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Rule 34 – Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

May 14, 2021 | Civil Procedure, Vermont

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained -translated, if necessary, by the respondent into reasonably usable form, or to inspect and copy, test, or sample any designated 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 may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or 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.

The party upon whom a request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 42 days after service of the summons and complaint upon that defendant. Any Superior Judge may allow a shorter or longer time. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection, provided that, on a showing by the requesting party of a reasonable need, any Superior Judge may order inspection. An objection must state whether any responsive materials are being withheld on the basis of that objection. If objection is made to part of an item or category, the objection must specify the part and permit inspection of the rest. The request being addressed shall be reproduced before the response. 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 Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

Unless the parties otherwise agree, or the court otherwise orders:

(1) 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;
(2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(3) a party need not produce the same electronically stored information in more than one form.

Vt. R. Civ. P. 34

Amended Dec. 28, 1981, eff. March 1, 1982; Jan. 9, 1985, eff. March 15, 1985; Nov. 4, 1994, eff. March 1, 1995; May 7, 2009, eff. July 6, 2009; July 14, 2017, eff. Sept. 18, 2017; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended October 6, 2020, eff. December 7, 2020.

Reporter’s Notes-2020 Amendment

Rule 34(b) is amended to add language from Federal Rule of Civil Procedure 34(b)(2)(B) permitting the production of copies of requested material, rather than their inspection. The language was added to the Federal Rule in 2015 “to reflect the common practice.” See Federal Advisory Committee’s Notes to 2015 Amendment. The present amendment, however, departs from the Federal Rule by providing that the requesting party may obtain inspection of the originals on a showing of “a reasonable need”-for example, a legibility issue not resolvable in a copy.

Reporter’s Notes-2018 Amendment

Rule 34(b) is amended to change its 45-day time period to 42 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes-2017 Amendment

Rule 34(b) is amended to adapt portions of amendments to F.R.C.P. 34(b)(2) effective December 1,2015. The amendment requires the grounds for objection to be stated specifically consistent with the requirement that an objection has to state whether materials are being withheld in order to “facilitate an informed discussion of the objection.” Federal Advisory Committee’s Note to 2015 amendments ofF.R.C.P. 34(b)(2)(C). A provision in the federal rule permitting a party to produce copies of documents or electronically stored information in lieu of inspection has not been adopted because it permits the party to avoid actual inspection in a situation where actual inspection might be important.