steel Co.
(1977, DC Dist Col) 444 F Supp 803, 1977-1 CCH Trade Cases P 61372, 23 FR Serv 2d 1142.
Inclusion of references to FRCP 45 within FRCP 26(a)(5) and FRCP 34(c) is clear indication that procuring
documents from nonparties can constitute discovery, and although neither FRCP 45 nor FRCP 34 contains any time
limit within which to procure documents from third parties, this does not mean that party should be allowed to employ
subpoena after discovery deadline to obtain materials from third parties that could have been produced during
discovery. Alper v United States (2000, DC Mass) 190 FRD 281.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
29. Data compilations
While it appears that language of Rule 34(a)(1) applies directly only to situation where respondent can be required to
prepare information in usable form, such as print-out, it does not preclude production of computed input information
such as computer cards or tapes, and because of accuracy and inexpensiveness of producing requested computerized
master payroll file and computer print-outs for W-2 forms of defendant's employees as requested by plaintiffs,
defendant would be ordered to supply them. Adams v Dan River Mills, Inc. (1972, WD Va) 54 FRD 220, 4 BNA FEP
Cas 523, 4 CCH EPD P 7754, 15 FR Serv 2d 1275.
Discovery in Title VII race discrimination class action of employer's statistical data dated 1965 and later is sufficient
for plaintiffs to establish prior system of discrimination and to prove present acts complained of are discriminatory.
Stevenson v General Electric Co. (1978, SD Ohio) 26 FR Serv 2d 574.
Cost of production of defendant's computer printout is not shifted to plaintiffs under Rules 26(c) and 34, where court
determines that amount of money involved is not excessive or inordinate, relative expense and burden in obtaining data
would be substantially greater to requesting party as compared with responding party, amount of money required to
obtain data as set forth by defendant would be substantial burden to plaintiffs, and responding party is benefited in its
case to some degree by producing data in question. Bills v Kennecott Corp. (1985, DC Utah) 108 FRD 459, 40 BNA
FEP Cas 1182, 42 CCH EPD P 36732.
In action by former employee against her former employer alleging gender discrimination, failure to promote, and
retaliation under Title VII of Civil Rights Act of 1964, 42 USCS § 2000e et seq., N.Y. Exec. Law § 296, and New
York City law, following employer's production of sample of e-mails from restored computer backup tapes, employee's
motion to compel production of all remaining backup e-mails was granted and one quarter of cost of any further
production concerning computer backup tapes requested under Fed. R. Civ. P. 34(a) was shifted to employee pursuant
to Fed. R. Civ. P. 26(b)(2) and (c) because employee demonstrated that marginal utility of backup tapes was potentially
high, cost of restoration was not significantly disproportionate to projected value of case, employee probably had
financial wherewithal to cover at least some of cost of restoration, and, although employee did not show that there was
indispensable evidence on backup tapes, there was plainly relevant evidence that was only available on backup tapes.
Zubulake v UBS Warburg LLC (2003, SD NY) 216 FRD 280, 92 BNA FEP Cas 684.
30. Drawings, graphs, charts, photographs, and phono-records
In patent case, party would be directed to produce and permit inspection, copying, and photographing of drawings
and written descriptions to be relied upon to carry date of conception or reduction to prior practice. Prosperity Co. v St.
Joe Machines, Inc. (1942, DC Mich) 2 FRD 299, 53 USPQ 15.
Photographs in possession of defendants were within request for production of all documents relating to specific
subject. Coalition of Black Leadership v Doorley (1972, DC RI) 349 F Supp 127.
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USCS Fed Rules Civ Proc R 34
Pictures taken of party by or at direction of adverse party without knowledge of party being photographed are subject
to discovery by portrayed party. Snead v American Export-Isbrandtsen Lines, Inc. (1973, ED Pa) 59 FRD 148, 17 FR
Serv 2d 13.
Drawings, charts and calculations based upon videotapes of patron movement at stadium, made under court order for
entry and inspection under Rule 34(a)(2) but made by person not under witnesses' supervision, cannot be received.
International Soc. for Krishna Consciousness, Inc. v New Jersey Sports & Exposition Authority (1981, DC NJ) 532 F
Supp 1088, 10 Fed Rules Evid Serv 472, affd (CA3 NJ) 691 F2d 155.
Videotape or transcript of plaintiffs' counsel's interview with nonparty witness, which disclosed counsel's mental
impressions, conclusions, opinions and legal theories about case is protected from disclosure by work product doctrine,
despite fact that ongoing client fraud are shown to exist. Motley v Columbia Broadcasting Systems, Inc. (1982, ND
Ind) 94 FRD 733, 13 Fed Rules Evid Serv 211, 36 FR Serv 2d 264.
Adult entertainment store owner's motion to strike photographs of store was denied where county proffered evidence
that if offered owner opportunity to inspect photographs of owner's store, pursuant to owner's document production
request, prior to discovery deadline. Bigg Wolf Disc. Video Movie Sales, Inc. v Montgomery County (2003, DC Md) 256
F Supp 2d 385.
Photographs of civil litigant realized by opponent's surveillance as subject to pretrial discovery, 19 ALR4th 1236.
Discovery, inspection, and copying of photograph of article or premises the condition of which gave rise to instant
litigation. 95 ALR2d 1061.
31. --Accident scene
In suit by passenger against bus company for alleged negligence, trial court did not err in sustaining motion of
plaintiff for production of names of witnesses and all photographs. Atlantic Greyhound Corp. v Lauritzen (1950, CA6
Tenn) 182 F2d 540.
Plaintiff in personal injury accident was entitled to discovery of photographs taken on behalf of defendant at scene of
accident. Potter Title & Trust Co. v Pennsylvania R. Co. (1946, DC Pa) 6 FRD 609; Dowd v American S.S. Co. (1945,
DC NY) 5 FRD 240.
Plaintiff's request of defendant to produce any photographs it might have of accident scene where plaintiff was struck
by truck operated by defendant was proper since defendant was in advantageous position immediately following
accident to make investigation and take photographs of accident scene, whereas plaintiff was disabled. Cogdill v
Tennessee Valley Authority (1947, DC Tenn) 7 FRD 411.
Insurance carrier would be required to produce photographs it had caused to be made of scene of accident, in action
between parties to automobile collision. Simper v Trimble (1949, DC Mo) 9 FRD 598.
In action by longshoreman to recover for injuries received in fall through open hatch in loading vessel owned and
operated by defendant, plaintiff was entitled under Rule 34 to inspect and make photographs of ship, and in event vessel
was unavailable defendant should then be required to produce any photographs of it in defendant's custody and control.
Lester v Isbrandtsen Co. (1950, DC Tex) 10 FRD 338.
In action against truck operator for personal injuries from railroad crossing collision, railroad's photos would be
produced since they were prepared in usual course of plaintiff-railroad's business in making routine investigations of
accidents, pursuant to plaintiff's policy of investigating all accidents in which interests of railroad were involved.
Pennsylvania R. Co. v Julian (1950, DC Del) 10 FRD 452.
Production of photographs in defendant's possession could be compelled upon motion under Rule 34 in action for
injuries suffered in fall allegedly due to hole in pavement of city street since pictures would reflect conditions as they
existed at time of accident. Flynn v J. C. Nichols Co. (1951, DC Mo) 11 FRD 275.
Motion under Rule 34 to compel defendant to produce photographs of vessel on which plaintiff was injured would be
granted. Palensar v Isthmian S.S. Co. (1951, DC NY) 11 FRD 552.
Plaintiff in damage suit against railway company was entitled under this rule to inspect photographs of accident in
possession of defendant. Swallow v Harrisburg R. Co. (1951, DC Pa) 99 F Supp 305.
Where insurer denied liability under life policy on ground that insured committed suicide, defendant was entitled to
discovery of photographs in plaintiff's possession where these would be relevant in showing position of deceased's
body, nature of wounds, and location of weapon. Aetna Life Ins. Co. v Little Rock Basket Co. (1953, DC Ark) 14 FRD
383.
Plaintiff's motion to require defendant to produce photographs taken on behalf of defendant in course of its
investigation of accident, in which plaintiff fell in defendant's store, would be granted because they would be pertinent
evidence in light of probability that physical scene of accident had changed since injury occurred. Helverson v J. J.
Newberry Co. (1954, DC Mo) 16 FRD 330.
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USCS Fed Rules Civ Proc R 34
Where plaintiff sought by use of interrogatories to compel production of photographs in defendant's possession
relating to accident, defendant's objection that production could not be required under Rule 33 but only under Rule 34
would be overruled on ground that objection was essentially "technical" and request would be treated as motion to
produce pursuant to Rule 34. Novick v Pennsylvania R. Co. (1955, DC Pa) 18 FRD 296.
In wrongful death action arising out of automobile accident, photographs made by investigator employed by
someone other than party would be required to be produced. McNelley v Perry (1955, DC Tenn) 18 FRD 360.
In granting motion under Rule 34 to compel defendant to produce photographs taken by it in course of post accident
investigation, court would observe that allowing pre-trial disclosure appeared to be better course. Parla v Matson
Navigation Co. (1961, SD NY) 28 FRD 348, 4 FR Serv 2d 489.
In action against Tennessee Valley Authority for death of plaintiff's husband who was working for private company
at steam plant facility when he was killed, investigative reports and photographs were subject to discovery, but report of
expert metallurgist was not. Hoagland v Tennessee Valley Authority (1963, ED Tenn) 34 FRD 458, 8 FR Serv 2d
34.13, Case 7.
In action on windstorm policies, photographs of plaintiff's destroyed property following storm which were of
contemporaneous nature and not capable of being obtained elsewhere, taken by insurer's investigators, would be
produced. Scuderi v Boston Ins. Co. (1964, DC Del) 34 FRD 463, 8 FR Serv 2d 34.13, Case 3.
Surveillance films taken of plaintiff following accident in which plaintiff was allegedly injured are subject to
discovery subject to right of defendant to depose and preserve for record any testimony of plaintiff or those whose
testimony might be affected by viewing films before allowing films to be viewed. Blyther v Northern Lines, Inc.
(1973, ED Pa) 61 FRD 610, 17 FR Serv 2d 1186.
Civil litigant is entitled to inspect photographs and movies which were taken by defendant to demonstrate that
litigant's injuries are not as alleged. Martin v Long Island R. R. Co. (1974, ED NY) 63 FRD 53, 18 FR Serv 2d 1040.
32. Entry on land or other property
Federal district court had power to make order that cattle raisers, who claimed that their cattle were being damaged
by operation of aluminum plant, permit aluminum plant operator to enter upon cattle raisers' properties to make certain
tests and examinations of cattle and properties. Martin v Reynolds Metals Corp. (1969, CA9 Or) 297 F2d 49, 5 FR
Serv 2d 467.
Court abuses its discretion in allowing inspection of 5 plants owned by defendant to be conducted over 5-day period
by expert whose expertise is not described and who is to be given right to roam through plants, to stop when he chooses
and to make such inquiries as he deems appropriate of any supervisors or employees in plant and where such expert is to
be accompanied by entourage consisting of unspecified number of plaintiffs' attorneys, paralegal, and 2 plaintiffs.
Belcher v Bassett Furniture Industries, Inc. (1978, CA4 Va) 588 F2d 904, 18 BNA FEP Cas 1078, 18 CCH EPD P
8705, 26 FR Serv 2d 546.
In right-to-treatment phase of juvenile rights case, plaintiffs' motion for leave to permit designated experts to conduct
participant observation study at certain institutions under supervision of state youth council would be granted where
plaintiffs demonstrated sufficient interdisciplinary support to justify study and where such study fell within scope of
discovery contemplated by Rule 34(a)(2). Morales v Turman (1972, ED Tex) 59 FRD 157, 17 FR Serv 2d 1039.
Subcontractor suing prime contractor for breach of contract may not inspect remaining contract work to be
completed by new contractor even though plaintiff claims that such inspection is necessary in order to document its
claim that compliance with plans and specifications as written was impossible, that project inspectors, while inspecting
its work had interpreted plans and specifications in manner which was unreasonably severe, and that project inspector
would not adopt such severe standards in reviewing work of new subcontractor, because new subcontractor is not party
to action, plaintiff has alternative means of discovery, there is possibility of disclosure of new subcontractor's
confidential methods of operation and trade secrets to plaintiff-business competitor if inspection is allowed, and prime
contractor does not have control as required by Rule 34 since it has right to enter upon barge in question to inspect
completed work only and does not have right to general access to barge to inspect work in progress. Santa Fe
International Corp. v Potashnick (1979, ED La) 83 FRD 299.
In case alleging that minimum height and weight requirements discriminate unlawfully against women applicants,
plaintiffs are not prohibited either by Rule 26(b)(4)(B) or Rule 26(b)(3) from gaining access to defendant's plant to
observe special production line established under supervision of defendant's attorneys and their consultants as industrial
physiological study of relationship between minimum physically hiring standards in issue in case and various entry
level jobs at facility. Eirhart v Libbey-Owens-Ford Co. (1981, ND Ill) 93 FRD 370, 27 BNA FEP Cas 1285, 27 CCH
EPD P 32382, 33 FR Serv 2d 714, later proceeding (ND Ill) 692 F Supp 871, 47 BNA FEP Cas 1070, 50 CCH EPD P
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USCS Fed Rules Civ Proc R 34
39124, later proceeding (ND Ill) 1988 US Dist LEXIS 12917, later proceeding (ND Ill) 726 F Supp 700, 51 BNA FEP
Cas 938.
Rule 34 does not authorize District Court to order nonparty to permit entry on its land by party. Pollitt v Mobay
Chemical Corp. (1982, SD Ohio) 95 FRD 101, 34 FR Serv 2d 1272, later proceeding (CA6 Ohio) 894 F2d 858.
In civil rights action brought by inpatients of state mental health facilities, plaintiffs would be permitted to enter
various facilities run by defendants, who were all state officials, for purpose of photographing or videotaping pursuant
to Rule 34 facilities themselves and types, numbers, duties, and locations of on-duty medical care personnel at those
facilities, as long as such filming does not interfere with operation of facility. N.O. v Callahan (1986, DC Mass) 110
FRD 637.
Relevance requirement of Rule 26, governing inspection permitted by Rule 34, was met where inspection request
covered manufacturing facilities and processes at issue in patent infringement claim and counterclaim. Cuno, Inc. v
Pall Corp. (1987, ED NY) 116 FRD 279, 5 USPQ2d 1303, 8 FR Serv 3d 213, later proceeding (ED NY) 117 FRD 506,
5 USPQ 2d 1683, 8 FR Serv 3d 343.
In action arising out of written agreement to conduct research, development, and marketing of human blood
substitute, plaintiff was not entitled to enter upon land of nonparty to observe human clinical testing of product, since it
was irrelevant to breach of contract issue, nonparty's license and testing agreement covered different geographic area
than agreement at issue, and nothing in agreement at issue provided plaintiff with right to observe human clinical testing
conducted by nonparty. Bio-Vita, Ltd. v Biopure Corp. (1991, DC Mass) 138 FRD 13.
In environmental contamination case, FRCP 34(a)(2) does not authorize defendant's experts to observe plaintiff's
experts as they do their work to assess contamination or take steps to correct it. Teer v Law Eng'g & Envtl. Servs. (1997,
ED NC) 176 FRD 206.
Discovery and inspection of articles and premises in civil actions other than for personal injury or death. 4 ALR3d
762.
33. --Injury scene
Plaintiff in personal injury action was allowed to inspect and photograph that portion of vessel where he was
allegedly injured. Canty v Great Lakes Transit Corp. (1941, DC NY) 2 FRD 156.
Where longshoreman was injured in fall through open hatch in loading vessel owned and operated by defendant, he
was entitled under Rule 34 to inspect and make photographs of ship. Lester v Isbrandtsen Co. (1950, DC Tex) 10 FRD
338.
In action for injury aboard vessel, plaintiff was entitled to inspect vessel. Vermilyea v Chesapeake & O. R. Co.
(1951, DC Mich) 11 FRD 255; Rosenthal v Compagnie Generale Transatlantique (1953, DC NY) 14 FRD 336; Hindle
v National Bulk Carriers, Inc. (1955, DC NY) 18 FRD 198.
Administratrix and her attorneys would be permitted to enter defendant's building containing treatment coater
machine where decedent was working at time of his injury, for purpose of inspecting, measuring, and photographing
property and machine, including controls, instruments, and all related functions. Cox v E. I. Du Pont de Nemours &
Co. (1965, DC SC) 38 FRD 396, 10 FR Serv 2d 973.
Discovery and inspection of article or premises the condition of which is alleged to have caused personal injury or
death. 13 ALR2d 657.
34. --Pollution source
In action charging defendant with river pollution, United States should be permitted to inspect defendant's property
and take earth samples but, pursuant to court's general equity powers and not under Rule 53, court would appoint
special master to supervise inspection. United States v Moss-American, Inc. (1977 ED Wis) 25 FR Serv 2d 203.
Private litigant is free to use procedures outlined in Rule 34 to collect and test its own soil samples, but it has no right
to test samples secured by Environmental Protection Agency absent compelling circumstances; when EPA has
sufficient samples and private party agrees to pay costs involved, it is preferable for EPA to allow private party to use
samples it has collected, but as condition for such use, EPA may impose requirement that party make results of its
analysis available to EPA. Wehner v Syntex Corp. (1985, ED Mo) 107 FRD 248, 1 FR Serv 3d 1463, 15 ELR 21018.
Even though EPA had initiated civil suit against hazardous waste management facility, EPA's inspection rights are
not limited to discovery proceedings of Fed. R. Civ. P. 34(b), and EPA may inspect facility because inspection
provisions of Resource Conservation and Recovery Act (42 USCS § 6927) are necessary to enforcement of Act and are
not precluded by Rule 34. Re Stanley Plating Co. (1986, DC Conn) 637 F Supp 71, 17 ELR 20157.
In action brought by owners of land against owners of adjoining land to obtain equitable relief with respect to alleged
pollution of artesian well, lower court abused discretion in denying plaintiffs' motion for discovery under state Rule
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USCS Fed Rules Civ Proc R 34
34(a) (Rule substantially same as Federal Rule 34) whereby they sought permission to enter upon premises of
defendants to inspect operation of cesspool thereon by placing in it quantity of dye to determine whether dye thereafter
appeared in plaintiffs' water supply, where requested discovery was within scope of state Rule 26(b) and where there
was no claim of privilege by defendants. Borland v Dunn (1974) 113 RI 337, 321 A2d 96.
35. Tangible things
Word "inspection" has broader meaning than just looking, and including sampling and testing, by aluminum plant
operator, of forage, feed, air, water, soil, vegetation, and mineral supplements on cattle raiser's land, in anticipation of
action by cattle raiser against plant operator claiming damage to his cattle from chemicals discharged from defendant's
plant. Martin v Reynolds Metals Corp. (1961, CA9 Or) 297 F2d 49, 5 FR Serv 2d 467.
Court did not agree with plaintiff's contention that there was significant distinction between making "copies" and
"photographs" unless former was restricted to quill and longhand, a construction of Rule 34 that it emphatically
rejected. Diapulse Corp. of America v Curtis Pub Co. (1967, CA2 NY) 374 F2d 442, 10 FR Serv 2d 1029.
Upon motion to inspect and photograph, court would refuse to pass upon admissibility of any evidence which might
be thus obtained. Canty v Great Lakes Transit Corp. (1941, DC NY) 2 FRD 156.
In patent action, plaintiff was not required to incur substantial expense to construct model from drawings and
specifications for inspection by defendant. Carter Bros., Inc. v Cannon (1941, DC Tenn) 2 FRD 174, 51 USPQ 411.
Plaintiff was entitled to production and inspection of article which allegedly caused his injury in action against
defendant who had control of article. Romero v International Terminal Operating Co. (1955, DC NY) 18 FRD 317;
Carlson v Chisolm-Moore Hoist Corp. (1957, DC NY) 21 FRD 144.
In personal injury action in which allegation was made of breach of warranty with regard to defective brake
assembly, defendant was entitled to have assembly produced so that it could be photographed, X-rayed, and tested by
installation in another automobile. Quinn v Chrysler Corp. (1964, WD Pa) 35 FRD 34, 8 FR Serv 2d 34.621, Case 1.
Documents and tangible things which are not trial preparation material and are relevant are routinely discoverable.
Peterson v United States (1971, DC Ill) 52 FRD 317, 15 FR Serv 2d 417.
Where plaintiff contended that her injuries were caused by defendant's check-sorting machine, her motion to compel
defendant to produce it for examination would be granted. Belz v Burroughs Corp. (1973, ED Pa) 17 FR Serv 2d 1214.
Regardless of whether request is made pursuant to FRCP 34 or FRCP 35, party may obtain fingerprints of another
party or person under such other party's control upon establishing that such evidence is relevant and that there is good
cause for obtaining fingerprints of such other party or person. Harris v Athol-Royalston Reg'l Sch. Dist. Comm. (2002,
DC Mass) 206 FRD 30.
Discovery and inspection of articles and premises in civil actions other than for personal injury or death. 4 ALR3d
762.
Discovery and inspection of article or premises the condition of which is alleged to have caused personal injury or
death. 13 ALR2d 657.
36. --Seized goods
Remedy of discovery is appropriate to proceedings to condemn shipments of seized goods, since these rules apply to
condemnation proceedings, and discovery is not limited to analysis of fresh fruits and vegetables, but apply to any
goods seized under Federal Food, Drug, and Cosmetic Act. United States v 5 Cases, More or Less, etc. (1950, CA2
Conn) 179 F2d 519, cert den 339 US 963, 94 L Ed 1372, 70 S Ct 997.
37. --Testing
In action involving damages to automobile, trial court can insist that it be inspected and reasonable tests be made in
order to ascertain true condition of vehicle. Fisher v United States Fidelity & Guaranty Co. (1957, CA7 Ill) 246 F2d
344.
Pursuant to Rule 34, court has authority to order objects produced in order that moving party may have objects
tested, but where plaintiffs sought to test objects first, their failure to do so permits court to order plaintiffs to produce
objects for testing by defendants, but rule does not justify court ordering test of objects by plaintiffs. Sladen v
Girltown, Inc. (1970, CA7 Ill) 425 F2d 24, 13 FR Serv 2d 989.
In action against manufacturer for injuries sustained in fire allegedly caused by furnace, District Court did not abuse
its discretion in denying manufacturer's request for destructive testing of furnace, where (1) manufacturer did not
request evidence prior to first trial and did not request evidence until 4 years after fire occurred, (2) District Court did
permit limited destructive testing of portions of furnace and manufacturer did not indicate that limited testing would
prevent it from securing necessary evidence for its defense, and (3) manufacturer's expert who conducted limited testing
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USCS Fed Rules Civ Proc R 34
testified concerning his conclusions about other portions of furnace which he did not specifically test. Dabney v
Montgomery Ward & Co. (1985, CA8 Iowa) 761 F2d 494, CCH Prod Liab Rep P 10514, 17 Fed Rules Evid Serv 1228,
1 FR Serv 3d 991, cert den 474 US 904, 88 L Ed 2d 232, 106 S Ct 233.
With respect to Rule 34 request by Commissioner of Patents, in context of litigation relative to patentability of
invention, that device be relinquished to National Bureau of Standards for testing, District Court exceeded its
discretionary authority in departing from standard procedures and safeguards implementing Rule 34, to extent that
fundamental fairness is absent from tests as authorized; in particular, petitioner should not be barred from observing all
tests on his device, or from knowing in advance what tests are to be conducted. Re Newman (1986, CA FC) 782 F2d
971, 228 USPQ 450, later proceeding (DC Dist Col) 681 F Supp 16, 5 USPQ2d 1880, affd (CA FC) 877 F2d 1575, 11
USPQ2d 1340, mod on other grounds (CA FC) 886 F2d 329 and mod on other grounds (CA FC) 1989 US App LEXIS
14954.
Testing of object is well within spirit of word "inspection" used in Rule 34, provided testing will not damage object
or, as alternative, object can be replaced or paid for; where object sought to be tested is unique in that it will constitute
important exhibit in plaintiff's case and where it could not be replaced in time if damage resulted, motion for court order
directing party to produce for inspection and testing of object will be denied. Home Ins. Co. v Cleveland Electric
Illuminating Co. (1959, ND Ohio) 7 FR Serv 2d 731.
Rule 34 clearly does not justify procedure of having other party ordered to conduct tests devised by movant.
Sperberg v Firestone Tire & Rubber Co. (1973, ND Ohio) 61 FRD 80, 18 FR Serv 2d 1057.
Defendants in products liability action arising out of burns suffered by infant plaintiff allegedly due to flammability
of nightwear manufactured and sold by defendants were entitled to production of portions of garments remaining in
plaintiffs' possession for destructive testing, where plaintiffs' expert had already conducted tests on fabric without notice
to defendants, testing by defendants was essential to their defense of improper laundering, plaintiffs would be permitted
to attend testing, testing would be videotaped, and plaintiffs would be permitted to depose defendants' experts after
conclusion of testing. Ostrander v Cone Mills, Inc. (1988, DC Minn) 119 FRD 417.
Destructive testing of cane whose failure allegedly caused plaintiff's personal injuries would be approved since its
tensile strength and composition were relevant. Spell v Kendall-Futuro Co. (1994, ED Tex) 155 FRD 587.
In products liability action brought against manufacturer of oral polio vaccine by parents of child who was allegedly
infected with AIDS from viral contaminant present in vaccine, parents' request to conduct polymerase chain reaction
tests for HIV-1 on monopools of defendant's vaccine was relevant; however, request to conduct tests for HIV-2 and SIV
(simian immunodeficiency virus) was not relevant, since defendant submitted substantial evidence that HIV-2 and SIV
are not causes of AIDS in persons not infected with those viruses, and that SIV cannot mutate into HIV-1 within person.
Williams v American Cyanamid (1995, DC NJ) 164 FRD 608, affd, stay den (1996, DC NJ) 164 FRD 615.
B. Writings
38. Generally
Inspection of relevant papers and records should be obtained under Rule 34. Heiner v North American Coal Corp.
(1942, DC Pa) 3 FRD 64.
Without more, discovery should not be less available where relevant, non-privileged information is contained in
document than when such information is lodged in memory of witness. Crowe v Chesapeake & O. R. Co. (1961, ED
Mich) 29 FRD 148, 5 FR Serv 2d 586.
Party may not excuse itself from compliance with Rule 34 by utilizing system of record-keeping which conceals
rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering production
of documents excessively burdensome and costly expedition; to allow defendant whose business generates massive
records to frustrate discovery by creating inadequate filing system, and then claim undue burden would defeat purposes
of discovery rules; private corporation cannot avoid producing documents by allegation of impossibility if it can obtain
requested information from sources under its control. Kozlowski v Sears, Roebuck & Co. (1976, DC Mass) 73 FRD 73,
22 FR Serv 2d 1008.
FRCP 34, when read in conjunction with FRCP 26(b), must be broadly construed to require production of relevant
physical evidence, including handwriting exemplars. Harris v Athol-Royalston Regional School Dist. (2001, DC Mass)
200 FRD 18.
39. Preparation
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USCS Fed Rules Civ Proc R 34
Rule 34 cannot be used to require adverse party to prepare, or cause to be prepared, writing to be produced for
inspection, but can be used only to require production of things in existence. Soetaert v Kansas City Coca Cola
Bottling Co. (1954, DC Mo) 16 FRD 1.
40. Translation
Rule 34 does not authorize District Court at pre-trial stage to order party producing documents in discovery to pay
cost of translating documents from one language to another for benefit of requesting party. Re Puerto Rico Electric
Power Authority (1982, CA1 Puerto Rico) 687 F2d 501, 34 FR Serv 2d 1119.
No legitimate basis exists for raising objection of burdensomeness or expense to discovery procedures in contract
action where correspondence between American corporation and Japanese subcontract is in Japanese; documents must
be produced in English and if they are in language other than English, party producing them must bear financial burden,
as incident of discovery, of translating documents into English. Mitsui & Co. v Puerto Rico Water Resources Authority
(1978, DC Puerto Rico) 26 FR Serv 2d 377, adhered to (DC Puerto Rico) 26 FR Serv 2d 380, app den (CA1 Puerto
Rico) 26 FR Serv 2d 341.
Pursuant to usual rule that each party must finance his own suit, including payment of pretrial discovery costs, court
will deny plaintiffs' motion for order directing defendant to translate or to produce English translations of Korean
language documents obtained through discovery, as well as plaintiffs' alternative suggestion that cost of such
translations be considered shared discovery cost. Re Korean Air Lines Disaster (1984, DC Dist Col) 103 FRD 357, 40
FR Serv 2d 868, later proceeding (DC Dist Col) 597 F Supp 621, 10 Media L R 2494, 40 FR Serv 2d 870, later
proceeding (DC Dist Col) 664 F Supp 1463, 91 ALR Fed 519, later proceeding (DC Dist Col) 646 F Supp 30, later
proceeding (DC Dist Col) 664 F Supp 1478, later proceeding (DC Dist Col) 664 F Supp 1481, later proceeding (DC
Dist Col) 664 F Supp 1488, affd 265 App DC 39, 829 F2d 1171, cert gr 485 US 986, 99 L Ed 2d 499, 108 S Ct 1288,
motion gr (US) 101 L Ed 2d 974, 109 S Ct 23, later proceeding (DC Dist Col) 704 F Supp 1135, 1989 AMC 249 and
affd (US) 104 L Ed 2d 113, 109 S Ct 1676.
41. Particular records and reports; accident
In action by seaman for personal injuries, defendant shipowner would be ordered to allow plaintiff to inspect and
copy any reports made in regular course of business with reference to plaintiff's injuries; and plaintiff should be
permitted to inspect logbook. Murphy v New York & P. R. S.S. Co. (1939, DC NY) 27 F Supp 878.
Accident report of superintendent covering deceased employee may be obtained by discovery. Stark v American
Dredging Co. (1943, DC Pa) 3 FRD 300.
Plaintiff was entitled to order for production of documents showing report of airplane company concerning accident,
though reports were required by board. Tansey v Transcontinental & Western Air, Inc. (1949, DC Dist Col) 97 F Supp
458.
In cause of action arising out of railroad grade crossing accident, defendant railroad may be required to produce its
reports of investigations of prior accidents at crossing in question. Sturdevant v Erie L. R. Co. (1970, WD Pa) 50 FRD
3, 14 FR Serv 2d 362.
Where administratrix of decedent who committed suicide by immolating himself in veterans hospital seeks discovery
and production of report of board of inquiry of Veterans Administration, report of director of hospital, and statements
obtained by members of board of inquiry from various named personnel, reports of board of inquiry and director should
not be available to plaintiff, but are confidential because it is essential to continued improvement in care and treatment
of patients; however, factual statements made by witnesses should be made available, and those portions of such
statements which are directed to suggestions or comments on future hospital procedure should be deleted. Gillman v
United States (1971, DC NY) 53 FRD 316, 15 FR Serv 2d 962.
42. --Contracts
In private antitrust action plaintiff would be ordered to turn over to movant true copy of purported covenant not to
sue with certification as to true consideration therefor, and movant would be granted leave to apply to court, in
accordance with this rule, for further discovery if true nature of settlement did not appear on face of agreement, clearly
and unambiguously, when read in light of certification as to consideration. Ayers v Pastime Amusement Co. (1965, DC
SC) 240 F Supp 811, 1965 CCH Trade Cases P 71507, 9 FR Serv 2d 34.13, Case 5.
Plaintiff's Rule 37(a) motion for order directing defendant to produce for inspection and copying documents
designated in plaintiff's second request to produce would be granted in action charging that defendant had broken its
agreement not to compete with plaintiff by engaging in sale of production fasteners or bulk fasteners to customers of
plaintiff and others, where information contained in various documents whose production was sought was relevant to
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USCS Fed Rules Civ Proc R 34
charges contained in part of complaint alleging breach of agreement not to compete, where plaintiff, moreover, agreed
that protective order should issue, and where there was no indication that further production would constitute
harassment or undue hardship sufficient to warrant denial of discovery which might be repetitious. Bethmar Industrial
Corp. v Century Hardware Corp. (1974, ED Wis) 64 FRD 57.
Personal representatives of 15 alien seamen who died or were lost at sea while engaged in performance of their
duties were entitled to production of defendant's books and records when plaintiffs have adequate basis to believe they
can prove applicability of American law as to validity of claimed releases after discovery, and dispositive nature of
contrary conclusion. Chen Chun Mei Chang v Zenith Navigation S.A. (1979, SD NY) 83 FRD 439.
Because corporation alleged that it was "forced," as result of company's business conduct, to incur costs in form of
supra-competitive prices for prunes from alternate sources needed to satisfy its customer contracts obligations, company
was entitled to learn factual basis for those contentions; discovery request was granted because corporation's motion to
compel responses to interrogatory and document request sought information regarding corporation's contracts, all of
which was reasonably calculated to provide factual basis for corporation's contention that as result of company's abuse
of its market power it incurred significant damages. Cliffstar Corp. v Sunsweet Growers, Inc. (2003, WD NY) 218 FRD
65.
43. --Defamatory statements
Plaintiff in action for conspiracy should be required, on defendants' motion for further particulars, to specify whether
alleged defamatory statements were oral or in writing, and, if latter, to attach copies of writings, since such discovery
may be had under this rule. Mulloney v Federal Reserve Bank (1938, DC Mass) 26 F Supp 148.
In libel action by William F. Buckley, Jr., against Gore Vidal, plaintiff was entitled to production and inspection of
all manuscripts and other material witten by defendant concerning plaintiff and his family during certain period of time,
plus all material that served as basis of defendant's assertions which constituted alleged libel. Buckley v Vidal (1970,
SD NY) 50 FRD 271, 14 FR Serv 2d 761.
44. --Employment
In employment discrimination case, plaintiff is entitled to production of EEOC personnel files, despite Privacy Act,
where such files relate to employees who plaintiff claims were hired or promoted in discriminatory preference over him;
test for determining whether material is discoverable is relevancy and Rule 34 no longer requires that party seeking
discovery show good cause for request. Weahkee v Norton (1980, CA10 NM) 621 F2d 1080, 22 BNA FEP Cas 1497,
23 CCH EPD P 30940, 29 FR Serv 2d 847.
District court did not err in denying sexual harassment plaintiff's claim for discovery of Navy's documents relating to
military women since plaintiff--civilian nurse--failed to demonstrate any relation between her employment and
documents concerning enlisted personnel in entirely different setting. Rennie v Dalton (1993, CA7 Ind) 3 F3d 1100, 62
BNA FEP Cas 1497, 62 CCH EPD P 42526, petition for certiorari filed (Nov 24, 1993).
In action for wrongful death resulting from accident occurring on board ship, defendant shipowner would be required
to produce crew list of ship, together with addresses of members of crew. Courteau v Interlake S.S. Co. (1941, DC
Mich) 1 FRD 525.
Discovery and inspection of list containing names of members of crew of defendant company would be allowed.
Jensen v Buckeye S.S. Co. (1942, DC NY) 2 FRD 411.
In action by Wage and Hour Administrator for injunction, plaintiff was entitled to benefit to be derived from
inspection and from photographing, if necessary, books, records, memoranda, cards, tickets, logs, and schedules in
possession of defendant and relating to wages, hours, and duties of defendant's employees; also of any receipts,
settlements, compromises, and releases executed by defendant's employees, or any of them, in connection with payment
of claims compromise, settlement of claims of defendant's employees arising under the statute; also for records, logs,
schedules, and reports kept or preserved by defendant for or pursuant to rules, regulations, and orders of the Interstate
Commerce Commission; but not to general search of records of the defendant company not known to be covered by
provisions of statute. Walling v R. L. McGinley Co. (1943, DC Tenn) 4 FRD 149, 7 CCH LC P 61600.
In action to enjoin violations of the Fair Labor Standards Act, disclosure of Wage and Hour Administrator's
statement by or reports concerning said employees would not be required; but records of names of defendant's
employees whom plaintiff claims defendant underpaid would be ordered disclosed. Walling v Richmond Screw Anchor
Co. (1943, DC NY) 4 FRD 265.
In action for death of coal passer on merchant steam vessel where it was alleged that decedent's death was caused by
negligence on part of defendant, crew list and log of steamer called for by plaintiff was sufficiently identified and their
materiality was apparent. Condry v Buckeye S.S. Co. (1945, DC Pa) 4 FRD 310.
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USCS Fed Rules Civ Proc R 34
Where plaintiffs through counsel filed request for production of documents pursuant to Rule 34 to allow plaintiffs'
inspection and copying, specifically, of defendant's computerized master payroll file, and defendant did not comply with
request, court would grant plaintiffs' motion asking court to enter order pursuant to Rule 37 compelling production of
these documents, after considering memoranda supplied by counsel for both parties in support of their respective
positions on issue. Adams v Dan River Mills, Inc. (1972, WD Va) 54 FRD 220, 4 BNA FEP Cas 523, 4 CCH EPD P
7754, 15 FR Serv 2d 1275.
Plaintiff is entitled to compelled production of personnel files of defendant company's supervisory personnel who
have directly supervised members of plaintiff class where those files might reasonably be expected to yield probative
evidence of plaintiff's claims of application of unequal standards to women in company's classification and discharge
policies. EEOC v Avco New Idea Div. (1978, ND Ohio) 26 FR Serv 2d 736.
Plaintiffs, in class action seeking average minimum wage, were granted request for production of documents, which
required defendants to permit plaintiffs to inspect and copy documents retained by defendants, of itemized individual
wage statements, embodying number of hours worked, wages paid, and other deductions, because such requests did not
create undue burden upon defendants, and because plaintiffs listed specific items and requested documents which
spanned period of less than one month. Riojas v Seal Produce, Inc. (1979, SD Tex) 82 FRD 613, 28 FR Serv 2d 101.
Court will deny plaintiff's request, in employment discrimination action, for production of copies of all claims filed
against employer with EEOC or specified District Courts alleging discriminatory treatment based on age or race, since it
would be invasion of other employees' privacy to make these complaints public. Prouty v National R. Passenger Corp.
(1983, DC Dist Col) 99 FRD 551.
Parent company and age discrimination plaintiff's direct employer were subject to discovery; claim that responding
would require parent company to search thousands of files and interview executives for reasons why other managers
separated from company was issue that could be raised in response to particular document request and resolvable by
magistrate judge if counsel could not resolve it. Chambers v Capital Cities/ABC (1994, SD NY) 154 FRD 63.
45. --Financial
In private treble damage action under Clayton Act and Sherman Act in which plaintiffs allege that two defendants
conspired to fix price of their products at unreasonably high levels, plaintiffs are entitled to discovery procedure to
discover defendants' profit margins. Estate of Le Baron v Rohm & Haas Co. (1971, CA9 Cal) 441 F2d 575, 1971 CCH
Trade Cases P 73493, later app (CA9 Cal) 506 F2d 1261, 1974-2 CCH Trade Cases P 75342.
Party claiming unpaid balance on account may be ordered to produce books containing account or furnish true copy
thereof. Monarch Liquor Corp. v Schenley Distillers Corp. (1941, DC NY) 2 FRD 51.
Plaintiff suing on assigned claim is entitled to examine records of debtor relating to assigned assets without
previously establishing his rights under assignment. United States v National City Bank (1941, DC NY) 40 F Supp 99.
Plaintiff's desire that defendant produce classified profit and loss statements for use in preparation of evidence on
issue of damage is not sufficient cause to require production under Rule 34. Herman Schwabe, Inc. v United Shoe
Machinery Corp. (1960, ED NY) 26 FRD 228, 3 FR Serv 2d 597.
Plaintiff, minority stockholder in defendant corporation which sought merger, was entitled to inspect certain
corporate records of defendants in attempt to determine fair market value of shares where there were no open market
quotations to determine such value. Butze v T. J. W. Corp. (1962, MD Pa) 29 FRD 474, 5 FR Serv 2d 584.
In condemnation action defendant was not entitled to production of government reports concerning value of
property. United States v 4.724 Acres of Land (1962, ED La) 31 FRD 290, 6 FR Serv 2d 675.
Items of defendant's motion for production of documents calling for financial records from plaintiff supporting
latter's claim for damages for expenses incurred defending patent interference and loss of royalties due to defendant's
activities would be deferred until the issue of liability was resolved, court having the discretionary power to separate
issues of liability and amount of damages. McCullough Tool Co. v Pan Geo Atlas Corp. (1966, SD Tex) 40 FRD 490,
151 USPQ 456, 10 FR Serv 2d 982.
In action by shipping line against maritime union seeking damages for alleged unlawful secondary boycott, plaintiff
is required to produce documents containing names of shippers and consignees of merchandise whose business plaintiff
claims to have lost; 46 USCS § 819 does not create privilege in traditional sense because it permits disclosure in
response to court order regardless of lack of consent of shipper, and it does not confer privilege within meaning of Rules
26 and 34. Delta S.S. Lines, Inc. v National Maritime Union (1967, ED La) 265 F Supp 654, 10 FR Serv 2d 1007.
Where plaintiff requested production of checks, bank statements, and deposit slips and defendants in action refused
to furnish them, court would order compliance in accordance with plaintiff's motion under Rule 37(a), but would point
out that plaintiff was not entitled to carte blanche order for production of all records of defendants for past 15 years as
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USCS Fed Rules Civ Proc R 34
that would be intolerable burden and abuse of court's process. Federal Sav. & Loan Ins. Corp. v Krueger (1972, ND
Ill) 55 FRD 512, 72-2 USTC P 9630, 16 FR Serv 2d 441, 30 AFTR 2d 72-5535.
Considering Federal Rules of Civil Procedure are to provide broadest possible discovery, in action to redress alleged
violation of federal security laws and regulations, where plaintiffs failed to demonstrate that production of requested
documents would be annoying, burdensome or completely irrelevant to thrust of litigation, stockbroker and
dealer-defendants are entitled to discovery of plaintiffs' documents reflecting plaintiffs' financial status to test accuracy,
veracity and extent of financial information furnished defendants as requested during time of financial dealings. Lavin
v A. G. Becker & Co. (1973, ND Ill) 60 FRD 684, CCH Fed Secur L Rep P 94446.
In securities action alleging that quarterly report of business trust was false in that balance sheet reflected substantial
values for a number of real estate investment properties that were virtually worthless and produced negative cash flow,
requests under Rule 34 to produce all documents and statements relating to positive or negative cash flow, equity
interest of defendant, and valuation of each such property were not overly broad or irrelevant. Clairdale Enterprises,
Inc. v C. I. Realty Investors (1976, SD NY) 423 F Supp 257, 23 FR Serv 2d 699.
While discovery is generally two-way street, where there is clearly no correlation between defendant's balance
sheets, sales figures, profit and loss statements and those of plaintiff, whether plaintiff should be required to produce
such financial information is separate question. Re Folding Carton Antitrust Litigation (1977, ND Ill) 76 FRD 420,
1977-2 CCH Trade Cases P 61743, 24 FR Serv 2d 416.
Plaintiff seeking certified statement of net worth under Rule 33 must proceed in accordance with Rule 34; net worth
is discoverable by plaintiff where punitive damages are sought. Lackawanna Refuse Removal, Inc. v Proctor &
Gamble Paper Products Co. (1978, MD Pa) 26 FR Serv 2d 375.
Discovery investigation should be limited to bank records which were made during time with which suit is concerned
and should be limited to records which could reasonably be expected to reflect suspected activity. Rorer International
Cosmetics, Ltd. v Halpern (1979, ED Pa) 85 FRD 43, 28 FR Serv 2d 837.
Official information privilege, asserted by Office of Comptroller of Currency to prevent disclosure of examination
reports concerning collapse of national bank, will be denied despite government contentions that material consists of
opinions and recommendations made by examiners and interest of government in disclosure outweighs interest of
litigants and public in disclosure; however, summaries and analyses of examination reports are covered by official
information privilege because interest of litigants and public in revelation do not outweigh interest of government in
nondisclosure, summaries and analyses contain no new facts, and any information found therein is in examination
reports themselves; therefore, denying parties access to summaries and analyses would not significantly deprive them of
relevant evidence, as such evidence is otherwise available. Re Franklin Nat. Bank Secur. Litigation (1979, ED NY) 478
F Supp 577, 4 Fed Rules Evid Serv 1053, 28 FR Serv 2d 350.
Reports made by federal examiners to Federal Home Loan Bank Board as to results of periodic examination of
financial soundness of, and legal compliance by, all member institutions of FSLIC, copies of which are required to be
given to each institution, are subject to production for discovery purposes; permission of Board must be obtained prior
to release of such information and information released is subject to restrictions that will assure that information
disclosed will not be exposed to persons not directly involved in proceedings. Weck v Cross (1980, ND Ill) 88 FRD
325.
46. --Insurance
Request was too broad where plaintiffs, in action for wrongful death, served notice to examine liability insurance
carrier asking for company's entire compensation file relative to deceased, including copies of transcripts of hearings
held pursuant to workmen's compensation law, respecting accident, and in addition calling for similar extensive reports,
statements, and documents in insurance company's files, specified in 7 categories. Sientki v Haffner (1956, DC NY)
145 F Supp 435.
Plaintiff was entitled to production of claims files of defendant though papers in files concerned matters subsequent
to commencement of action. Dorn v Balfour, Guthrie & Co. (1957, DC Cal) 155 F Supp 203.
47. --Law enforcement
Request, in civil rights action, that city produce and permit plaintiff to inspect and copy documents of city's police
department which related in any way to arrest, detention, and booking of plaintiff, or to his complaint against city's
police department, would be denied as being too broad. Gaison v Scott (1973, DC Hawaii) 59 FRD 347, 17 FR Serv 2d
1328.
48. --Medical
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Production of government hospital records relating to plaintiff in action on war risk insurance contract may be
directed and plaintiff may be granted permission to copy them but not to remove them for photographing. Galanos v
United States (1939, DC Mass) 27 F Supp 298.
In personal injury action if there are any medical consultations or examinations for treatment, defendant is entitled to
copy of reports; if there are any medical examinations solely for purpose of preparation for trial, defendant is entitled to
statement of any history given to doctor, but beyond that, defendant is free to make its own examination of plaintiff and
has no cause to be furnished with findings or conclusions of plaintiff's experts. Leszynski v Russ (1961, DC Md) 29
FRD 10, 5 FR Serv 2d 570.
Motion by defendant in legal malpractice suit who had been plaintiff's former lawyer in custody suit in which client's
mental condition had been directly in issue, for order requiring plaintiff to produce for inspection and copying all letters,
reports, and papers relating to plaintiff's psychiatric examination by named doctor to named hospital, and of all letters,
reports, and papers relating to plaintiff's mental condition made out by that and another hospital while plaintiff was
patient in either or both institutions, would be granted. Goldenberg v Wolfe (1968, DC Conn) 44 FRD 33, 11 FR Serv
2d 944.
Personal representative of individual who committed suicide after being found not guilty of criminal charges by
reason of insanity and following commitment to hospital, is not entitled to discovery of minutes of medical utilization
review committee which was called to review decedent's case after his death, or report to superintendent of hospital
containing review of decedent's case as well as discussion of possible self-improvement by hospital, notwithstanding
plaintiff's claim that decedent was in prison and not hospital. Mewborn v Heckler (1984, DC Dist Col) 101 FRD 691,
39 FR Serv 2d 257.
District Court properly denies motion to compel plaintiff to provide executed medical authorizations confirming that
he has fully waived physician-patient privilege by bringing medical malpractice suit, where requested documents would
authorize all physicians who have examined, treated, or consulted with plaintiff not only to furnish copies of all written
records but to make themselves available for oral interviews by defendants' counsel without plaintiff's counsel being
present; regardless of authorizations, physicians would have discretion to decline to be interviewed or to give any oral
information except by formal deposition, and there are cogent reasons for formal depositions of physicians who have
treated plaintiff or have been consulted in course of treatment. Alston v Greater Southeast Community Hospital (1985,
DC Dist Col) 107 FRD 35, 2 FR Serv 3d 1252.
Subpoena duces tecum for physician employed by VA would not be quashed in former employee's handicap
discrimination action against VA in which he sought physician as expert witness; VA's ethics regulation requiring
agency authorization of employees to serve as expert witnesses could not curb federal district court's power to compel
discovery. Dean v Veterans Admin., Regional Office (1993, ND Ohio) 151 FRD 83, 2 ADD 1066, 2 AD Cas 1290, 63
CCH EPD P 42710, 27 FR Serv 3d 19.
In action by insured against insurer for insurer's alleged failure to pay overdue medical bills, insurer is entitled to
order compelling insured to provide insurer with signed authorization enabling insurer to obtain copy of insured's Social
Security Administration disability file, because (1) file is relevant, (2) file is within insured's possession and control, and
(3) insured failed to show how file is privileged, irrelevant, or embarrassing, particularly since insured placed his
medical condition at issue by filing instant suit. Grove v Aetna Casualty & Sur. Co. (1993, WD Pa) 855 F Supp 113.
EEOC placed employee's mental condition in controversy by arguing that sexually hostile workplace environment,
under Title VII of Civil Rights Act of 1964, 42 USCS § 2000e et seq., resulted in employee suffering damages for
emotional pain and suffering; therefore, employee's medical records were necessary under Fed. R. Civ. P. 34 for doctor
performing mental examination under Fed. R. Civ. P. 35. EEOC v Grief Bros. Corp. (2003, WD NY) 218 FRD 59.
In class action by plaintiff health care consumers for violation of federal Medicaid Act, magistrate granted motions
to compel production of documents having private information regarding class members; under Mass. Gen. Laws ch.
66A, § 2(k), part of Massachusetts Fair Information Practices Act, Mass. Gen. Laws ch. 66A, § 1 et seq., balance of
interests tipped in favor of disclosure to class counsel, particularly given fact that consumers' counsel were deemed
capable of representing class of individuals whose personal information was at issue. Rosie D. v Romney (2003, DC
Mass) 256 F Supp 2d 115, 55 FR Serv 3d 883.
49. --Parties' statements
Where, in personal injury action plaintiff's motion for discovery and production of document and for permission to
copy same was granted and order required production of and permission to make copies of any statement or statements
concerning accident given by plaintiff to any claim agent or other employee of defendant, whether it be statement
signed by plaintiff or one taken stenographically in question and answer form and not signed by plaintiff, or both, most
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USCS Fed Rules Civ Proc R 34
that could be said against such order was that it was of doubtful propriety; hence, court of appeals would not issue writ
of prohibition against it. Terminal R. Asso. v Moore (1944, CA8 Mo) 145 F2d 128.
Trial court acted within its discretion in granting plaintiff's motion that railroad produce written record of
interrogation of him by railroad's claim agent shortly after plaintiff was injured, conducted in his home while he was in
bed in consequence of his injury and while not represented by counsel, which motion was made some fifteen months
thereafter as time for trial approached. New York C. R. Co. v Carr (1957, CA4 W Va) 251 F2d 433.
Motion would be granted to inspect and copy plaintiff's own statement and that of witness, taken and delivered to
defendant by plaintiff's agent. Leach v Greif Bros. Cooperage Corp. (1942, DC Miss) 2 FRD 444.
Plaintiff was entitled to pre-trial disclosure of statement taken by defendant's attorney from plaintiff after accident
while plaintiff was hospitalized and unrepresented by counsel, also photographs and statements of witnesses obtained in
the course of post-accident investigation. Parla v Matson Navigation Co. (1961, SD NY) 28 FRD 348, 4 FR Serv 2d
489.
Plaintiff was entitled to statement given to defendant's representative by plaintiff at time when he was still in hospital
and as yet unrepresented by counsel, notwithstanding fact that there was no allegation or insinuation that plaintiff was in
any way misled or taken advantage of by defendant's representative. Pasterak v Lehigh Valley R. Co. (1961, ED Pa)
28 FRD 383, 4 FR Serv 2d 622.
In personal injury action in which plaintiff gave unsigned statement to defendant prior to time plaintiff employed
counsel, court would order copy of statement to be produced for inspection and copying by plaintiff, such production to
occur after taking of plaintiff's oral deposition by defendant. McCoy v General Motors Corp. (1963, WD Pa) 33 FRD
354, 7 FR Serv 2d 712.
Plaintiff's motion for production of his own statements, taken by defendant's agents within few weeks of accident in
question, would be granted; amended Rule 26(b)(3) effectively excludes from work-product protection party's own
statement taken by another party or his agents. Dingler v Halcyon Lijn N. V. (1970, ED Pa) 50 FRD 211, 14 FR Serv
2d 594.
Since one purpose behind production of deposition transcripts of defendant's employees taken in other cases is to
avoid duplicative efforts, order granting motion to compel production of such documents is properly conditioned on
plaintiff's agreement that when it deposes individuals for whom transcripts have been produced it will not cover matters
on which testimony has previously been taken. Philadelphia Nat. Bank v Dow Chemical Co. (1984, ED Pa) 106 FRD
342, 40 FR Serv 2d 1307.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection. 73 ALR2d 12.
50. --Patents
District Court has power to require interference party to produce notebook incident to incompleted
cross-examination of witness in pending patent office interference. Gladrow v Weisz (1965, CA5 La) 354 F2d 464, 148
USPQ 110 (disagreed with by Shattuck v Hoegl (CA2 NY) 523 F2d 509, 187 USPQ 1, 20 FR Serv 2d 714 (disagreed
with by Brown v Braddick (CA5 Tex) 595 F2d 961, 203 USPQ 95)).
Rule 34 vests authority in district court to require production of documents for use in patent office interference, and
office's refusal to set specific testimony period circumscribed by precise dates does not afford basis for court to abstain
from exercise of its jurisdiction since office has preserved to party right to take testimony which might be consequent
from district court ancillary proceedings, and stands ready and willing to fix special testimony time should party's
request for documentary production be diligently pursued and fruitful. Natta v Zletz (1967, CA7 Ill) 379 F2d 615, 153
USPQ 768, 11 FR Serv 2d 955 (disagreed with by Shattuck v Hoegl (CA2 NY) 523 F2d 509, 187 USPQ 1, 20 FR Serv
2d 714 (disagreed with by Brown v Braddick (CA5 Tex) 595 F2d 961, 203 USPQ 95)).
In action for damages under Invention Secrecy Act for use of plaintiff's invention, Court used proper discretion in
denying in camera discovery since no favorable results could be communicated to plaintiff who no longer held
clearances, and plaintiff did not concede to be unable to proceed without documents in question. Clift v United States
(1979, CA2 Conn) 597 F2d 826, 203 USPQ 561, 27 FR Serv 2d 155.
In suit to recover for patent infringement this rule should not be applied to permit plaintiff to obtain disclosure of all
equipment manufactured by defendant; such inquiry is too broad and sweeping. Pierce v Submarine Signal Co. (1939,
DC Mass) 25 F Supp 862, 40 USPQ 221.
Where, in trademark infringement suit, test records and reports would come close to deciding case itself, requests
would be denied. Hercules Powder Co. v Rohm & Haas Co. (1944, DC Del) 4 FRD 452, 66 USPQ 138.
In action for patent infringement, unfair competition, false marking in advertising, and antitrust violation, on motion
of plaintiff for discovery, defendant would be required to produce and permit plaintiff to inspect and copy defendants'
patent application filed in United States patent office, and to produce and permit plaintiff to inspect and copy cost
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USCS Fed Rules Civ Proc R 34
comparison figures of defendants. Britt Tech Corp. v L & A Products, Inc. (1963, DC Minn) 223 F Supp 126, 139
USPQ 334, 7 FR Serv 2d 729.
In declaratory judgment action brought to ascertain validity of patent, plaintiff is required to produce its pending
patent application because disclosure of prior art relied on by plaintiff in that application could aid court and parties in
determining merits of claims. John Wood Co. v Metal Coating Co. (1966, ND Ill) 10 FR Serv 2d 932.
Where plaintiff has good reason to believe that competitior is using its patented process and no other way exists for
inspection except clandestine means, court will grant inspection and production of documents for plaintiffs. Dow
Chemical Co. v Monsanto Co. (1966, DC Ohio) 256 F Supp 315, 151 USPQ 172, 10 FR Serv 2d 979.
In action for declaratory judgment of patent invalidity, defendant must produce all documents evidencing
consideration by defendant of devices made or offered for sale by plaintiff, but defendant need not produce such
documents relating to devices made or offered for sale by third parties, nor for copies of all defendant's patents since
patents are public. Camco, Inc. v Baker Oil Tools, Inc. (1968, SD Tex) 45 FRD 384, 160 USPQ 541, 12 FR Serv 2d
845.
District Court can require production of documents in patent interference contests. Babcock & Wilcox Co. v
Combustion Engineering, Inc. (1968, DC Conn) 314 F Supp 235, 159 USPQ 762, affd (CA2 Conn) 430 F2d 1177, 167
USPQ 65 (disagreed with by Brown v Braddick (CA5 Tex) 595 F2d 961, 203 USPQ 95).
In patent infringement action, plaintiff's motion to compel answers to interrogatories and production of documents
will be granted but defendant need not disclose future customers, potential market areas, pending or future patent
applications, or matter covered by attorney-client privilege, as to which matters court may suggest properly-worded
protective order be sought by defendants. Roto-Finish Co. v Ultramatic Equipment Co. (1973, ND Ill) 60 FRD 571,
181 USPQ 86, 17 FR Serv 2d 1396.
In declaratory judgment action affecting validity of defendant's patents, plaintiff's motion to compel production by
defendant of certain documents will be denied on basis of attorney-client privilege. Eutectic Corp. v Metco, Inc. (1973,
ED NY) 61 FRD 35, 180 USPQ 570, 18 FR Serv 2d 556.
In patent infringement action, plaintiff's motion to compel defendant to produce documents will be denied where
documents being sought consist of letters of defendant's attorney concerning his opinions on patent's application, scope
and validity as well as background material, all of which are protected either by attorney-client privilege or by immunity
of attorney's work product. Sylgab Steel & Wire Corp. v Imoco-Gateway Corp. (1974, ND Ill) 62 FRD 454, 182 USPQ
187, 18 FR Serv 2d 812, affd without op (CA7 Ill) 534 F2d 330.
In patent infringement suit, company's waiver of attorney-client privilege did not encompass both attorney-client
privilege and work product protection; therefore, because individual and corporation had already received
attorney-client communications associated with patent in suit, they were not entitled to documents reflecting work
product of company's counsel. Rhodia Chimie v PPG Indus. (2003, DC Del) 218 FRD 416, patent interpreted (2003,
DC Del) 2003 US Dist LEXIS 18695.
In patent infringement action, because one page exchange of e-mails in which company's insiders, attorneys, and
business executives, discussed corporation's technology and contrasted it with results achieved when silica was
produced as granules, or "rocks," may have had relevance in case and any privilege with respect to it had been waived,
company's request to have document returned was denied. Rhodia Chimie v PPG Indus. (2003, DC Del) 218 FRD 416,
patent interpreted (2003, DC Del) 2003 US Dist LEXIS 18695.
51. --Prison
Where prisoner requested production of all records relating to his custody at penitentiary and state hospital, as well
as production of court records in a number of cases, defendants' objection on grounds of relevance, admissibility, and
reasonableness would be denied, court noting that court files were matter of public record which might be inspected and
copied in appropriate courthouses, and that inspection of institutional documents should be conducted at institutions,
defendants to make such documents available for inspection and copying. Ferenc v Moss (1973, DC Pa) 61 FRD 1.
Pro se prisoner, suing for violation of his constitutional rights in connection with prison officials' placing him in
administrative segregation, is entitled to production of documents relating to law library privileges since production
request is relevant to claim of deprivation of equal protection and denial of access to law library facilities. Clark v
Michigan Dept. of Corrections (1982, ED Mich) 555 F Supp 512.
Inmate was entitled to copy of his prison medical records at state's expense pursuant to state regulation which
allowed for free copying of legal research, which should include materials being produced pursuant to legitimate
discovery requests. DeMarco v Ginn (1990, DC NJ) 137 FRD 214.
52. --Product and consumer reports
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USCS Fed Rules Civ Proc R 34
In action for wrongful death resulting from accident involving machine, defendant would be ordered to produce for
inspection records showing condition of machine and repairs which were made to it subsequent to accident. Mackerer
v New York C. R. Co. (1940, DC NY) 1 FRD 408.
In private antitrust action where issue is whether defendant's leasing policy injured plaintiff and where defendant
contends plaintiff could have procured comparable machines from other manufacturers, and, therefore was not
compelled to lease from defendant, plaintiff's motion to compel production of report prepared by defendant evaluating
machines available from other manufacturers is granted because defendant's evaluation of machinery is relevant and
material. Hanover Shoe, Inc. v United Shoe Machinery Corp. (1962, MD Pa) 207 F Supp 407, 6 FR Serv 2d 678, 7 FR
Serv 2d 678 (disapproved on other grounds by United States v Leggett & Platt, Inc. (CA6 Ohio) 542 F2d 655, 1976-2
CCH Trade Cases P 61124, 22 FR Serv 2d 493, cert den 430 US 945, 51 L Ed 2d 792, 97 S Ct 1579).
Report of testing laboratory to attorney for plaintiff in products liability suit involving defendant's shortening alleged
to have either exploded, burst into flame, or in some other manner sprayed out of container, thereby burning plaintiff
was subject to inspection by defendant. Franks v National Dairy Products Corp. (1966, WD Tex) 41 FRD 234, 10 FR
Serv 2d 985.
Plaintiff in action for damages for injuries alleged to have been sustained by him by use of product manufactured by
defendant was entitled to be informed by complaints received by defendant from other users of product for period of
three years prior to plaintiff's accident and to current time, since prior complaints could conceivably aid plaintiff to
establish that defendant had knowledge of dangerous nature of product and possibly lead to discovery of other evidence
relating to product's effect on its users. Bowen v Whitehall Laboratories, Inc. (1966, SD NY) 41 FRD 359, 10 FR Serv
2d 962.
Reports of experts hired by plaintiff of condition of aluminum pipe sold by defendant when excavated and replaced
are discoverable where defendant or his experts were not allowed to be present during excavation and conditions
changed since that time. Sanford Constr. Co. v Kaiser Aluminum & Chemical Sales, Inc. (1968, ED Ky) 45 FRD 465,
12 FR Serv 2d 877.
In products liability action arising out of accident involving truck manufactured by defendant where plaintiffs filed
motion to compel discovery of information concerning engine mount recall campaign conducted by defendant desired
discovery would not be relevant or reasonably calculated to lead to discovery of admissible evidence since alleged
defective truck was not of model involved in recall campaign. Uitts v General Motors Corp. (1974, DC Pa) 62 FRD
560.
In suit and countersuit between manufacturers of athlete's foot remedy, material sought by first manufacturer relating
to promotional cost for second manufacturer's remedy is relevant to subject matter of litigation and is discoverable;
material sought by second manufacturer concerning comparisons of, claims for, and efficacy of athlete's foot products
other than those of 2 manufacturers is also discoverable; test results in which chemical formulation marketed as remedy
of first manufacturer is discoverable, but second manufacturer is not entitled to discover test results of products other
than athlete's foot remedy of first manufacturer; first manufacturer is not entitled to require production of documents by
corporation related to second manufacturer. Pennwalt Corp. v Plough, Inc. (1979, DC Del) 85 FRD 257, 208 USPQ
561, 29 FR Serv 2d 1421.
In products liability action, trial court properly denies as unnecessary plaintiff's motion to compel production of
copies of all customer lists and complaints with respect to machine in question and its prototypes and successor
machines, where court has granted plaintiff's motion to compel answer to interrogatory which requests listing of (1)
total number of machines sold, (2) names and addresses of customers who purchased this type of machine, (3) extensive
information regarding all complaints received by defendant as to machine which injured plaintiff, and (4) extensive
information regarding all complaints received by company as to any prototype or successor machines. Gidlewski v
Bettcher Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
53. --Public records
Motion by plaintiff's in private civil antitrust actions for production of copies of certain bills of particulars allegedly
furnished to defendants in course of related criminal proceedings in federal district court would be granted, since bills of
particulars were not transcript of proceedings before grand jury, or related thereto in any secrecy-requiring sense.
Philadelphia Electric Co. v Anaconda American Brass Co. (1967, ED Pa) 41 FRD 518, 11 FR Serv 2d 881.
Defendants' objection to requests for United States Department of Agriculture soil conservation maps and
engineering reports for area involved in suit, that were available to plaintiffs through Department of Agriculture and
should be sought from agencies of that Department, was well taken, and motion to produce would be denied subject to
later renewal if plaintiffs were unable to acquire information sought. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR
Serv 2d 1144.
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USCS Fed Rules Civ Proc R 34
Discovery need not be required of documents of public record which are equally accessible to all parties. Securities
& Exchange Com. v Samuel H. Sloan & Co. (1973, SD NY) 369 F Supp 994, 17 FR Serv 2d 882.
54. --Settlements
Disclosure of terms of settlement between coplaintiff and defendant will not be permitted where potential prejudice
to settling parties outweighs nonsettling plaintiff's need for disclosure; such discovery may be allowed where settling
parties make motions under Rules 15(a) and 21. Groton v Connecticut Light & Power Co. (1979, DC Conn) 84 FRD
420, 1980-1 CCH Trade Cases P 63233, 28 FR Serv 2d 1192, affd without op (CA2 Conn) 802 F2d 443.
55. --Stock and stockholders
Court properly imposed sanctions against appellant for actions in course of discovery that were disruptive of orderly
course of litigation, insulting to dignity of court, and, most importantly, utterly lacking in civility. Pan Am Grain Mfg.
Co. v P.R. Ports Auth. (2002, CA1 Puerto Rico) 295 F3d 108.
Securities and Exchange Commission investigators' handwritten notes which had been used to prepare investor's
affidavits would not be required to be produced under this rule where they might have served to confuse, rather than
clarify. SEC v R. A. Holman & Co. (1963, SD NY) 34 FRD 139, 8 FR Serv 2d 34.13, Case 2.
Stockholder's list, sought by plaintiff to enable him to contact additional stockholders so that obtaining necessary
security under state law could be avoided, did not constitute or contain evidence subject to discovery under this section.
Neuwirth v Merin (1967, SD NY) 267 F Supp 333, 11 FR Serv 2d 913.
In action arising out of alleged misrepresentation made to plaintiff by defendant, registered representative of
brokerage firm, concerning advisability of purchasing certain stock, plaintiff's motion for order directing defendant to
produce for inspection corporate records showing stock transactions and names of stockholders and their current
holdings was properly granted over defendant's objections that information was irrelevant to issues in this action and
that information was confidential. Reed v Smith, Barney & Co. (1970, SD NY) 50 FRD 128, CCH Fed Secur L Rep P
92829, 14 FR Serv 2d 507.
Where in divorce action husband was requested to produce "corporate books, including but not limited to stock
ledgers and financial records, including but not limited to, the financial statements" of a particular company for years
1960 to date of request, wife's demand should be restricted to, at most, such records of corporation which bore on extent
and value of husband's stockholding and on outstanding obligations, if any, between husband and corporation.
Paiewonsky v Paiewonsky (1970, DC VI) 50 FRD 379.
In suit arising out of attempted takeover of life insurance company by another corporation, defendant would be
compelled to comply with plaintiffs' request under Rule 34 to discover names and addresses of about 150 of 3500 of life
insurance company's stockholders with whom defendants or their agents had oral or written contact during specified
period. Lincoln American Corp. v Bryden (1973, DC Kan) 375 F Supp 109, 19 FR Serv 2d 150.
56. --Tax
In action against collector of internal revenue for refund of taxes, in which contention is that part of inventory was
overvalued and part undervalued, defendant's motion for inspection of plaintiff's records relating to entire inventory
should be granted. Pacific Mills v Nichols (1939, DC Mass) 31 F Supp 43, 24 AFTR 352.
Copies of tax returns are not privileged and, therefore, are subject to production. Connecticut Importing Co. v
Continental Distilling Corp. (1940, DC Conn) 1 FRD 190.
Where taxpayer has not retained copies of income tax returns, he may be ordered to inspect returns as filed and
obtain copies thereof. Reeves v Pennsylvania R. Co. (1948, DC Del) 80 F Supp 107.
Income tax returns are subject to production and inspection under Rule 34 and are not protected by privilege. Trans
World Airlines, Inc. v Hughes (1961, SD NY) 29 FRD 523, 5 FR Serv 2d 494.
In action for personal injuries where plaintiff claimed loss of wages and earnings, past and future, as damages,
defendant was entitled to production of that portion of plaintiff's income tax returns relating to wages and earnings.
Taylor v Atchison, T. & S. F. R. Co. (1962, WD Mo) 33 FRD 283, 7 FR Serv 2d 651, 7 FR Serv 2d 673.
Generally, advice, opinions, or summaries of internal revenue service is foreign to subject matter of taxpayer's action
for income tax refund but, if relevant, discovery may be granted, since United States as litigant does not have greater
right to secrecy than private litigant. Conway Import Co. v United States (1966, ED NY) 40 FRD 5, 10 FR Serv 2d 995.
Production of copies of all private letter rulings of internal revenue service interpreting specified and pertinent
sections of the internal revenue code would be overbroad and insufficiently specific. Southwest Grease & Oil Co. v
United States (1968, DC Kan) 44 FRD 456, 12 FR Serv 2d 823.
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USCS Fed Rules Civ Proc R 34
Where defendant requests production of plaintiff's income tax returns to clarify plaintiff's motive in rescinding
contract for purchase of airplane which request plaintiff denies on basis of relevancy, and where, thereafter, defendant
seeks order compelling such discovery under Rule 37, defendant's motion will be denied, not on basis that tax returns
are irrelevant, which they are not, in action involving loss or impairment of income, but rather on basis that tax returns
always have certain confidentiality not to be routinely invaded especially when as here defendants have been provided
through discovery sufficient other evidence of plaintiff's financial motives in seeking rescission. Troglione v McIntyre
Aviation, Inc. (1973, WD Pa) 60 FRD 511, 18 FR Serv 2d 317.
Plaintiff in suit for refund of federal income taxes is not entitled to discovery of matters relating to tax treatment of
other nonresident aliens where matters are not relevant to issues in suit and where discovery would not lead to relevant
evidence. Sutton v United States (1978, ED Tenn) 78-2 USTC P 9485, 26 FR Serv 2d 348, 42 AFTR 2d 78-5214.
Plaintiffs who seek damages or rescission of their investments due to defendants' alleged violations of federal
securities laws, fiduciary obligations to plaintiffs, and offer of limited partnership interests and management of
partnership, are required to produce their income tax returns for years in question where defendants claim that plaintiffs
invested in partnership as tax shelter since tax returns are relevant to issues of reliance, damages, and sophistication of
investors; plaintiffs have placed their income in issue by claiming that they have suffered loss due to defendants' actions
and it would be inequitable to prevent defendants from obtaining evidence necessary to disprove this claim. Smith v
Bader (1979, SD NY) 83 FRD 437, CCH Fed Secur L Rep P 97123, 28 FR Serv 2d 340.
Automobile manufacturer will not be compelled to produce its income tax returns even though such returns are
relevant to subject matter of litigation where manufacturer proffers several sources other than tax returns from which
plaintiff automobile distributor can obtain information sought. Eastern Auto Distributors, Inc. v Peugeot Motors of
America, Inc. (1982, ED Va) 96 FRD 147, 1982-83 CCH Trade Cases P 65207.
Defendant employer in Title VII (42 USCS § § 2000e et seq.) employment discrimination case was entitled to
copies of state and federal income tax returns that had been filed by plaintiff for particular years, where plaintiff was
seeking compensatory damages and lost income, because discovery had uncovered report of psychological consultation
that indicated that plaintiff had expressed feelings of depression due to his inability to work and financial problems; as
such, documents sought by defendant were relevant to claims for relief made by plaintiff. Dunlap v Midcoast-Little
Rock (1995, ED Ark) 166 FRD 29, 67 CCH EPD P 43886.
Tax protestor's objections to Government's request for production of documents were overruled as to production of
records that tax protestor was required to keep as income tax return preparer because required records exception to Fifth
Amendment privilege against self-incrimination applied to documents which income tax return preparers, such as tax
protestor were required to keep under 26 USCS § 6107; therefore, production of tax returns and list of taxpayer clients
was mandated by lawful regulatory framework, and tax protestor had to provide access to those documents under that
regulatory framework. United States v Bell (2003, MD Pa) 217 FRD 335, 92 AFTR 2d 5841.
Tax protestor's objection to Government's request for production of documents was overruled as to request for
production of videotapes, audiotapes, records, and letters regarding tax protestor's tax avoidance assistance through his
website because tax protestor's act of producing such documents was insufficiently testimonial, and because existence
and location of those documents was foregone conclusion and tax protestor added little or nothing to sum total of
government's information by conceding that he had possession of those materials, tax protestor's Fifth Amendment
privilege would not have been violated by production of those materials. United States v Bell (2003, MD Pa) 217 FRD
335, 92 AFTR 2d 5841.
57. --Witnesses' statements
Rule 34 contemplates order to produce directed to "party," and in strictness petitioner's only recourse to obtain
written statements of witnesses obtained by defendants' attorney was to take attorney's deposition under Rule 26 and
"attempt to force" him to produce materials by use of subpoena duces tecum in accordance with Rule 45. Hickman v
Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395.
Motion demanding all written statements and oral statements which had been reduced to writing made by driver of
tractor-trailer to employer concerning collision with plaintiff's automobile on specified date was sufficient. Goosman v
A. Duie Pyle, Inc. (1963, CA4 Md) 320 F2d 45, 7 FR Serv 2d 694, later app (CA4 Md) 336 F2d 151.
Prehearing discovery would be allowed of statements in possession of NLRB made by persons whom Board
intended to use as witnesses at contempt hearing against company, as against Board's contention that prehearing
discovery would give employer more time to confront informing employee. NLRB v Schill Steel Products, Inc. (1969,
CA5) 408 F2d 803, 70 BNA LRRM 2778, 70 BNA LRRM 3280, 59 CCH LC P 13298, 59 CCH LC P 13382, 4 ALR Fed
483.
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USCS Fed Rules Civ Proc R 34
Statements of defendant's employees making reports as to accident and submitted in usual course of business
following accident are subject to inspection of plaintiff. Eiseman v Pennsylvania R. Co. (1944, DC Pa) 3 FRD 338.
Seaman was entitled to compel production under this rule of statement by witness made shortly after injury, another
statement by same witness made ten years later being substantially adverse to seaman, and fact that defendant's counsel
had procured statement did not render it privileged. Yates v Dann (1958, DC Del) 167 F Supp 174, 1 FR Serv 2d 569.
Motion under Rule 34 applies only to obtain discovery and production of documents from parties to action, and
cannot be used against witness. Gulf Constr. Co. v St. Joe Paper Co. (1959, SD Tex) 24 FRD 411, 2 FR Serv 2d 589.
In action by automobile passenger injured in car-train collision against railroad passenger, who was unable to recall
facts and circumstances of accident, plaintiff was entitled to production of statements of crewmen who were only
known eyewitnesses, driver having been killed, notwithstanding availability of the crewmen for depositions where
defendant did not show that prejudice would result from ordering production of statements or that there were competing
interests in case that justified nondisclosure. Crowe v Chesapeake & O. R. Co. (1961, ED Mich) 29 FRD 148, 5 FR
Serv 2d 586.
Ordinarily where witnesses are readily available for interrogation and examination, production of statements under
this rule is not allowed, but where witnesses cannot be located or are widely scattered, resulting in undue difficulty,
delay, and expense in arranging for interviews, or where witnesses refuse to make any statements, production may
properly be required. Williams v Northern P. R. Co. (1962, DC Mont) 30 FRD 26, 5 FR Serv 2d 589.
Memoranda prepared by attorney recording interviews of potential witnesses primarily with view to preparation for
trial are not discoverable, even though interviews were not considered in specific contemplation of instant suit as they
were conducted before it was commenced, but rather were conducted in contemplation of any litigation which might
arise; denial of discovery is also supported by fact that memoranda are more than simple investigative reports of kind
that would be prepared by claims agent as they are material that would be expected to be prepared by attorney preparing
for trial of lawsuit; memoranda reveal possible trial strategy and as such exhibits are "work products" that reflect mental
processes of attorney. Ledge Hills Farms, Inc. v W. R. Grace & Co. (1963, SD NY) 7 FR Serv 2d 687.
Statements theretofore made by witnesses who had occupied automobile involved in accident would be ordered
produced where witnesses were unavailable because of service in armed forces. McDonald v Prowdley (1965, WD
Mich) 38 FRD 1; Griffin v Memphis Sales & Mfg. Co. (1965, ND Miss) 38 FRD 54, 9 FR Serv 2d 33.321, Case 3.
Defendant who could not, until plaintiff instituted action against it, without itself instituting suit, take depositions of
plaintiff's employee witnesses, whom plaintiff's counsel did not permit to refresh their memories by referring to their
statements given to plaintiff, was entitled to production and inspection of such statements, which had been given a few
days after vessel collision on which action was based, to extent those statements disclosed facts closely related to
information which defendant previously sought to discover by interrogatories and depositions. Maryland Shipbuilding
& Drydock Co. v Baker-Whitely Towing Co. (1967, DC Md) 42 FRD 12, 11 FR Serv 2d 924.
Where court did not have sufficient knowledge of facts to determine whether discrepancies existed between
statement witness for defendant had made to insurance adjuster on behalf of defendant and his deposition taken by
defendant's counsel and given to plaintiff's counsel, plaintiff's motion for production of statement would be granted in
view of admission of defendant's counsel that there were discrepancies. Fulton v Swift (1967, DC Mont) 43 FRD 166,
11 FR Serv 2d 883.
In wrongful death action, plaintiff should be furnished with copies of statements of witnesses to accident which were
made soon after accident, but which were not taken by attorneys, particularly as plaintiff's decedent died before he could
give any account of the accident. Tiernan v Westext Transport, Inc. (1969, DC RI) 46 FRD 3, 12 FR Serv 2d 879.
In actions involving typical claim of plaintiffs that certain statements made by defendant in connection with sale of
debentures relating to net income prospects of corporation were false and misleading, court would grant motion seeking
order requiring named defendants and certain present and former employees of defendant aircraft company to procure
for inspection and copying transcripts of testimony given by such persons at private hearing conducted by Securities and
Exchange Commission where it was undisputed that witnesses testified before Commission about typical claims of
plaintiffs and matters relevant to lawsuit. Herbst v Able (1972, SD NY) 63 FRD 135, CCH Fed Secur L Rep P 93923.
Usual federal rule is that there is no absolute right to production and inspection of documents reviewed by witness
prior to time he testifies on deposition or at trial; such inspection is limited to documents which are used by witness to
refresh his recollection while testifying. La Chemise Lacoste v Alligator Co. (1973, DC Del) 60 FRD 164, 178 USPQ
393.
Where witnesses involved in case are as accessible to plaintiffs as they are to defendant for purposes of deposition or
for securing statements, and movants have not offered any reasons for their lack of diligence in pursuing information
sought, motion to produce documents and permit copying would be denied; absent showing of some effort on plaintiffs'
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USCS Fed Rules Civ Proc R 34
part other than filing of brief and motion to produce, plaintiffs may not benefit from investigatory efforts of defendant.
Howard v Seaboard C. R. Co. (1973, ND Ga) 60 FRD 638, 18 FR Serv 2d 575.
In action brought pursuant to 42 USCS § 1983 based upon plaintiff's commitment to segregation following incident
at state penitentiary, court would deny motion of plaintiff to compel production of statements of inmates taken
subsequent to disturbance by state police, copies of which were given to Department of Corrections, where, on balance,
it was necessary to protect informants and maintain confidentiality of on-going criminal investigation, but motion might
be renewed if circumstances would change or unreasonable time would pass. United States ex rel. Jackson v Petrilli
(1974, ND Ill) 63 FRD 152, 18 FR Serv 2d 1246.
In action involving grade crossing collision between automobile in which plaintiff's decedent was riding and
defendant's train, court would grant Rule 37 motion to compel production of statements taken on day of accident by
employees working on behalf of railroad from train crew involved in accident, where plaintiff satisfied requirements of
Rule 26(b)(3), although defendant would be directed, if it considered that any portion of material ordered to be
produced was protected, to file appropriate motion in order that court might review material in camera. Teribery v
Norfolk & W. R. Co. (1975, WD Pa) 68 FRD 46, 20 FR Serv 2d 897.
Rule required antitrust defendants to produce transcripts of civil investigative demand depositions of those
employees and ex-employees over whom defendants have control. Re Domestic Air Transp. Antitrust Litigation (1992,
ND Ga) 142 FRD 354, 1992-1 CCH Trade Cases P 69853.
Names and addresses of witnesses to accident or incident as subject of pretrial discovery. 37 ALR2d 1152.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection. 73 ALR2d 12.
58. Miscellaneous
Order requiring defendants to make available to plaintiff's attorneys, for inspection and copying, documents in
defendants' possession falling within 91 described categories and covering 18-year period did not require defendants to
make available their entire files and records so that attorneys could search through them for required documents, and
right of inspection and copying granted by such order would be limited to documents and papers designated in order as
written. General Petroleum Corp. v District Court of United States (1954, CA9 Wash) 213 F2d 689.
In action brought by aerospace engineer with respect to denial of security clearance, investigative files compiled by
Department of Defense's Industrial Security Clearance Review Office in formulating initial decision to deny plaintiff's
security clearance were sufficiently relevant so as to support order requiring in camera inspection of documents. Smith
v Schlesinger (1975) 168 App DC 204, 513 F2d 462, 20 FR Serv 2d 473.
Motion by defendant to compel plaintiff to produce for inspection original documents or papers on which plaintiff's
story and musical compositions were written is proper and is authorized by this rule. Gielow v Warner Bros. Pictures,
Inc. (1938, DC NY) 26 F Supp 425.
Where during taking of deposition of treasurer of defendant corporation such treasurer disclaimed personal
knowledge of certain matters, motion to compel defendant to produce records for purpose of refreshing memory of
treasurer would be granted. Hall Bartlett Productions, Inc. v Republic Pictures Corp. (1957, DC NY) 20 FRD 625.
Defendant in patent infringement suit is required to answer plaintiff's oral questions as to what features of plaintiff's
patented device he embodied or incorporated in his allegedly infringing device and what defendant knew of plaintiff's
device at time he allegedly infringed it, where questions are relevant to issues of copying and damages. M & W
Electric Mfg. Co. v Gatto Electric Supply Co. (1965, MD Pa) 38 FRD 393, 147 USPQ 513, 9 FR Serv 2d 26b.53, Case
2.
Where defendant has no other way to prepare its defense except by discovery of names and addresses of plaintiff's
customers, such discovery will be permitted, but only to limited extent where possibility of impairment of plaintiff's
business existed. Turmenne v White Consol. Industries, Inc. (1967, DC Mass) 266 F Supp 35, 1967 CCH Trade Cases
P 72128, 11 FR Serv 2d 879.
Where principal question to be decided is whether Comptroller of United States complied with requirements of
statute prior to exercise of his discretion to refuse plaintiff's application to commence banking business, plaintiff's
motion for production of Comptroller's administrative file relating to application must be granted since file is principal
source of evidence of alleged arbitrariness, capriciousness and abuse of discretion. Olsen v Camp (1969, DC Mich)
328 F Supp 728, 15 FR Serv 2d 746.
Motion for extending scope of discovery would be denied since with mass of material already filed in cases had
grown more unwieldy and intricate with each passing day, and production of additional documents sought, while
slightly relevant to issue, would act only to complicate further already complex case. Struthers Scientific &
International Corp. v General Foods Corp. (1970, DC Del) 50 FRD 184, 165 USPQ 769, 14 FR Serv 2d 599.
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USCS Fed Rules Civ Proc R 34
Request for production of plaintiff's "file pertaining to the defendants" in action alleging breach of management
agreement between plaintiff, attorney, and professional entertainer was too broad, although file might contain material
that was subject to discovery. Balistrieri v O'Farrell (1972, ED Wis) 57 FRD 567, 16 FR Serv 2d 1320.
In action for injunction against construction of watershed project, where plaintiff moved under Rule 34 for
production of copies of documents upon which officers of Soil Conservation Service gathered basic data for
calculations of costs and benefits of project, discovery of documents would be allowed with reservations in light of fact
that calculations based on documents related directly to plaintiffs' contentions that construction of project would violate
Service's own rules and regulations. Natural Resources Defense Council, Inc. v Grant (1973, ED NC) 355 F Supp 280,
16 FR Serv 2d 1527, 3 ELR 20176.
Motion under Rule 37(a)(2) to compel corporate-defendant and four officers to produce various corporate
documents, including corporation's board meetings, will be granted where documents requested are relevant in
determining defendant directors' involvement in alleged fraudulent activities of corporation. Teledyne Industries, Inc. v
Eon Corp. (1974, SD NY) 373 F Supp 191, 20 CCF P 82918.
In action for legal fees, court would deny motion for production of documents including attorney's calendar and
appointment book, monthly compilation of client fees for all attorneys of firm, all billings rendered by particular
attorney, and firm's accounting records, where (1) goodwill of firm would be jeopardized by having other clients
interrogated with respect to matters entirely unrelated to case, (2) plaintiff agreed to furnish defendant with calendar and
appointment book without names of clients, and supplied defendant with information on all other litigation conducted
by attorney during relevant time period, and (3) court had indicated willingness to allow further discovery if defendant
could make prima facie showing of discrepancies warranting such further investigation. Bean, De Angelis & Kaufman
v Combustion Equipment Associates (1977, ED Pa) 74 FRD 91, 24 FR Serv 2d 688.
Documents pertinent to defendant's internal policies were discoverable despite defendant's contention that such
documents were inadmissible to show its negligence in performing its responsibilities; information which is not
admissible at trial is not necessarily protected from discovery. Federal Sav. & Loan Ins. Corp. v Commonwealth Land
Title Ins. Co. (1990, DC Dist Col) 130 FRD 507.
In pollution damage suit concerning contamination of soil and ground water by industrial solvent, a request of
defendant who delivered solvent to plant for any documents relating to releases of hazardous substances would be
granted since request was relevant. Amcast Industrial Corp. v Detrex Corp. (1991, ND Ind) 138 FRD 115.
Incumbent contractor, excluded from competing for follow-on work government slated for set-aside through SBA
program, is entitled to expedited discovery, where scope of request is limited to records concerning certain applications
for program, because FRCP 34(b) expressly provides that courts may expedite discovery, which is particularly
appropriate since contractor seeks injunctive relief. Ellsworth Assocs. v United States (1996, DC Dist Col) 917 F Supp
841, 34 FR Serv 3d 1215, dismd (1996, DC Dist Col) 926 F Supp 207.
FRCrP 6(e), which imposes general rule of secrecy on grand jury materials, did not prohibit defendants in civil
action, who, as defendants in separate criminal action, had obtained grand jury materials legitimately, from producing
such materials in civil action pursuant to plaintiff's request for production of documents. Liberty Mut. Ins. Co. v
Diamante (2000, DC Mass) 193 FRD 15.
Computer records, including records that have been deleted, are documents discoverable under FRCP 34. Simon
Prop. Group L.P. v MySimon, Inc. (2000, SD Ind) 194 FRD 639, supplemented (2000, SD Ind) 2000 US Dist LEXIS
8953.
C. Possession, Custody, or Control
59. Generally
Records which are normally kept in business of party are presumed to exist, absent sworn denial, and prima facie
case of control is all that must be established. Norman v Young (1970, CA10 Okla) 422 F2d 470, CCH Fed Secur L
Rep P 92633, 13 FR Serv 2d 1004.
Party may not be compelled to produce papers not in his own possession. Orange County Theatres, Inc. v Levy
(1938, DC NY) 26 F Supp 416; Bough v Lee (1939, DC NY) 26 F Supp 1000; Flynn v Magraw (1939, DC NY) 27 F
Supp 936; Welty v Clute (1939, DC NY) 29 F Supp 2.
Party may be compelled to produce only such papers as are in his possession or under his control. Orange County
Theatres, Inc. v Levy (1938, DC NY) 26 F Supp 416.
Party may be required to produce documents which are under his control without having actual possession of them.
United Mercantile Agencies v Silver Fleet Motor Express, Inc. (1941, DC Ky) 1 FRD 709.
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USCS Fed Rules Civ Proc R 34
Inspection and production should be allowed as to documents and records which bear directly upon material issues,
are necessary to prepare for trial, and are in exclusive control of defendant. G. F. Heublein & Bro. v Bushmill Wine &
Products Co. (1941, DC Pa) 2 FRD 190, 52 USPQ 583.
It must appear that documents requested are in existence and are in possession of opposing party. United States v
Schine Chain Theatres, Inc. (1942, DC NY) 2 FRD 425.
Documents and tangible things cannot be ordered produced if party from whom production is sought denies
possession or existence of such items. Eiseman v Pennsylvania R. Co. (1944, DC Pa) 3 FRD 338; Gordon v
Pennsylvania R. Co. (1946, DC Pa) 5 FRD 510; William A. Meier Glass Co. v Anchor Hocking Glass Corp. (1951, DC
Pa) 11 FRD 487, 91 USPQ 207; Richards v Maine C. Railroad (1957, DC Me) 21 FRD 593 (disapproved on other
grounds by Southern R. Co. v Lanham (CA5 Ga) 403 F2d 119, 12 FR Serv 2d 860, 33 ALR3d 427, reh den (CA5 Ga)
408 F2d 348).
Until existence of documents asked for is established so that documents can be identified and their materiality
established, there can be no order to produce them under this rule. Condry v Buckeye S.S. Co. (1945, DC Pa) 4 FRD
310.
Motion by defendant for order requiring production of X-rays of plaintiff's alleged injury would be denied where
plaintiff denied having such X-ray photographs in her possession or that they were in her custody and control. Reeves
v Pennsylvania R. Co. (1948, DC Del) 80 F Supp 107.
True test is control and not possession. Bifferato v States Marine Corp. (1951, DC NY) 11 FRD 44.
Where certain items had been delivered to party, it was reasonable to assume that they were still in his possession or
control. William A. Meier Glass Co. v Anchor Hocking Glass Corp. (1951, DC Pa) 11 FRD 487, 91 USPQ 207.
Rule 34 applies to materials in possession, custody or control of party, and production may be ordered when party
has legal right to obtain papers, even though he has no copy, and regardless of whether paper is beyond jurisdiction of
court. Buckley v Vidal (1970, SD NY) 50 FRD 271, 14 FR Serv 2d 761.
Party need not have actual possession of documents to be deemed in control of them; rather, test is whether party has
legal right to control or to obtain documents being sought. Re Folding Carton Antitrust Litigation (1977, ND Ill) 76
FRD 420, 1977-2 CCH Trade Cases P 61743, 24 FR Serv 2d 416.
Party fails to provide adequate response to request for document production where he suggests that he will only
produce such documents as are within his personal control; Rule 34 requires party to produce documents which are in
his personal control or which he has legal right to control. Tavoulareas v Piro (1981, DC Dist Col) 93 FRD 11, 34 FR
Serv 2d 106.
Party has "control" over document if party has legal right to obtain documents. Haseotes v Abacab International
Computers, Inc. (1988, DC Mass) 120 FRD 12.
Association cannot sidestep its duty to answer under FRCP 33(a) by invoking FRCP 33(d), which provides option to
produce business records, and then asserting that FRCP 34 excuses it from any discovery obligation whatsoever. Law v
NCAA (1996, DC Kan) 167 FRD 464, 1996-2 CCH Trade Cases P 71518, vacated, writ granted, stay dissolved (1996,
CA10) 1996-2 CCH Trade Cases P 71573.
In ruling on FRCP 34 motions to compel corporation to produce documents from another corporation, courts define
"control" to include both legal right to control company and actual ability to control. Uniden Am. Corp. v Ericsson Inc.
(1998, MD NC) 181 FRD 302.
Since purpose of FRCP 34 is to make relevant and nonprivileged documents and objects in possession of one party
available to other party, party may inspect any document that is relevant to pending subject matter; however, court may
not compel one party to sign release form so that other party may obtain documents such as medical records. Clark v
Vega Wholesale (1998, DC Nev) 181 FRD 470.
"Control" under FRCP 34 is to be broadly construed so that party may be obligated to produce documents requested
even though party may not actually possess documents; as long as party has legal right or ability to obtain documents
from another source on demand, that party is deemed to have "control." Poole v Textron, Inc. (2000, DC Md) 192 FRD
494, 46 FR Serv 3d 572.
For purposes of FRCP 34(a), control, which is defined not as possession, but as legal right to obtain documents on
demand, is test as to whether production is required. Alexander v FBI (2000, DC Dist Col) 194 FRD 299.
FRCP 34(a) only requires party to produce documents that are already in existence; party is not required to prepare,
or cause to be prepared, new documents solely for their production. Alexander v FBI (2000, DC Dist Col) 194 FRD 305.
In practice and procedure discrimination suit brought by Equal Employment Opportunity Commission (EEOC),
where EEOC stated that it did not maintain statistical questionnaire data, and therefore, could not be required to produce
it. EEOC v Carrols Corp. (2003, ND NY) 215 FRD 46.
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USCS Fed Rules Civ Proc R 34
60. Independent means of obtaining
Court did not abuse its discretion in denying corporation's request for Internal Revenue Service documents in IRS
summons enforcement proceeding where corporation failed to explore other available sources of information which
could have given court substantial additional information on which to base its exercise of discretion. Tax Liabilities of:
John Does, etc. v United States (1989, CA8 Minn) 866 F2d 1015, 89-1 USTC P 9159, 63 AFTR 2d 89-660.
Defendants' motion for production of documents would be denied where such documents related to defendants'
business affairs and those who prepared such documents were known to defendants and were available for examination
by deposition or interrogatories and defendants failed to show that they needed originals of documents to prepare their
case. Uncle Ben's, Inc. v Uncle Ben's Pancake Houses, Inc. (1962, SD Tex) 30 FRD 506, 6 FR Serv 2d 657.
Defendant's motion to require plaintiff to produce its list of customers located in state of Wisconsin, sought on
ground that list was needed to determine whether plaintiff was doing business in that state without certifcate of
authority, would be denied, since information could be obtained by taking depositions of officers of plaintiff, and value
of plaintiff's business would be impaired if production was required. National Utility Service, Inc. v Wisconsin
Centrifugal Foundry, Inc. (1968, ED Wis) 44 FRD 539, 12 FR Serv 2d 829.
In action against architects for alleged negligence in designing and constructing building damaged by wind,
plaintiffs' motion for an order compelling the defendants to produce written investigation reports would be denied in
absence of showing that facts or information sought were necessary for trial preparation and could not be obtained by
independent investigation or research. Webb v Skidmore, Owings, & Merrill (1970, ED Pa) 50 FRD 182, 14 FR Serv
2d 596.
Compelling discovery from another, pursuant to Fed. R. Civ. P. 37, is unnecessary when documents sought under
Fed. R. Civ. P. 34, are equally accessible to all; furthermore, although parties are generally responsible for their own
costs, and their adversaries are not obligated to finance their litigation, court retains discretion to equitably alter cost
burden and order production under appropriate circumstances. Baum v Village of Chittenango (2003, ND NY) 218 FRD
36.
Court denied plaintiff's Fed. R. Civ. P. 37 motion to compel defendant to produce, under Fed. R. Civ. P. 34,
transcript where plaintiff refused to share costs of preparing transcript and document was equally available to both
parties; defendant was not obligated to subsidize plaintiff's litigation, and although plaintiff suggested that she was
financially strapped, she offered no details to substantiate that suggestion. Baum v Village of Chittenango (2003, ND
NY) 218 FRD 36.
61. Documents in possession of requesting party
Production for inspection of all communications between parties with reference to contract upon which suit was
brought was denied, it appearing that information was already in possession of moving party and papers were requested
merely to assure that they would be available at trial. Compagnie Continentale D'Importation v Pacific Argentine
Brazil Line, Inc. (1940, DC NY) 1 FRD 388.
In action by United States to enforce voting rights, defendant is not entitled to inspect and copy records, documents
and papers in possession of plaintiff despite assertion that it is necessary to defense since documents and records
presumably are in possession of defendants themselves. United States v Alabama (1960, MD Ala) 188 F Supp 759, 4
FR Serv 2d 588.
Where defendant asserted and plaintiff did not deny that all of documents requested by plaintiff were already in his
possession or that he had access to them, court would not require defendant to produce them for plaintiff's inspection
and copying in absence of showing by plaintiff that documents were not in his possession or not reasonably accessible
to him. Pope v Ungerer & Co. (1969, ND Ga) 49 FRD 300, 14 FR Serv 2d 503.
Non-profit trade organization would not be required to produce documents in possession of individual members
where there was no evidence that trade association had any legal right to documents belonging to member organizations
nor any evidence that plaintiff could not obtain requested information directly from member organizations. Oil Heat
Institute v Northwest Natural Gas (1988, DC Or) 123 FRD 640.
Party is required to produce documents that he has in his possession, control or custody, regardless of whether he
believes opposing party already has those documents; thus, response to request which merely states that documents
sought are in possession of requesting party is insufficient. Walt Disney Co. v DeFabiis (1996, CD Cal) 168 FRD 281.
62. Sufficiency of assertion of possession or control
Where party seeking production of records does not contend that other party maintains possession or custody of
records, so that only issue is whether other party has control over those records, party seeking production of documents
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USCS Fed Rules Civ Proc R 34
bars burden of proving that opposing party has such control. United States v International Union of Petroleum &
Industrial Workers, (1989, CA9 Cal) 870 F2d 1450, 111 CCH LC P 11052.
Motion for production of books and records pertaining to adversary's business need not state that such documents are
in possession, custody, or control of adversary since it may be assumed that they are in his control. United Mercantile
Agencies v Silver Fleet Motor Express, Inc. (1941, DC Ky) 1 FRD 709.
Under Rule 34, plaintiff must designate documents that are in possession, custody, or control of defendant. Condry
v Buckeye S.S. Co. (1945, DC Pa) 4 FRD 310; Ft. Wayne Corrugated Paper Co. v Anchor Hocking Glass Corp. (1940,
DC Pa) 4 FRD 328; Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD 333, 64 USPQ 387.
Plaintiff's motion for production by corporate defendant for inspection and copying of certain business records would
be granted notwithstanding that motion failed to allege that records were in defendant's possession, custody, or control,
where defendant failed to deny possession, custody, or control and admitted that some of requested records were in its
control. Standard Ins. Co. v Pittsburgh Electrical Insulation, Inc. (1961, WD Pa) 29 FRD 185, 5 FR Serv 2d 173.
Patent holder's motion to compel individual to provide written consent authorizing holder to obtain from Securities
and Exchange Commission (SEC) copy of prior statement under oath and related documents that individual gave to
SEC was granted because fact that individual did not currently have copies in individual's possession was not significant
because individual had control of those documents, for purposes of Fed. R. Civ. P. 34(a), by signing necessary request
form. Pres. Prods. v Nutraceutical Clinical Labs. Int'l, Inc. (2003, ND Ill) 214 FRD 494.
63. Particular custodians; assignee
Where plaintiff sought from defendant promissory note involved in suit, and defendant claimed he had transferred it
to person over whom court could not exercise jurisdiction, court could not require defendant to produce note. Haase v
Chapman (1969, WD Mo) 308 F Supp 399.
64. --Corporate officer or director
Rule 34 document request may reach only those documents within possession, custody or control of subpoenaed
person and these requirements would be satisfied where, although documents may have resided in files other than those
of subpoenaed person, it would be unreasonable to believe that, in the exercise of his duties as Vice President, he had no
control over files other than his own and where he had submitted no affidavit that documents were not in his control; the
question is one of "control", not "possession". United States v International Business Machines Corp. (1979, SD NY)
477 F Supp 698.
Defendants who were owners and officers of non-party corporation would be compelled to respond to discovery
about corporation since information was relevant to plaintiff's allegation that defendants created sham corporation to
appropriate plaintiff's trade secrets and proprietary information and evade discovery, and defendants undoubtedly
exercised control over documents requested. General Environmental Science Corp. v Horsfall (1991, ND Ohio) 136
FRD 130.
65. --Counsel
On motion for production of documents, counsel for opposing party may be directed to obtain documents from his
client and make them available for copying or photographing by moving party. Monks v Hurley (1939, DC Mass) 28 F
Supp 600.
Documents in possession of party's attorney from third persons are within control of party and must be produced
under Rule 34. Kane v News Syndicate Co. (1941, DC NY) 1 FRD 738, 49 USPQ 169; Marron v Atlantic Refining Co.
(1947, DC Pa) 7 FRD 660; Martin v N. V. Nederlandsche Amerikaansche Stoomvaart Maatchappij (1948, DC NY) 8
FRD 363; Simper v Trimble (1949, DC Mo) 9 FRD 598; Dennhardt v Holman (1951, DC Colo) 12 FRD 79; Hanson v
Gartland S.S. Co. (1964, ND Ohio) 34 FRD 493, 8 FR Serv 2d 34.411, Case 3.
Defendant had control of blanket supply agreements requested under Rule 34 request for production of documents
where it was shown that counsel for defendants produced requested agreements on behalf of defendants in another
action, defendants were able to easily obtain agreements when it was in their interest to do so, and counsel with ready
access to agreements had working relationship with defendants' present counsel. M.L.C., Inc. v North American
Philips Corp. (1986, SD NY) 109 FRD 134, 1986-1 CCH Trade Cases P 66914, later proceeding (SD NY) 671 F Supp
246, 1987-2 CCH Trade Cases P 67700, later proceeding (SD NY) 1987 US Dist LEXIS 11340, later proceeding (SD
NY) 1988 US Dist LEXIS 5217.
Documents in possession, custody or control of party's attorney or former attorney are within party's "control" for
purposes of FRCP 34. Poole v Textron, Inc. (2000, DC Md) 192 FRD 494, 46 FR Serv 3d 572.
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USCS Fed Rules Civ Proc R 34
On plaintiff's motion to compel appraisal information, it was clear that defendants had legal right to documents and
ability to obtain documents from their tax attorneys; therefore, appraisal information had to be produced. Triple Five of
Minnesota, Inc. v Simon (2002, DC Minn) 212 FRD 523, affd (2002, DC Minn) 2002 US Dist LEXIS 10646.
66. --Government; agency or official
In war risk insurance action, government should not be directed to produce work records of plaintiff while in employ
of third parties since government is no more in control of such records than is plaintiff. Galanos v United States (1939,
DC Mass) 27 F Supp 298.
When government agency is party, agency may be required to produce documents in possession or control of another
agency; where foreign government is the ultimate beneficiary of any award in favor of plaintiff government corporation,
it is unacceptable to allow foreign government to refuse to produce documents necessary for full and fair litigation;
court defers issuance of production order in view of need for restraint in matters of comity and international law.
Compagnie Francaise d'Assurance Pour le Commerce Exterieur v Phillips Petroleum Co. (1984, SD NY) 105 FRD 16, 1
FR Serv 3d 167, 79 ALR Fed 763 (disagreed with by multiple cases as stated in Re Sealed Case, 263 App DC 357, 825
F2d 494, 23 Fed Rules Evid Serv 494, cert den 484 US 963, 98 L Ed 2d 391, 108 S Ct 451).
Phrase "possession, custody or control" is in disjunctive and only one of enumerated requirements need be met; thus,
since it is undisputed that U.S. Attorney has in his possession copy of FBI investigative report sought, his contention
that he does not have "control" of such documents and therefore cannot comply with discovery request is without merit.
Cumis Ins. Soc. v South-Coast Bank (1985, ND Ind) 610 F Supp 193, 2 FR Serv 3d 105.
FDIC reports which had been disclosed to defendant depository institution were not within custody, possession or
control of depository institution within meaning of Rule and therefore not discoverable by plaintiff since regulations
permit FDIC to disclose contents of reports to depository institution but specify that such reports remain property of
FDIC and may not be disclosed or made public by the institution. Re One Bancorp Secur. Litigation (1991, DC Me)
134 FRD 4, later proceeding (DC Me) 1991 US Dist LEXIS 5162.
In suit by U.S. to recover superfund site cleanup expenditures from hazardous substance generators, documents in
control of Congress were not discoverable through either DOJ or EPA who brought suit, given separation of powers.
United States v Davis (1992, DC RI) 140 FRD 261.
Resolution Trust Corporation had possession, custody, or control of Office of Thrift Supervision documents since it
had absolute and unrestricted ability to obtain OTS documents on demand pursuant to 12 USCS § 1812(o).
Resolution Trust Corp. v Deloitte & Touche (1992, DC Colo) 145 FRD 108, class certif gr (DC Colo) 1993 US Dist
LEXIS 5489.
67. --Insurer
While it has been said that, under state direct action statute, insurer stands in shoes of insured to extent of its policy
limits, wherever feet of insurer may be, its hands do not hold articles which are in possession and under control of
insured. Read v Ulmer (1962, CA5 La) 308 F2d 915, 6 FR Serv 2d 766.
In action on policies of insurance, defendant insurer would be ordered to produce copies of policies in suit, which
were then in its possession. Leimer v State Mut. Life Assur. Co. (1940, DC Mo) 1 FRD 386, app dismd (CA8 Mo) 127
F2d 862.
In negligence action, defendant's insurance carrier should not be compelled to give testimony of facts not of its own
knowledge for purpose of discovery or to exhibit its files. Colpak v Hetterick (1941, DC NY) 40 F Supp 350.
When insurance file is sought in third-party claim in which insurer is not party to action, insurer is not subject to
request for production. Henderson v Zurn Industries, Inc. (1990, SD Ind) 131 FRD 560.
68. --Physician or hospital
Records in possession of physician or person acting at his request are not in possession, custody, or control of
plaintiff who had been examined by physician. Reeves v Pennsylvania R. Co. (1948, DC Del) 80 F Supp 107; Greene
v Sears, Roebuck & Co. (1966, ND Ohio) 40 FRD 14, 10 FR Serv 2d 993.
Defendant's motion that office records of doctors who examined plaintiff be produced would be denied, since this
rule extends only to documents which adverse party has in his possession, custody, or control, and from record it did not
appear that any of subject office records were in possession or custody of plaintiff or her counsel. Greene v Sears,
Roebuck & Co. (1966, ND Ohio) 40 FRD 14, 10 FR Serv 2d 993.
Although Rule 34 permits discovery only against parties, plaintiff may furnish discovery by mailing to defendant his
consent authorizing hospital to release to defendant documents in its custody. Fleming v Gardner (1978, ED Tenn) 84
FRD 217.
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USCS Fed Rules Civ Proc R 34
Medical malpractice plaintiff could not be compelled to produce medical records in custody of other medical care
providers; at best, plaintiff could have copies of those records, which would then be available for defendant to inspect.
Neal v Boulder (1992, DC Colo) 142 FRD 325.
69. --Subsidiaries or affiliates
Party should not be required to produce correspondence between its unnamed subsidiaries and its adversary. Piest v
Tide Water Oil Co. (1938, DC NY) 26 F Supp 295.
Where government moved for production under Rule 34 of documents which were to be found only in files of
defendants' affiliates, many of which were located in foreign countries, court would hold that whatever alleged obstacles
were to obtaining information located within foreign jurisdiction in hands of defendants' affiliated or subsidiary
corporations, defendants must make good-faith effort to obtain information sought. United States v Standard Oil Co.
(1958, SD NY) 23 FRD 1, 1 FR Serv 2d 484.
Production of records in possession of wholly owned subsidiary may be compelled under Rule 34, where
defendant-parent and subsidiary corporations are substantially one. Standard Ins. Co. v Pittsburgh Electrical
Insulation, Inc. (1961, WD Pa) 29 FRD 185, 5 FR Serv 2d 173.
Court would grant plaintiff's motion for discovery and inspection under Rule 34 since defendant's objection, that
much of material sought was in possession of defendant's nonparty subsidiary and hence not subject to its custody and
control, was insufficient to induce court to deny motion. George Hantscho Co. v Miehle-Goss Dexter, Inc. (1963, DC
NY) 33 FRD 332, 7 FR Serv 2d 874.
Corporate defendant must produce documents that are under its control despite fact that two subsidiary corporations,
who were not parties to suit, had possession of documents and were beyond jurisdiction of court. Hubbard v
Rubbermaid, Inc. (1978, DC Md) 78 FRD 631, 17 BNA FEP Cas 1607, 18 CCH EPD P 8720, 25 FR Serv 2d 189.
For purposes of production request under Rule 34, documents are in control of corporation acting as agent of second
corporation, even though documents are those of second corporation, where corporation acting as agent of second
corporation and second corporation itself are alter egos of another entity which is controlling corporation. Perini
America, Inc. v Paper Converting Machine Co. (1983, ED Wis) 559 F Supp 552, 36 FR Serv 2d 9, later proceeding (CA
FC) 832 F2d 581, 4 USPQ2d 1621.
If circumstances exist that indicate some form of control by subsidiary over documents and information sought--even
if documents or other information are in possession of parent--subsidiary may be required to produce requested data or
at least to make good-faith effort to do so; this is so if subsidiary and parent have worked sufficiently closely in
particular field of endeavor that is subject of lawsuit to suggest that subsidiary could be deemed to have constructive
control of information sought (i.e., ready ability to obtain it), even if not actual possession. Ferber v Sharp Electronics
Corp. (1984, SD NY) 40 FR Serv 2d 950.
Plaintiff alleging misappropriation of trade secrets had sufficiently close relationship with its parent corporations in
Japan to justify enforcing discovery request for documents in physical possession of those corporations. Japan Halon
Co. v Great Lakes Chem. Corp. (1993, ND Ind) 155 FRD 626.
Discovery and inspection: compelling party to disclose information in hands of affiliated or subsidiary corporation,
or independent contractor, not made party to suit. 19 ALR3d 1134.
Who has possession, custody, or control of corporate books or records for purposes of order to produce. 47 ALR3d
676.
70. --Miscellaneous
Fact that Swiss law prohibits, under criminal sanctions, disclosure by Swiss banking firm of its documents does not
bar conclusion, in action to recover assets seized by government under Trading With the Enemy Act, that plaintiff had
"control" of these documents within meaning of Rule 34. Societe Internationale Pour Participations Industrielles et
Commerciales, S. A. v Rogers (1958) 357 US 197, 2 L Ed 2d 1255, 78 S Ct 1087 (disagreed with by multiple cases as
stated in Re Sealed Case, 263 App DC 357, 825 F2d 494, 23 Fed Rules Evid Serv 494, cert den 484 US 963, 98 L Ed 2d
391, 108 S Ct 451).
It is within power of Federal District Court to order defendants to request release of their records from other parties
maintaining custody of them so that defendants can comply with discovery obligations in federal civil proceedings, and
such order is appropriate where records have been seized from defendants pursuant to search warrant that state court
issued in connection with criminal prosecution, defendants moved in state proceeding to suppress use of records on
constitutional grounds, and state court granted suppression motion and ordered records sealed. United States ex rel.
Woodard v Tynan (1985, CA10 Colo) 776 F2d 250, 3 FR Serv 3d 105, later proceeding (CA10 Colo) 797 F2d 888.
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USCS Fed Rules Civ Proc R 34
Landowners did not have possession, custody, or control, within meaning of rule, of chromatographic reports of soil
samples taken by subcontractor of landowners' contamination clean-up contractor. Chaveriat v Williams Pipe Line Co.
(1993, CA7 Ill) 11 F3d 1420, 24 ELR 20217.
Federal Reserve examination reports and documents prepared by both Federal Reserve Board and bank during
examination process were discoverable under terms of Rule 34 since bank had possession of them and they were
relevant, notwithstanding that Federal Reserve's regulations provide that documents remain property of Board; to allow
federal agency regulation to effectively override application of Federal Rules of Civil Procedure and divest court of
jurisdiction over discovery, enabling statute must be more specific than general grant of authority under which Federal
Reserve regulations were promulgated. In re Bankers Trust Co. (1995, CA6 Ohio) 61 F3d 465, 32 FR Serv 3d 85, 1995
FED App 235P.
Party would be allowed to produce conformed copy of lease upon his sworn statement that he was not in possession
of original and that copy submitted was conformed copy of it. Blumenthal v Lukacs (1942, DC NY) 2 FRD 427.
Plaintiffs may rightfully objected to defendant's instruction that each class member sign request for production of
documents where plaintiffs' counsel maintains that plaintiffs already possess many of requested documents and that it
would be more efficient and far less complicated for counsel to obtain remaining documents from class members and
then make them available to defendant. Sharp v Coopers & Lybrand (1979, ED Pa) 83 FRD 343, CCH Fed Secur L
Rep P 96952, later proceeding (ED Pa) 491 F Supp 55, CCH Fed Secur L Rep P 97563, 66 OGR 515, vacated on other
grounds (CA3 Pa) 649 F2d 175, CCH Fed Secur L Rep P 97971, 71 OGR 555, cert den 455 US 938, 71 L Ed 2d 648,
102 S Ct 1427.
Non-profit trade organization would not be required to produce documents in possession of individual members
where there was no evidence that trade association had any legal right to documents belonging to member organizations
nor any evidence that plaintiff could not obtain requested information directly from member organizations. Oil Heat
Institute v Northwest Natural Gas (1988, DC Or) 123 FRD 640, later proceeding (DC Or) 708 F Supp 1118, 10
USPQ2d 1219.
Evidence was uncontroverted that plaintiff sportswriter's estate did not have possession or custody of articles written
by deceased since, once articles were sold to newspapers, sportswriter destroyed notes and copies and did not keep
scrapbook or collection of his writings. Estate of Young v Holmes (1991, DC Nev) 134 FRD 291.
III. PROCEDURE
71. Generally
Documents made available to one party to suit must be made available to all parties. American President Lines v
Hartford Fire Ins. Co. (1971, ED Pa) 55 FRD 61, 16 FR Serv 2d 449.
Rules 33(a) and 34(b) are designed for pretrial procedure rather than post-trial litigation. Goldy v Beal (1981, MD
Pa) 91 FRD 451, 32 FR Serv 2d 261.
Party cannot secure documents from opposing party by serving deposition subpoena duces tecum on employee of
opposing party commanding production of party's documents at deposition unless provisions of Rule 34 are followed.
Contardo v Merrill Lynch, Pierce, Fenner & Smith (1988, DC Mass) 119 FRD 622, 10 FR Serv 3d 719.
72. Preliminary discovery
If answers to interrogatories disclose existence of documents, inquiring party may seek such documents under Rule
34. Gaumond v Spector Motor Service, Inc. (1940, DC Mass) 1 FRD 364.
Party should not be ordered to permit general inspection of all of his records simply because movant does not know
which documents are needed; necessary information to properly identify desired documents may be obtained by
discovery. Monarch Liquor Corp. v Schenley Distillers Corp. (1941, DC NY) 2 FRD 51; Rosenblum v Dingfelder
(1941, DC NY) 2 FRD 309.
Information necessary to properly identify desired documents may be obtained by deposition, oral examination, and
upon written interrogatories. Rosenblum v Dingfelder (1941, DC NY) 2 FRD 309.
If party moving for production of documents does not have sufficient information to describe documents which he
desires to inspect, or to aver that they were in control of plaintiff, he may take depositions of plaintiff's officers to obtain
exact information as to existence, description, custody, and location of documents which constitute or contain evidence
material to any matter involved in suit. Stewart-Warner Corp. v Staley (1945, DC Pa) 4 FRD 333, 64 USPQ 387.
Plaintiff without sufficient information to particularize further could take depositions under Rule 26 or proceed by
interrogatories under Rule 33 to acquire necessary information as to particular documents relative to matters within
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USCS Fed Rules Civ Proc R 34
scope of discovery. Richland Wholesale Liquors, Inc. v Joseph E. Seagram & Sons, Inc. (1966, DC SC) 40 FRD 480,
1966 CCH Trade Cases P 71923, 10 FR Serv 2d 958.
Where defendants resisted plaintiffs' request for certain documents on basis that plaintiffs were assuming existence
of documents and should first be required to utilize interrogatories to delineate specifically material requested, court
would hold this to be needlessly time-consuming procedure in light of fact that defendants did not deny existence of any
requested material. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
Identity of witnesses whom adverse party plans to call to testify at civil trial, as subject of pretrial discovery. 19
ALR3d 1114.
73. Intervention of court
1970 amendment to Rule 34 contemplated discovery of documents without intervention of court. Abel Invest. Co. v
United States (1971, DC Neb) 53 FRD 485, 72-1 USTC P 9284, 15 FR Serv 2d 1111, 29 AFTR 2d 72-894.
Rule 34 envisions that discovery will be conducted by skilled gentlemen of bar, without wrangling and without
intervention of court. Harlem River Consumers Cooperative, Inc. v Associated Grocers of Harlem, Inc. (1972, SD NY)
54 FRD 551, 1972 CCH Trade Cases P 73940, 15 FR Serv 2d 1341.
74. Necessity of request
Production of photographs was not required where no cause of action was pending. Egan v Moran Towing &
Transp. Co. (1939, DC NY) 26 F Supp 621.
Rule 34 gives disclosure rights only to parties to litigation which is pending in federal court. Williams v IRS (1972,
DC Del) 345 F Supp 591, 72-1 USTC P 9406, 29 AFTR 2d 72-1229, affd (CA3 Del) 479 F2d 317, 73-1 USTC P 9476,
32 AFTR 2d 73-5041, cert den 414 US 1024, 38 L Ed 2d 315, 94 S Ct 448.
Where Board of Patent Interferences awarded priority of invention to defendant, plaintiff's motion in District Court
for discovery was rendered moot and motion would be dismissed. Vogel v Jones (1972, DC NJ) 350 F Supp 1297, 175
USPQ 156, affd (CA3 NJ) 464 F2d 573, 175 USPQ 129.
District Court properly denies motion for order compelling compliance with movant's Rule 34 request that
defendants produce all their billing record documents, which motion is characterized by movant as effort to resolve
attorneys' fee portion of case, where (1) attorneys' fee portion of case is not yet before court and will not be until
conclusion of proceedings on remand, at which time movant may properly file motion for attorneys' fees pursuant to
prior agreed order, and (2) motion violates spirit of admonitions of U. S. Supreme Court that request for attorneys' fees
should not result in second major litigation and that litigants will ideally settle amount of fee. Alexander v National
Farmers' Organization (1985, WD Mo) 614 F Supp 745, later proceeding (WD Mo) 637 F Supp 1487, 1986-2 CCH
Trade Cases P 67226, later proceeding (WD Mo) 645 F Supp 1146, 1987-2 CCH Trade Cases P 67863, affd in part and
revd in part on other grounds (CA8 Mo) 850 F2d 1286, 1988-2 CCH Trade Cases P 68128, cert den (US) 103 L Ed 2d
840, 109 S Ct 1535 and amd on other grounds (CA8 Mo) 878 F2d 1118.
Plaintiff's request for order to compel production of documents would be denied where documents were not
requested pursuant to Rule 34, but in highly informal, extraprocedural manner: plaintiff's letter to defense counsel was
simply confirmation of oral requests made at deposition and, in lieu of reply brief, plaintiff transmitted to court
seven-page letter fortified with footnotes, case citations, point headings, and exhibits. Schwartz v Marketing
Publishing Co. (1994, DC Conn) 153 FRD 16.
75. Service of request
District Court did not err by denying prisoner bringing civil rights claim copy of his medical records where record
contained prisoner's request but did not indicate that request was ever served on defendant. Jackson v Cain (1989, CA5
La) 864 F2d 1235.
Plaintiff was not entitled to production of books and records without giving sufficient notice. Newmark v Abeel
(1952, DC NY) 106 F Supp 758.
Parties should not simply file with court motion for production of documents pursuant to Rule 37(a), but should first
comply with prior-request requirements of Rule 34(b). Howard v Seaboard C. R. Co. (1973, ND Ga) 60 FRD 638, 18
FR Serv 2d 575.
Defendant's motion filed with court to require National Labor Relations Board to produce certain documents and
comply with Freedom of Information Act would not be considered until defendant made request for such documents
under Rule 34 and was improperly refused. Grissom v NLRB (1973, MD La) 364 F Supp 1151, 84 BNA LRRM 2517,
72 CCH LC P 14047, affd (CA5) 497 F2d 43, 86 BNA LRRM 3031, 74 CCH LC P 10191.
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USCS Fed Rules Civ Proc R 34
76. Time of request
35 USCS § 24 gives parties in patent office proceedings right to secure documents in accordance with Rule 34;
there need be no filing of complaint or service of summons, because motion for relief under Rule 34 is sufficient to
initiate court action looking to discovery and production. Natta v Hogan (1968, CA10 Okla) 392 F2d 686, 157 USPQ
183, 11 FR Serv 2d 905 (disagreed with by Shattuck v Hoegl (CA2 NY) 523 F2d 509, 187 USPQ 1, 20 FR Serv 2d 714
(disagreed with by Brown v Braddick (CA5 Tex) 595 F2d 961, 203 USPQ 95)).
Rule 34 may be invoked in aid of civil action at any time after its commencement. See C. F. Simonin's Sons, Inc. v
American Can Co. (1938, DC Pa) 24 F Supp 765; Michelson v Shell Union Oil Corp. (1939, DC Mass) 26 F Supp 594;
Fishman v Marcouse (1940, DC Pa) 32 F Supp 460; Courteau v Interlake S.S. Co. (1941, DC Mich) 1 FRD 525.
Discovery of documents should not be permitted until answer is filed since until issue is joined it cannot be
determined whether or not requested documents contain evidence material to any issue. Piest v Tide Water Oil Co.
(1938, DC NY) 26 F Supp 295.
Motion for production of documents may be made at any time after commencement of action, even before joinder of
issue. Courteau v Interlake S. S. Co. (1941, DC Mich) 1 FRD 525.
Motion for discovery should not be permitted until answer is filed, since, until joinder of issue it cannot be
determined whether or not desired documents or objects constitute or contain evidence material to issue in controversy.
Employers' Mut. Liability Ins. Co. v Blue Line Transfer Co. (1941, DC Mo) 2 FRD 121.
Spirit of these rules requires that discovery be made before trial whenever possible. Stark v American Dredging Co.
(1943, DC Pa) 3 FRD 300.
Production and inspection of documents may be sought from adverse party at any time, but order granting motion
should not change schedule of trial procedures already established. Trans World Airlines, Inc. v Hughes (1961, DC
NY) 29 FRD 523, 5 FR Serv 2d 494.
Inclusion of references to FRCP 45 within FRCP 26(a)(5) and FRCP 34(c) is clear indication that procuring
documents from nonparties can constitute discovery, and although neither FRCP 45 nor FRCP 34 contains any time
limit within which to procure documents from third parties, this does not mean that party should be allowed to employ
subpoena after discovery deadline to obtain materials from third parties that could have been produced during
discovery. Alper v United States (2000, DC Mass) 190 FRD 281.
77. --Delay
Plaintiff was not barred from photographing certain areas of vessel on which he was injured even though 2 years had
elapsed since accident occurred. Canty v Great Lakes Transit Corp. (1941, DC NY) 2 FRD 156.
Motion for discovery and examination in stockholder's derivative action, plaintiff having had opportunity to inspect
books and records of which she had not availed herself for five months, would be denied as not made in good faith but
solely to prolong litigation. Goldboss v Reimann (1943, DC NY) 55 F Supp 811, affd (CA2 NY) 143 F2d 594.
Plaintiff was entitled to photograph premises and equipment involved in action even though 3 years had passes since
date of accident, and motion to inspect would be granted. Farr v Delaware, L. & W. R. Co. (1944, DC NY) 7 FRD 494.
Motion for production of documents was untimely and would be denied where it was made by defendant 7 months
after commencement of action and only weeks before trial date. McCullough v Dairy Queen, Inc. (1961, ED Pa) 195 F
Supp 918, 4 FR Serv 2d 615.
Where cause of action occurred in 1966 but suits were not brought until 1969, cases were not so old that additional
discovery time could not be allowed. Walker v Liberty Mut. Ins. Co. (1970, DC Wis) 48 FRD 365.
In motion for production of documents it is not necessary to make showing of good cause, but parties seeking
documents must show substantial need for materials in preparation of case, and inability without undue hardship to
obtain substantial equivalent of the materials by other means; in attempt to discover statement made by former
employee of defendant such showing is not made when there has been no attempt to interview or depose individual until
thirty months after occurrence of fire which is basis for lawsuit and sixteen months after instituting of suit. Fidelity &
Deposit Co. v S. Stefan Strauss, Inc. (1971, DC Pa) 52 FRD 536, 15 FR Serv 2d 593.
Plaintiff injured while working for defendant railroad was not entitled to discovery of statement given to agent of
railroad by only witness one month after accident where witness was still available, and plaintiff had counsel within two
months following date statement was taken but did not take deposition of witness until approximately 2 years later,
despite fact that witness was at all times employed by defendant. Almaguer v Chicago, R. I. & P. R. Co. (1972, DC
Neb) 55 FRD 147, 16 FR Serv 2d 588.
In interest of expediting litigation court may order production of materials despite fact that they were requested
informally in letter from defense counsel to plaintiff's counsel after expiration of discovery. Financial Bldg.
Consultants, Inc. v American Druggists Ins. Co. (1981, ND Ga) 91 FRD 59.
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USCS Fed Rules Civ Proc R 34
78. Response to request
Although magistrate judge in race discrimination employment suit should have been more explicit in rejecting
plaintiff's request to infer from fact that employer destroyed documents after being served with discovery request that
documents would have been unfavorable, court would not remand case since plaintiff inexplicably never made motion
for sanctions and it was not clear what issue missing documents would have resolved. Mathis v John Morden Buick, Inc.
(1998, CA7 Ill) 136 F3d 1153, 76 BNA FEP Cas 352.
Adverse party may express willingness to have court pass upon what books and records should be produced. Baker
v Midtown Bus Terminal, Inc. (1942, DC NY) 3 FRD 70.
If documents sought are not in existence, it is incumbent upon objecting party to so state under oath and not by way
of general unverified allegation. Jensen v Boston Ins. Co. (1957, DC Cal) 20 FRD 619.
Appropriate course of party which considers discovery request to be too broad or otherwise improper is to oppose
such request in court, whether by objections, motion for protective order, or whatever other procedural means are
available by appropriate rules of procedure; it cannot simply sit back on basis of its unilateral judgment that request is
improper. Laker Airways, Ltd. v Pan American World Airways (1984, DC Dist Col) 103 FRD 42, 39 FR Serv 2d 1043,
later proceeding (DC Dist Col) 596 F Supp 202, 1985-1 CCH Trade Cases P 66390, later proceeding (DC Dist Col) 604
F Supp 280, 1985-2 CCH Trade Cases P 66731, later proceeding (DC Dist Col) 109 FRD 541, 2 FR Serv 3d 1310.
Defendants in patent infringement suit were not required to obtain court order compelling discovery because plaintiff
never properly notified defendants that any documents sought were being withheld. Badalamenti v Dunham's, Inc.
(1987, ED Mich) 118 FRD 437, 6 USPQ2d 1633, 10 FR Serv 3d 83.
Response to request for production of documents which referred party to interrogatory answers was totally improper
and essentially no response. Day v Boston Edison Co. (1993, DC Mass) 150 FRD 16, 62 BNA FEP Cas 842.
Parent company and age discrimination plaintiff's direct employer were subject to discovery; claim that responding
would require parent company to search thousands of files and interview executives for reasons why other managers
separated from company was issue that could be raised in response to particular document request and resolvable by
magistrate judge if counsel could not resolve it. Chambers v Capital Cities/ABC (1994, SD NY) 154 FRD 63.
Objection to document request must clearly set forth specifics of objection and how that objection relates to
documents being demanded. Obiajulu v City of Rochester, Dep't of Law (1996, WD NY) 166 FRD 293.
Although FRCP 34, which governs production of documents and things, does not provide any language with respect
to specificity and waiver of objections, which FRCP 33, which governs interrogatories, does, no reason exists to
distinguish between interrogatories and requests for production as to these matters. Pulsecard, Inc. v Discover Card
Servs. (1996, DC Kan) 168 FRD 295.
Response to request for production of documents which merely promises to produce requested documents at some
unidentified time in future, without offering specific time, place and manner, is not complete answer as required by
FRCP 34(b), and therefore, pursuant to FRCP 37(a)(3) is treated as failure to answer or respond. Jayne H. Lee, Inc. v
Flagstaff Indus. Corp. (1997, DC Md) 173 FRD 651, 38 FR Serv 3d 1347.
There are only three appropriate responses to request for production of documents: (1) objection to scope, time,
method and manner of requested production, (2) answer agreeing to requested scope, time, place and manner of
production, or (3) response offering good faith, reasonable alternative production, which is definite in scope, time, place
and manner. Jayne H. Lee, Inc. v Flagstaff Indus. Corp. (1997, DC Md) 173 FRD 651, 38 FR Serv 3d 1347.
In absence of extension of time or good cause, failure to file written response in time fixed by rule constitutes waiver
of any objection. Coker v Duke & Co. (1998, MD Ala) 177 FRD 682.
Any ground not stated in timely objection to written document request is waived unless party's failure to object is
excused by court for good cause shown. Blumenthal v Drudge (1999, DC Dist Col) 186 FRD 236, 27 Media L R 2004.
If responding party fails to timely object or state reason for objection, he may be held to have waived any objection;
however, party's failure to properly or timely object does not result in automatic waiver. Rivera v Kmart Corp. (2000,
DC Puerto Rico) 190 FRD 298.
Asserting general objection to request for production of documents does not comply with FRCP 34(b). Rivera v
Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298.
Since FRCP 34(b) requires reasons for any objections to be explicitly stated, rule implicitly provides for waiver
when objections are not stated; relief from such waiver may be obtained for good cause. Drexel Heritage Furnishings,
Inc. v Furniture USA, Inc. (2001, MD NC) 200 FRD 255.
Failure to follow requirements of FRCP 26(b)(5) and 34(b) may result in waiver of work product protection.
Anderson v Hale (2001, ND Ill) 202 FRD 548.
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USCS Fed Rules Civ Proc R 34
Failure to follow procedural requirements of FRCP 34(b) may result in waiver of privilege. Ritacca v Abbott Labs.
(2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
When party objects to discovery on ground of privilege, but fails to follow procedural requirements of FRCP 34(b),
minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances militate against
finding waiver of privilege. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
79. --Assertion of privilege
In damage suit brought by inventor under Invention Secrecy Act, formal claim of privilege by Secretary of Defense
was not necessary for issuance of refusal of discovery of classified documents. Clift v United States (1979, CA2 Conn)
597 F2d 826, 203 USPQ 561, 27 FR Serv 2d 155.
Claim of privilege upon request for relevant documents or information should be interposed judiciously and not
casually; under ordinary circumstances, objection to production of documents on ground of privilege should be made in
writing and not orally; same rationale for requiring that party objecting to request for production of documents under
Rule 34 must submit written response specifying objection to each category applies equally to response to subpoena
duces tecum. United States v O'Neill (1980, CA3 Pa) 619 F2d 222, 6 Fed Rules Evid Serv 643.
Although it is not seriously disputed that privilege would have attached to document sought if objection had been
timely and adequately asserted, failure to demonstrate entitlement to privilege at time when trial court is called upon to
make its ruling defeats privilege; it is not enough that document would have been privileged if adequate and timely
showing had been made, since applicability of privilege turns on adequacy and timeliness of showing as well as on
nature of document. Peat, Marwick, Mitchell & Co. v West (1984, CA10) 748 F2d 540, 40 FR Serv 2d, 502, cert dismd
469 US 1199, 83 L Ed 2d 984, 105 S Ct 983.
Where defendant's custodian of records, pursuant to subpena duces tecum served in connection with notice to take
deposition, produced accident report but refused to allow plaintiffs to inspect and copy it, claiming that report was
privileged, and plaintiffs moved for contempt citation, motion would be denied since issue of privilege was not raised
by proper motion under this rule. La Chance v Service Trucking Co. (1963, DC Md) 215 F Supp 159, 6 FR Serv 2d
894.
Requests for all documents evidencing consideration of plaintiff's patents was sufficient to inform defendant what
was wanted, and defendant's bald assertion that production of such documents would violate attorney-client privilege
was not enough to counter such request. Camco, Inc. v Baker Oil Tools, Inc. (1968, SD Tex) 45 FRD 384, 160 USPQ
541, 12 FR Serv 2d 845.
Objection to production of reports within defendant-insurer's possession that materials revealed "operation of the
minds" of insurer's employees and agents was not ground for refusing to compel production of documents. Merrin
Jewelry Co. v St. Paul Fire & Marine Ins. Co. (1970, SD NY) 49 FRD 54, 14 FR Serv 2d 108.
Defendants could not prevent discovery sought under Rule 34 by asserting privilege without any facts in support
thereof. Hoffman v Charnita, Inc. (1973, WD Pa) 17 FR Serv 2d 1144.
Where plaintiffs moved under Rule 37 to compel production of certain documents sought from Department of
Agriculture under Rule 34 and counsel for President filed affidavit asserting executive privilege with respect to
documents named in his affidavit, court would not consider any claim of executive privilege on so barren a record, and
in order to gain further information on nature of documents, would direct counsel for President to produce documents
for court's in camera inspection, but stay of order would be granted. Nader v Butz (1973, DC Dist Col) 60 FRD 381.
Voluntary production of documents waives any objection that might have been interposed to production despite
purported reservation of objections when production is made; one cannot produce documents and later assert privilege
which ceases to exist because of production. W. R. Grace & Co. v Pullman, Inc. (1976, WD Okla) 446 F Supp 771,
199 USPQ 432.
Plaintiff state would not be permitted to claim work product privilege in response to request for production of, inter
alia, critique of plaintiffs' experts' reports related to expert's expected testimony since plaintiff had specifically agreed
not to claim work product privilege with respect to such material. Re Coordinated Pretrial Proceedings in Petroleum
Products Antitrust, etc. (1992, CD Cal) 143 FRD 229, 1992-2 CCH Trade Cases P 70072, later proceeding (CD Cal)
1992 US Dist LEXIS 20207.
Employment discrimination plaintiff waived protection of attorney work-product privilege for requested documents
by failing to respond with objection within 30 days, despite contention that four-month response delay was pursuant to
oral agreement between parties, since stipulated extensions of response time must be in writing; contention was also
inconsistent with defendant's letters demanding responses. Smith v Conway Org. (1994, SD NY) 154 FRD 73.
General claim of privilege, be it work product or attorney-client, is inadequate response to discovery request.
Obiajulu v City of Rochester, Dep't of Law (1996, WD NY) 166 FRD 293.
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USCS Fed Rules Civ Proc R 34
Party asserting attorney-client privilege in response to subpoena must prove that privilege applies, that privilege
protects documents in question, and that party did not waive privilege. FEC v Christian Coalition (1998, ED Va) 178
FRD 61, affd in part and mod in part, motion den (1998, ED Va) 1998 US Dist LEXIS 4832, corrected (Apr 15, 1998).
Objection that information sought is privileged is waived if not timely stated, and it is within court's discretion to
determine whether privilege has been properly invoked. Coregis Ins. Co. v Baratta & Fenerty, Ltd. (1999, ED Pa) 187
FRD 528.
Objecting party must be specific enough in its objections to support its claim of privilege, but not too specific so as
to divulge privileged information. Rivera v Kmart Corp. (2000, DC Puerto Rico) 190 FRD 298.
Determining whether party has waived privilege due to lack of objection's specificity requires court to consider
circumstances surrounding assertion of general objection to production of privileged documents, because at times
blanket objection will be made for slothful reasons while at other times there may exist arguable reason why specific
identification of document to which privilege applies cannot be made. Rivera v Kmart Corp. (2000, DC Puerto Rico)
190 FRD 298.
In class action suit by mortgagors against bank and others for illegal kickback of legal fees, the mortgagors sought
discovery of suspicious activity reports (SARs) issued in connection with the criminal prosecution of bank's chief
executive officer, the existence of which were revealed in related suit brought by bank against the government relating
to the phase-out and elimination of regulatory capital treatment for supervisory goodwill; further, court held that the
regulation making SARs privileged from discovery was valid under the enabling legislation but it did not apply to
supporting documentation and it could not be waived by bank in civil lawsuit. Weil v Long Island Sav. Bank (2001, ED
NY) 195 F Supp 2d 383.
Failure to follow requirements of FRCP 26(b)(5) and 34(b) may result in waiver of work product protection.
Anderson v Hale (2001, ND Ill) 202 FRD 548.
Failure to follow procedural requirements of FRCP 34(b) may result in waiver of privilege. Ritacca v Abbott Labs.
(2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
When party objects to discovery on ground of privilege, but fails to follow procedural requirements of FRCP 34(b),
minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances militate against
finding waiver of privilege. Ritacca v Abbott Labs. (2001, ND Ill) 203 FRD 332, 49 FR Serv 3d 1052.
80. --Timeliness
Incarcerated pro se litigant completes service of discovery responses at time he submits responses to prison
authorities for forwarding to party being served. Faile v Upjohn Co. (1993, CA9 Nev) 988 F2d 985, 93 CDOS 1929, 93
Daily Journal DAR 3473, 25 FR Serv 3d 155.
Where some documents were included within scope of Rule 34 order, it was no excuse for defendant which failed to
produce them for nearly 2 years that information contained in those documents was not "new", because defendant was
obligated to produce them. Fisher v Harris, Upham & Co. (1973, DC NY) 61 FRD 447, dismd without op (CA2 NY)
516 F2d 896.
Court would dismiss complaint where plaintiffs, under order to produce or otherwise object to request for production
and under order to appear for deposition, did not make objections in compliance with Rule 34(b) within time limit set by
order. Leve v Schering Corp. (1975, DC NJ) 73 FRD 537, affd without op (CA3 NJ) 556 F2d 567, cert den 434 US
833, 54 L Ed 2d 93, 98 S Ct 118.
Defendant's failure to file timely objections to plaintiff's request for production of documents constituted waiver of
objections. Perry v Golub (1976, ND Ala) 74 FRD 360, 22 FR Serv 2d 1020.
Court may, at its discretion, shorten time allowed to respond to discovery interrogatories and demands for documents
where information is readily available and claims of potential parties could soon be barred by statute of limitations.
Soler v G & U, Inc. (1980, SD NY) 86 FRD 524, 24 BNA WH Cas 999, 89 CCH LC P 33917, 30 FR Serv 2d 913.
Defendant's objections to motion to compel production of documents was waived where defendant failed to file
timely objections. Krewson v Quincy (1988, DC Mass) 120 FRD 6, 10 FR Serv 3d 1171.
Defendant was not entitled to defer response to plaintiff's request for production of his statement until after plaintiff's
deposition was taken since defendant neither objected to request within 30 days nor moved for protective order seeking
deferral of disclosure. Willard v Constellation Fishing Corp. (1991, DC Mass) 136 FRD 28.
Any ground not stated in timely objection to written document request is waived unless party's failure to object is
excused by court for good cause shown. Blumenthal v Drudge (1999, DC Dist Col) 186 FRD 236, 27 Media L R 2004.
When party fails to serve objections to document requests within time required, in absence of good cause or of
extension of time to do so, party has generally waived right to raise objections later. Coregis Ins. Co. v Baratta &
Fenerty, Ltd. (1999, ED Pa) 187 FRD 528.
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USCS Fed Rules Civ Proc R 34
Objection that information sought is privileged is waived if not timely stated, and it is within court's discretion to
determine whether privilege has been properly invoked. Coregis Ins. Co. v Baratta & Fenerty, Ltd. (1999, ED Pa) 187
FRD 528.
Failure to follow requirements of FRCP 26(b)(5) and 34(b) may result in waiver of work product protection.
Anderson v Hale (2001, ND Ill) 202 FRD 548.
Because corporation failed to assert timely objection to company's document request on confidentiality grounds, any
refusals to provide requested discovery based on alleged confidentiality of requested information for reasons of
commercial competitive disadvantage were waived by corporation. Cliffstar Corp. v Sunsweet Growers, Inc. (2003, WD
NY) 218 FRD 65.
81. Motion on objection or failure to respond
While it would have been better practice for plaintiff to have made written motion under Rule 34, proceedings in
judge's chambers could properly be regarded as including oral motion and order under Rule 34 for production of papers
sought, and supported imposition of sanctions under Rule 37(b) upon defendant's noncompliance, particularly where
defendant suffered no prejudice from absence of written motions. Jones v Uris Sales Corp. (1967, CA2 NY) 373 F2d
644, 10 FR Serv 2d 1034.
On motion for production of documents, moving party must disclose information concerning nature of contents of
documents desired. Piorkowski v Socony Vacuum Oil Co. (1940, DC Pa) 1 FRD 407.
In action for breach of contract and to compel defendant to permit inspection of its books, plaintiff's preliminary
motion for judgment on latter claim for relief was regarded as motion for production of documents. United Mercantile
Agencies v Silver Fleet Motor Express, Inc. (1941, DC Ky) 1 FRD 709.
Motion for production of documents is assimilable to mandatory injunction; it must designate documents with
particularity so that court granting motion and party against whom order is directed may know when compliance has
been had. United States v American Optical Co. (1942, DC NY) 2 FRD 534.
Where upon responding in writing to plaintiff's motion for defendant to make available for inspection and copy of
certain documents defendant signified his readiness to produce part of documents, plaintiff's motion would be regarded
as confessed as to such documents as defendant offered to produce. Walla v Chicago, B. & Q. R. Co. (1956, DC Neb)
19 FRD 352.
On motion to require production of documents and other matters, special circumstances must exist which suggest
that justice will be served by going beyond interrogatories and depositions. Endte v Hermes Export Corp. (1957, DC
NY) 20 FRD 162.
Where 3 motions for discovery were addressed to and received by court, but were simply requests that defendants
produce copies of certain tax returns and other documents, court would treat "motions" as requests upon defendant
served under Rule 34 and, accordingly, no action of court was necessary with regard thereto. Muncaster v Baptist
(1973, ND Ala) 367 F Supp 1120, 74-1 USTC P 9162, 33 AFTR 2d 74-459, affd without op (CA5 Ala) 507 F2d 1279,
reh den (CA5 Ala) 509 F2d 576 and cert den 423 US 849, 46 L Ed 2d 72, 96 S Ct 91.
Party objecting to discovery order failed to follow rule's procedure in clearly identifying individually privileged
documents, privilege claimed, date of communications, source of information, identity of person to whom
communication was made, nature and general content of document, and parties to whom each document was
disseminated. Taylor v Florida Atlantic University (1990, SD Fla) 132 FRD 304.
Where party fails to move for order compelling adversary to comply with request for production of documents, court
does not have authority to sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84
AFTR 2d 6063.
Court did not find good cause for non-party pilot association's failure to act timely in objecting to subpoena because
subpoena was not overbroad; two categories of subpoena at issue were narrowly drawn, seeking relevant information
within bounds of fair discovery. McCoy v Southwest Airlines Co. (2002, CD Cal) 211 FRD 381.
82. --Verification
Although it is generally agreed that better practice under Rule 34 is to support, by affidavit, statement of facts
showing need for judicial intervention, under some circumstances such affidavit is not indispensable. Goosman v A.
Duie Pyle, Inc. (1963, CA4 Va) 320 F2d 45, 7 FR Serv 2d 694, later app (CA4 Md) 336 F2d 151.
Motion for production of documents under Rule 34(b) may be verified in any reasonable manner which demonstrates
that material sought is relevant to issues and that there is some reason for enlisting power of court in obtaining
information. National Utility Service, Inc. v Northwestern Steel & Wire Co. (1970, CA7 Ill) 426 F2d 222, 14 FR Serv
2d 229.
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USCS Fed Rules Civ Proc R 34
Court in its discretion may permit discovery on unverified motions. National Utility Service, Inc. v Northwestern
Steel & Wire Co. (1970, CA7 Ill) 426 F2d 222, 14 FR Serv 2d 229; Steelman v United States Fidelity & Guaranty Co.
(1964, WD Mo) 35 FRD 120, 8 FR Serv 2d 33.21, Case 5; Rekeweg v Federal Mut. Ins. Co. (1961, ND Ind) 27 FRD
431, 4 FR Serv 2d 605 (disapproved on other grounds by McLellan v Mississippi Power & Light Co. (CA5 Miss) 526
F2d 870, 21 FR Serv 2d 343, vacated, in part on other grounds (CA5 Miss) 545 F2d 919 (superseded by statute as stated
in Wilson v Harris Trust & Sav. Bank (CA7 Ill) 777 F2d 1246, 1 BNA IER Cas 1759, 121 BNA LRRM 2241, CCH
Bankr L Rptr P 70868) and (disagreed with by multiple cases as stated in Traggis v St. Barbara's Greek Orthodox
Church (CA2 Conn) 851 F2d 584)).
Motion under this rule should be verified. Saxton v W. S. Askew Co. (1941, DC Ga) 38 F Supp 323, 4 CCH LC P
60535.
When motion is made under this rule good form requires verification of motion or supporting affidavits; however,
court in its discretion may permit discovery on unverified motions where relevance appears from pleadings. Taylor v
Atchison, T. & S. F. R. Co. (1962, WD Mo) 33 FRD 283, 7 FR Serv 2d 651, 7 FR Serv 2d 673.
Although motion was neither verified nor supported by affidavits, plaintiff's application for production of statement
he had given to employee of defendant would be granted. Steelman v United States Fidelity & Guaranty Co. (1964,
WD Mo) 35 FRD 120, 8 FR Serv 2d 33.21, Case 5.
83. --Burden of proof
While burden of showing materiality of information and ability to produce it rests on one seeking discovery, at
certain point burden of going forward with evidence may shift to party asserted to be in possession or control. Von Der
Heydt v Rogers (1958) 102 App DC 114, 251 F2d 17.
Under Rule 34, party from whom discovery is sought has burden of showing some sufficient reason why discovery
should not be allowed, once it has been determined that items sought are properly within scope of Rule 26(b).
Kozlowski v Sears, Roebuck & Co. (1976, DC Mass) 73 FRD 73, 22 FR Serv 2d 1008.
Plaintiff's mere assertion that his request is relevant was insufficient to overcome defendant's opposition brief giving
reasons why request was overbroad. Motton v Owens (1989, MD Pa) 128 FRD 72.
84. ----Existence of matter sought
Defendant's motion for permission to inspect and photograph model should be denied with leave to renew, in
absence of showing of existence of model. Schoenberg v Decorative Cabinet Corp. (1939, DC NY) 27 F Supp 802, 41
USPQ 573.
Production of certain documents in custody and control of defendant railroad was not subject to objection that
plaintiff had not shown such documents to be in existence where plaintiff showed they were ordinarily maintained by
railroads. McDowell Associates, Inc. v Pennsylvania Railroad (1957, DC NY) 20 FRD 219.
Motion for production of documents could not be granted where affidavit in support thereof did not show existence
of records. Wharton v Lybrand, Ross Bros. & Montgomery (1966, ED NY) 41 FRD 177, 10 FR Serv 2d 952.
85. Orders on motion
Defendant was entitled to specific rulings on its objections to production of documents in its possession. Christian
Echoes Nat. Ministry, Inc. v United States (1968, CA10 Okla) 404 F2d 1066, 69-1 USTC P 9232, 23 AFTR 2d 69-498.
On motion to produce, court would refuse to order records impounded when there was showing of present business
inconvenience and stipulation that they would be faithfully preserved pending investigation. Harris v Sunset Oil Co.
(1941, DC Wash) 2 FRD 93.
In view of serious sanctions for failure to comply with order for production of documents contained in Rule 37, it is
obvious that order should be explicit. United States v American Optical Co. (1942, DC NY) 2 FRD 534.
In creditors committee's fraud suit against debtor's officers, directors, and professional employees, court granted
committee's Fed. R. Civ. P. 37 motion to compel production (Fed. R. Civ. P. 34) of auditor's audit manual; any failure to
follow auditor's internal policies could be probative of scienter and, thus, was discoverable pursuant to Fed. R. Civ. P.
26. Official Unsecured Creditors Comm. of Media Vision Tech., Inc. v Jain (2003, ND Cal) 215 FRD 587.
86. --Courts' discretion
Court of appeals would not grant petition for writ of prohibition against district court, which had entered order for
production of photographs and papers, since issuance of order was discretionary with district court. Re Illinois C. R.
Co. (1951, CA5 Miss) 192 F2d 465.
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USCS Fed Rules Civ Proc R 34
Limiting discovery rights in within discretionary power of District Court and, absent abuse of discretion, will not be
disturbed by Court of Appeals. Greyhound Lines, Inc. v Miller (1968, CA8 Mo) 402 F2d 134, 12 FR Serv 2d 806.
There is broad discretion in trial court and it is unusual to find abuse of discretion in matters concerning discovery
and inspection. Swanner v United States (1969, CA5 Ala) 406 F2d 716, 12 FR Serv 2d 894, on remand (MD Ala) 309
F Supp 1183, 22 ALR Fed 895.
Court of Appeals' review is confined to determining whether District Court abused its discretion in discovery
matters. Montecatini Edison S. p. A. v E. I. Du Pont De Nemours & Co. (1970, CA3 Del) 434 F2d 70, 167 USPQ 577.
Timeliness in seeking discovery of documents is issue committed to sound discretion of trial court. Montecatini
Edison S. p. A. v E. I. Du Pont de Nemours & Co. (1970, CA3 Del) 434 F2d 70, 167 USPQ 577.
Protections and sanctions found in discovery rules are not absolute and contemplate use of judicial discretion.
Marshall v Ford Motor Co. (1971, CA10 Okla) 446 F2d 712.
Trial court has broad discretion to limit discovery. United States v Bell (1971, CA9 Nev) 448 F2d 40, 71-2 USTC P
9649, 28 AFTR 2d 71-5718.
Court did not abuse its discretion in denying corporation's request for Internal Revenue Service documents in IRS
summons enforcement proceeding where corporation failed to explore other available sources of information which
could have given court substantial additional information on which to base its exercise of discretion. John Does v
United States (1989, CA8 Minn) 866 F2d 1015, 89-1 USTC P 9159, 63 AFTR 2d 89-660.
Orders under this rule are in large measure discretionary with trial court and are founded upon facts, and court of
appeals will not disturb action of that court in respect to them, unless action was improvident and affected substantial
rights of parties. Carter v Baltimore & O. R. Co. (1945) 80 App DC 257, 152 F2d 129.
Rule 34 contemplates exercise of judgment by court, not mere automatic granting of motion; court's judgment is to
be moved by demonstration by moving party of its need, for purposes of trial, of document or paper sought. Martin v
Capital Transit Co. (1948) 83 App DC 239, 170 F2d 811.
Under Rule 34(b), trial judge has wide range of discretion in ruling on discovery and production of documents and
things for inspection, copying or photographing. Straughan v Barge MVL No. 802 (1968, SD Tex) 291 F Supp 282, 12
FR Serv 2d 836.
Discretion of District Court to grant discovery under Rule 34 is not absolute, but is controlled and governed not only
by statutory enactments and well-established rules of common law, but also by considerations of policy and of
necessity, propriety, and expediency in particular case. Vaughn v Chrysler Corp. (1969, WD Okla) 46 FRD 6, 13 FR
Serv 2d 932.
Under discovery rules as presently constituted, courts have broad discretion to decide what conditions should be
attached to discovery to ensure purposes of discovery are attained in particular case. Mitsui & Co. v Puerto Rico Water
Resources Authority (1978, DC Puerto Rico) 26 FR Serv 2d 377, adhered to (DC Puerto Rico) 26 FR Serv 2d 380, app
den (CA1 Puerto Rico) 26 FR Serv 2d 341.
Magistrate judge may, in course of supervising discovery, condition direction for expedited production of documents
upon temporary restriction barring counsel receiving papers from showing them to anyone else, including client, until
proper treatment of items is sorted out later; flexibility in managing expedited document discovery authorized by Rule
34(b) and similar provisions is crucial to workability of accelerated disclosures when needed, and deferment of disputes
concerning controversial potential uses of information is vital to immediate production for purposes that are not
disputed. Chambers v Capital Cities/ABC (1994, SD NY) 157 FRD 3.
Order granting motion to compel production of documents identified in discovery was appropriate for defendants'
failure to serve written response to request for production of documents and sanctions were appropriate even though
written response came before magistrate's order, where response was not provided until after plaintiff's motion to
compel was filed. Case v Unified Sch. Dist. No. 233 (1995, DC Kan) 162 FRD 147.
87. Enforcement of order; sanctions, generally
Sanctions may be applied for failure to produce documents if it appears that such failure was result of efforts to
obstruct examination and thereby impede true administration of justice. Moinester v Wilson & Co. (1940, DC NY) 1
FRD 247.
Redaction of videotapes in litigation is critical matter, and party's action of redacting tapes without disclosing fact of
redactions must be thoroughly condemned as violation of discovery rules. Food Lion v Capital Cities/ABC (1996, MD
NC) 165 FRD 454.
Because preservation of documents and their availability for production is essential to orderly and expeditious
disposition of litigation, document destruction impedes litigation process and merits imposition of sanctions. In re
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USCS Fed Rules Civ Proc R 34
Prudential Ins. Co. of Am. Sales Practices Litig. (1997, DC NJ) 169 FRD 598, 36 FR Serv 3d 767, findings of
fact/conclusions of law (1997, DC NJ) 1997 US Dist LEXIS 4049.
Where party fails to move for order compelling adversary to comply with request for production of documents, court
does not have authority to sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84
AFTR 2d 6063.
88. --Contempt
Grant of injunction restraining interference with survey pursuant to discovery order was improper in view of fact that
Rule 34 and Rule 37 prescribe process of discovery coupled with punishment by contempt proceedings. Humble Oil &
Refining Co. v Sun Oil Co. (1949, CA5 Tex) 175 F2d 670.
89. --Default judgment
Where record established that District Court orally ordered defendant to produce certain records, and unequivocally
showed notice to defendant that documents were to be produced, absence of written order did not preclude entry of
default judgment against defendant for failure to comply. Henry v Sneiders (1974, CA9 Wash) 490 F2d 315, 18 FR
Serv 2d 351, cert den 419 US 832, 42 L Ed 2d 57, 95 S Ct 55, reh den 419 US 1060, 42 L Ed 2d 657, 95 S Ct 644.
Default judgment on insurance agent's counterclaim as sanction against insurer for violation of discovery orders was
proper where agent's request for documents regarding renewal commissions made it clear he wanted data regarding
calculation of such commissions, not merely summaries of them, discovery period spanned one year, and even in face of
attorney's fee award insurer had not complied with discovery orders. Crown Life Ins. Co. v Craig (1993, CA7 Ill) 995
F2d 1376, 26 FR Serv 3d 113, reh den (CA7) 1993 US App LEXIS 15995.
In action by railroad for difference between transportation charges paid by export dealer at intrastate rates on grain
which was subsequently shipped in interstate and foreign commerce, and transportation charges at higher interstate rate,
judgment would be rendered in favor of plaintiff upon defendant's failure to produce records of movement of grain in
interstate or foreign commerce. Oregon-Washington R. & Nav. Co. v Strauss & Co. (1940, DC Or) 38 F Supp 229.
90. --Dismissal
Trial court did not abuse its discretion in dismissing fair labor action brought by secretary of labor for his refusal, on
the ground of privilege, to produce confidential statements taken by his investigators from certain employees of
defendants, where indentity of employees had been disclosed in pre-trial conference. Mitchell v Bass (1958, CA8 Ark)
252 F2d 513, 34 CCH LC P 71318.
In determining whether a dismissal is just under Rule 37 for noncompliance with order to produce under this rule,
provisions of Rule 37 dealing specifically with that problem should govern although Rule 41 does add its influence in
any consideration of power of district court to dismiss complaint otherwise than by reason of Rule 37. Societe
Internationale Pour Participations Industrielles et Commerciales S.A. v Brownell (1955) 96 App DC 232, 225 F2d 532,
cert den 350 US 937, 100 L Ed 818, 76 S Ct 302, reh den 350 US 976, 100 L Ed 846, 76 S Ct 430.
Power to dismiss is not dependent wholly upon terms of Rule 37 or Rule 41 for apart from dismissal by authority of
specific rule of court or statute, court has inherent power to dismiss suit when it is established that party plaintiff has
failed to comply with order of court issued pursuant to its rules. Societe Internationale Pour Participations
Industrielles et Commerciales S.A. v Brownell (1955) 96 App DC 232, 225 F2d 532, cert den 350 US 937, 100 L Ed
818, 76 S Ct 302, reh den 350 US 976, 100 L Ed 846, 76 S Ct 430.
91. --Fees and costs
Fact that opposing party will have to go to great labor and expense in order to comply with order for discovery is not
ground for denial of motion. United States v Schine Chain Theatres, Inc. (1942, DC NY) 2 FRD 425.
Sanction to be assessed against defendant for bad faith concealment of subpoenaed reports and documents, done for
sole purpose of delaying final resolution of controversy, is sum which fairly reimburses plaintiffs for their expenses and
reasonably compensates them for attorney fees. United States v Reserve Mining Co. (1976, DC Minn) 412 F Supp 705,
21 FR Serv 2d 796, 6 ELR 20481, later proceeding (DC Minn) 417 F Supp 789, 6 ELR 20628, affd, cause remanded
(CA8 Minn) 543 F2d 1210, 7 ELR 20051, later proceeding (Minn) 267 NW2d 720, 8 ELR 20404.
In suit for patent infringement plaintiff will not be compelled to bear attorneys' fees where plaintiff is unable to
produce requested documents consisting of advertisements, articles, descriptions, and other documents regarding
machinery in question because documents were printed or published many years ago, printed or published in several
countries, and where plaintiff is not guilty of bad faith in its failure to provide such answers, admissions and documents
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USCS Fed Rules Civ Proc R 34
as promptly as court would like. Canron, Inc. v Plasser American Corp. (1978, ED Va) 474 F Supp 1010, 203 USPQ
440, affd (CA4 Va) 609 F2d 1075, 203 USPQ 641, cert den 446 US 965, 64 L Ed 2d 824, 100 S Ct 2942.
Payments made with respect to examination of certain machine-readable documents produced by defendants may be
taxed as costs where interpretation of these documents, which pertain to defendants' historical employment practices,
significantly aided counsel and court in prosecuton of various aspects of case. Waters v Heublein, Inc. (1979, ND Cal)
485 F Supp 110, 23 BNA FEP Cas 359, 29 FR Serv 2d 210.
Parties who, faced with request to inspect certain documents, took it upon themselves, without notice and at
considerable expense, to produce copies of these documents in substantially altered form will not be permitted to assess
costs of such alterations against requesting party for services not asked for and which could hardly have been
anticipated. Ritt v Thriving Enterprises (1983, ED Pa) 14 Fed Rules Evid Serv 1647, 37 FR Serv 2d 1159.
Plaintiff's attorney must pay $ 1,000 or defendant's reasonable expenses and attorney's fees in bringing sanctions
motion, and case is deferred until new co-counsel for plaintiff is chosen and appears, where attorney took job
announcement from bulletin board before exiting defendant's plant after taking depositions there, copied it, and when
confronted about it, lied about already having "dropped it back in mail" to defendant's counsel, because this was not first
confrontation between counsel in this case, and misappropriating documents from opponent or its lawyers violates
FRCP 34(b), which requires that request for production of documents "shall" be made by serving request on opposing
counsel. Speckman v 3M (1997, DC Neb) 7 F Supp 2d 1030.
92. Segregation of documents
Option afforded by provision of Rule 34(b) that party who produces documents for inspection shall produce them as
they are kept in ordinary course of business or shall segregate them to correspond with categories in request, does not
belong exclusively to party responding to request; court may order segregation according to terms of document request
in antitrust price-fixing and bid-rigging case where plaintiffs legitimately fear that defendants' unwillingness to
segregate documents which, if they exist, would reflect payoffs, masks desire to obscure facts. Board of Education v
Admiral Heating & Ventilating, Inc. (1984, ND Ill) 104 FRD 23, 1985-1 CCH Trade Cases P 66420, 40 FR Serv 2d
638.
Because many discovery requests, and responses thereto, can be used to harass opposing parties or to increase cost of
litigation, FRCP 34(b) places obligation on responding party to organize and label documents which are produced for
inspection. Stiller v Arnold (1996, ND Ind) 167 FRD 68.
93. Time and place of inspection
Trial court has discretion to order one party to produce its records for another party during discovery but in certain
situations, court may force requesting party to inspect documents at convenience of party who possesses them; such is
the case when requested material is so voluminous that copying and transporting it would prove unduly burdensome and
oppressive or where distance between parties is great. Compagnie des Bauxities de Guinea v Insurance Co. of North
America (1981, CA3 Pa) 651 F2d 877, 31 FR Serv 2d 937, affd 456 US 694, 72 L Ed 2d 492, 102 S Ct 2099, 34 FR
Serv 2d 1.
Where court ordered production of documents, it would direct that order submitted by counsel in accordance with
opinion specify time and place and manner of making inspection. Rosenblum v Dingfelder (1939, DC NY) 1 FRD 179.
Production of documents may be ordered, specifying place of inspection and by whom cost of transportation shall be
paid, if counsel fail to reach agreement at pretrial conference. Fairwater Transp. Co. v Chris-Craft Corp. (1940, DC
NY) 1 FRD 509.
Compliance by defendants may be at their respective places of business during reasonable office hours or at such
other places and times as might be mutually agreeable to parties interested. Harris v Sunset Oil Co. (1941, DC Wash) 2
FRD 93.
In ruling on motion under Rule 34 for production of documents by certain defendants, court would require such
production to be made at such place or places as might be mutually agreed upon between parties, or in default of such
agreement, in federal building 20 days after date of order. Hirshhorn v Mine Safety Appliances Co. (1948, DC Pa) 8
FRD 11, 76 USPQ 526.
Court would suggest that before orders were prepared to carry out is decision ordering production of documents,
counsel could confer in effort to agree upon time and place, and working time schedule for examination, and if they
could agree court would gladly include their agreement in order. Warner Bros. Picture Distributing Corp. v Monroe
(1955, DC Neb) 18 FRD 71.
Pretrial discovery order under Rule 34 was defective in failing to specify time and place for production, inspection,
and copying of books and papers, but error was overcome where producing party permitted inspection to be carried on
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USCS Fed Rules Civ Proc R 34
at its place of business. Securities & Exchange Com. v Los Angeles Trust Deed & Mortg. Exchange (1959, SD Cal) 24
FRD 460, 2 FR Serv 2d 624.
Counsel for parties would be afforded opportunity to confer for purpose of working out agreed form of order that
would cover, in accordance with counsel's convenience, practical aspects of where various documents and papers were
to be inspected, who would be authorized to make inspection, who should be present at inspection, exact dates on which
inspection would take place, how particular documents were to be designated for copying, who was to do copying, and
all other practical details. Twin City Federal Sav. & Loan Asso. v American Title Ins. Co. (1962, WD Mo) 31 FRD 526,
6 FR Serv 2d 683.
Rule does not require party to allow inspection by all other parties simultaneously and there is no reasoned basis for
precluding responding party from setting inspection guidelines on procedures to be followed by inspecting parties, so
long as each has opportunity to inspect all documents which have been requested by it or by others. Federal Sav. &
Loan Ins. Corp. v Village Creek Joint Venture (1989, ND Tex) 130 FRD 357, 16 FR Serv 3d 927.
Time and place, under pretrial discovery procedure, for inspection and copying of opposing litigant's books, records,
and papers. 83 ALR2d 302.
94. Other procedural matters
In case in which defendants are unable to produce documents requested by plaintiffs because they are being held by
and being treated as sealed grand jury materials by state court in which defendants were prosecuted by state in earlier
proceeding, preferred procedure is for District Court, upon plaintiffs' motion, to order defendants to request state court
to release documents so that defendants can comply with their discovery obligations in federal civil proceeding, and less
desirable procedure is for plaintiffs to apply directly to state court. United States ex rel. Woodward v Tyan (1985,
CA10 Colo) 757 F2d 1085, 1 FR Serv 3d 246, on reh, en banc (CA10 Colo) 776 F2d 250, 3 FR Serv 3d 105, later
proceeding (CA10 Colo) 797 F2d 888.
In suit by tobacco shop owner for return of seized items District Court erred in denying owner's motion to compel
discovery of tape recording of conversation made by police prior to seizure on grounds of owner's failure to adhere to
local court rules, since situation was clearly governed by federal rules; owner needed to go no further than his initial
request for taped recording which was clearly relevant. Wilson v Zanesville (1992, CA6 Ohio) 954 F2d 349, 21 FR
Serv 3d 1127.
Order granting post-judgment discovery in aid of movant's efforts to collect judgment is not interlocutorily
appealable, rather may be appealed with judgment that concludes collection proceeding, although order denying such
discovery is appealable because no other route for obtaining appellate review is available. Central States, Southeast &
Southwest Areas Pension Fund v Express Freight Lines, Inc. (1992, CA7 Ill) 971 F2d 5.
Trial court did not abuse its discretion in granting summary judgment to company on businessman's defamation
claim against it, even though businessman claimed that it granted summary judgment before discovery was completed,
as record showed that businessman served discovery requests after discovery deadline; however, even if businessman
had served them several days earlier, before discovery deadline, no abuse of discretion would have occurred in granting
summary judgment motion since discovery requests had to be served at least 30 days prior to completion of discovery
deadline. Thomas v Pacificorp (2003, CA10 Utah) 324 F3d 1176, 60 Fed Rules Evid Serv 1554.
Question of whether dismissal of state court action would bar action in district court on principles of res judicata or
collateral estoppel could be decided by motion made by defendant for summary judgment or for stay of all proceedings,
and in absence of either of such motions plaintiffs' motion for order requiring defendants to produce and to permit
inspection and copying of documents could not be denied. Brown v Bullock (1961, SD NY) 29 FRD 184, 5 FR Serv 2d
574.
Protective order requiring Equal Employment Opportunity Commission to disclose scope of its administrative
investigation, before court ruled on EEOC's motion to compel discovery under Rule 34, would issue where expense and
burden placed on defendant by Rule 34 request might be obviated if court were to rule against EEOC on defendant's
allegation that EEOC failed to make good faith effort to investigate charge. EEOC v Hickey-Mitchell Co. (1973, ED
Mo) 372 F Supp 1117, 7 BNA FEP Cas 134, 7 BNA FEP Cas 136, 6 CCH EPD P 8962, 7 CCH EPD P 9063.
FRCP 34, which allows plaintiff to inspect and copy relevant documents, does not require responding party to pay
for copying costs of voluminous materials. Obiajulu v City of Rochester, Dep't of Law (1996, WD NY) 166 FRD 293.
Although FRCP 34, which governs production of documents and things, does not provide any language with respect
to specificity and waiver of objections, which FRCP 33, which governs interrogatories, does, no reason exists to
distinguish between interrogatories and requests for production as to these matters. Pulsecard, Inc. v Discover Card
Servs. (1996, DC Kan) 168 FRD 295.
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USCS Fed Rules Civ Proc R 34
Although evidentiary hearing may be required when court imposes sanctions under its inherent powers alone,
hearing is not required for sanctions imposed under FRCP 26(g), 33(b), 34(b) and 37(a)(4), and 28 USCS § 1927.
Medical Billing v Medical Mgmt. Sciences (1996, ND Ohio) 169 FRD 325.
Where party fails to move for order compelling adversary to comply with request for production of documents, court
does not have authority to sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84
AFTR 2d 6063.
Court has discretion to order expedited production of documents if appropriate circumstances exist. Yokohama Tire
Corp. v Dealers Tire Supply, Inc. (2001, DC Ariz) 202 FRD 612.
Subpoena seeking documents from third party under FRCP 45(a)(1)(C) constitutes "discovery" within meaning of
FRCP 26 and 34, and therefore, is subject to scheduling order's general discovery deadlines. Dreyer v GACS Inc. (2001,
ND Ind) 204 FRD 120.
95. --Evidentiary matters
Where defendant refused to produce records requested by plaintiff after being ordered to do so by trial court,
defendant could not thereafter argue that plaintiff lacked sufficient evidence with which to prove his case and that
summary judgment should have been awarded against plaintiff, because any insufficiency of plaintiff's evidence was
direct result of defendant's refusal to comply with legitimate request for discovery. Henry v Sneiders (1974, CA9
Wash) 490 F2d 315, 18 FR Serv 2d 351, cert den 419 US 832, 42 L Ed 2d 57, 95 S Ct 55, reh den 419 US 1060, 42 L Ed
2d 657, 95 S Ct 644.
In action to review termination of plaintiff's employment with defense department, federal district court did not have
authority to order civil service commission's record to be supplemented by particular documents specified by plaintiff in
motion under this rule, since review by district court was limited to record below. Daub v United States (1964, ED NY)
227 F Supp 941.
Each party is free to prepare and perform tests of tangible things in manner he deems best, but he cannot make
evidentiary use of party's refusal to perform same tests. Sperberg v Firestone Tire & Rubber Co. (1973, ND Ohio) 61
FRD 80, 18 FR Serv 2d 1057.
Although original source documents were not provided to defendants in accordance with their Rule 34 document
production request, plaintiff's exhibit which purports to summarize those documents is not thereby inadmissible, where
nothing in record indicates that defendants ever filed motion to compel plaintiff to respond and they therefore have
waived their evidentiary objection, even if by inadvertence. White Industries, Inc. v Cessna Aircraft Co. (1985, WD
Mo) 611 F Supp 1049, 19 Fed Rules Evid Serv 321, later proceeding (WD Mo) 657 F Supp 687, affd (CA8 Mo) 845
F2d 1497, 1988-1 CCH Trade Cases P 67992, cert den (US) 102 L Ed 2d 118, 109 S Ct 146.
IV. PERSONS NOT PARTIES
96. Generally
In condemnation suit brought by United States, trial court does not abuse its discretion in denying discovery under
Rule 34 of property appraisals rendered by government's expert appraisal witness on behalf of private parties owning
land within vicinity of project area who are nonparties to instant suit. United States v 25.02 Acres of Land (1974, CA10
Colo) 495 F2d 1398, 18 FR Serv 2d 1043.
Rule 34 is clear that, although 1970 revision makes information in computer memory storage banks discoverable,
Rule still applies only to parties in conventional sense. Re Penn Cent. Secur. Litigation (1977, CA3 Pa) 560 F2d 1138,
23 FR Serv 2d 1242.
Rule 34 is of no force or effect with reference to non-parties such as brokerage houses who cannot be required to pay
expenses of compiling lists of names and addresses of owners of securities in class action. Re Franklin Nat. Bank
Secur. Litigation (1978, CA2 NY) 574 F2d 662, CCH Fed Secur L Rep P 96373, 25 FR Serv 2d 1, on reh (CA2 NY) 599
F2d 1109, 27 FR Serv 2d 563.
While Rule 34 applies only to parties to lawsuit, subpoena under Rule 45 may be served upon both party and
non-party witnesses. Continental Coatings Corp. v Metco, Inc. (1970, ND Ill) 50 FRD 382, 164 USPQ 499, 13 FR
Serv 2d 1125.
Rule 34 anticipates production of documents from nonparties, accomplished by subpoena duces tecum. Maryville
Academy v Loeb Rhoades & Co. (1978, ND Ill) CCH Fed Secur L Rep P 96782, 27 FR Serv 2d 1077.
Rule 34 does not authorize independent action for discovery against nonparties to action, but it is clear from
interpretation that independent discovery actions are not precluded under other procedural rules or under common law.
Home Ins. Co. v First Nat. Bank (1980, ND Ga) 89 FRD 485, 32 FR Serv 2d 315, 62 ALR Fed 928.
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USCS Fed Rules Civ Proc R 34
Independent action may be maintained under Rule 34(c) to obtain bill of discovery against nonparty in court with
compentent subject matter jurisdiction. Huynh v Werke (1981, SD Ohio) 90 FRD 447.
Rule 34 cannot be used to seek orders directing nonparty corporations to produce documents since it provides only
for production upon request and not by motion. Hilgenberg v Neth (1981, ED Tenn) 93 FRD 325, 34 FR Serv 2d 801.
Public interest group intervening in silicone breast implant products liability suit was not entitled to have vacated
protective order which was entered upon stipulation of parties allowing free wheeling document inspection to expedite
discovery process involving thousands of documents, since none of documents had been filed with court and had not
passed threshold tests of relevance and admissibility, hence none were discovery documents subject to disclosure.
Mirak v McGhan Medical Corp. (1992, DC Mass) 142 FRD 34.
In class action by plaintiff health care consumers for violation of federal Medicaid Act, magistrate granted
consumers' motion to compel production of documents having private information regarding class members by both
parties defendant (state executive officials) and nonparties; documents sought from non-defendant entities were within
control of principal state agency involved, as principal agency directly or indirectly delegated delivery of services to
such entities and had right to examine and copy information maintained by them. Rosie D. v Romney (2003, DC Mass)
256 F Supp 2d 115, 55 FR Serv 3d 883.
Independent action against nonparty for production of documents and things or permission to enter upon land (Rule
34(c) of Federal Rules of Civil Procedure). 62 ALR Fed 935.
Subpoena duces tecum for production of items held by a foreign custodian in another country. 82 ALR2d 1403.