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Rule 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering Onto Land, for Inspection and Other Purposes

May 14, 2021 | Civil Procedure, Ohio

(A) Scope. Subject to the scope of discovery provisions of Civ. R. 26(B), any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the requesting party’s behalf (1) to inspect and copy any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained that are in the possession, custody, or control of the party upon whom the request is served; (2) to inspect and copy, test, or sample any tangible things that are in the possession, custody, or control of the party upon whom the request is served; (3) to enter 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 on the property.
(B) Procedure. Without leave of court, the request may be served upon the plaintiff after commencement of the action and upon any other party after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced, but may not require the production of the same information in more than one form. The party serving the request shall serve an electronic copy of the request on a shareable medium and in an editable format by electronic mail, or by other means agreed to by the parties. A party who is unable to provide an electronic copy of the interrogatories may seek leave of court to be relieved of this requirement.

(1) The party upon whom the request is served shall serve a written response within a period designated in the request that is not less than twenty-eight days after the service of the request or within a shorter or longer time as the court may allow. With respect to each item or category, the response shall state that inspection and related activities will be permitted as requested, unless it is objected to, including an objection to the requested form or forms for producing electronically stored information, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Civ. R. 37 with respect to any objection to or other failure to respond to the request or any part of the request, or any failure to permit inspection as requested.
(2) A party who produces documents for inspection shall, at its option, produce them as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request.
(3) If a request does not specify the form or forms for producing electronically stored information, a responding party may produce the information in a form or forms in which the information is ordinarily maintained if that form is reasonably useable, or in any form that is reasonably useable. Unless ordered by the court or agreed to by the parties, a party need not produce the same electronically stored information in more than one form.
(C) Persons not parties. Subject to the scope of discovery provisions of Civ. R. 26(B) and 45(F), a person not a party to the action may be compelled to produce documents, electronically stored information or tangible things or to submit to an inspection as provided in Civ. R. 45.
(D) Prior to filing of action.

(1) Subject to the scope of discovery provisions of Civ. R. 26(B) and 45(F), a person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall make reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought. The petition shall be captioned in the name of the person seeking discovery and be filed in the court of common pleas in the county in which the person from whom the discovery is sought resides, the person’s principal place of business is located, or the potential action may be filed. The petition shall include all of the following:

(a) A statement of the subject matter of the petitioner’s potential cause of action and the petitioner’s interest in the potential cause of action;
(b) A statement of the efforts made by the petitioner to obtain voluntarily the information from the person from whom the discovery is sought;
(c) A statement or description of the information sought to be discovered with reasonable particularity;
(d) The names and addresses, if known, of any person the petitioner expects will be an adverse party in the potential action;
(e) A request that the court issue an order authorizing the petitioner to obtain the discovery.
(2) The petition shall be served upon the person from whom discovery is sought and, if known, any person the petitioner expects will be an adverse party in the potential action, by one of the methods provided in these rules for service of summons.
(3) The court shall issue an order authorizing the petitioner to obtain the requested discovery if the court finds all of the following:

(a) The discovery is necessary to ascertain the identity of a potential adverse party;
(b) The petitioner is otherwise unable to bring the contemplated action;
(c) The petitioner made reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.

Ohio. Civ.R. 34

Effective:July 1, 1970; amended effective July 1, 1993;July 1, 1994;July 1, 2005; amended effective July 1, 2008;July 1, 2017; amended April 24, 2019, effective July 1, 2019.

Proposed Staff Notes (2019 Amendment)

Division (B)

Division (B) of the rule is amended to include a requirement that the party serving this form of discovery requests include an electronic copy in a word-processing format. This requirement is already found in Civ.R. 33(A) and Civ.R. 36(A) for interrogatories and requests for admissions, respectively. Its inclusion here recognizes the reality that practitioners typically respond to this form of discovery requests in writing in addition to any accompanying responsive materials.

Staff Note (July 1, 2017 Amendment)

Civ.R. 34(B).

Service of requests for production. The rule is amended to permit service of requests for production on parties other than the plaintiff only after service of the summons and complaint upon that party and to disallow service of requests for production with service of the summons and complaint.

Staff Notes (July 1, 2008 Amendment)

The title of this rule is changed to reflect its coverage of electronically stored information discovery.

The amendment to Civ. R. 34(A) clarifies that discovery of electronically stored information is expressly authorized and regulated by this rule.

Amendments to the first paragraph of Civ. R. 34(B) allow the requesting party to specify the form of forms in which electronically stored information should be produced. For example, the party propounding discovery seeking electronically stored information could request that a party’s internal memorandums on a particular subject be produced in WordTM format, while financial records be provided in an ExcelTM spreadsheet format or other commonly used format for financial information. This provision also specifies that the requesting party cannot demand that the respondent provide the same information in more than one electronic format. If a party believes that the form or forms specified by an opponent is unduly burdensome or expensive, the party can object to the discovery under Rule 34(B)(1) and then negotiate a different, mutually acceptable form with the opponent or seek relief from the court under Rule 26(B)(4).

The remaining text of existing Civ. R. 34(B) is broken into subparts (1) and (2). This is solely a stylistic change intended to make the material more accessible.

Civ. R. 34(B)(1) requires the party responding to a request to specifically articulate its objection to the form of production of electronically stored information that the opponent has requested. It also requires a responding party to identify the form in which electronically stored information will be produced if the requesting party has not specified the format.

Civ. R. 34(B)(3) applies when a party does not specify the form in which electronically stored information should be produced; in that situation the responding party has the option of producing the materials in the form in which the information is ordinarily maintained or another form provided that the form produced is reasonable. This section also clarifies that the respondent only has to provide electronically stored information in one format unless the court orders or the parties agree to a different arrangement.Civ. R. 34(B)(3) is added to allow production of electronically stored information in more than one format if agreed to by the parties or ordered by the court.

Civ. R. 34(C) clarifies that discovery of electronically stored information from nonparties is governed by Rule 45.

Staff Note (July 1, 2005 Amendment)

Rule 34(C) Persons not parties

Civ. R. 34(C) is amended to move a reference to notice of issuance of a subpoena directed to a nonparty to Civ. R. 45(A)(3). The amendments to Civ. R. 34 and 45 place all provisions requiring notice of issuance of most types of subpoena directed to nonparties appear in Civ. R. 45(A)(3) rather than being split between Civ. R. 34(C) and Civ. R. 45(A)(3). The prior arrangement made it easy to overlook the notice provisions of Civ. R. 34(C). See, e.g., Neftzer v. Neftzer, 140 Ohio App.3d 618, 621 (2000).