Middle District Discovery (handbook)

Middle District Discovery — the court's civil discovery practice handbook

sha256 4ef3a67acbc69df7c8c35a8b8b3cf722… · retrieved 7/11/2026, 6:32:06 PM · Official-source-direct — the issuing court's own published rules PDF · verified 7/11/2026 by dfed.2-sweep: official-source-direct — the issuing district court's own published Local Rules / handbook PDF, heading-anchored verbatim slice

M IDDLE 	D ISTRICT 	D ISCOVERY
A HANDBOOK ON CIVIL DISCOVERY PRACTICE
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
F EBRUARY 1, 2021

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C ONTENTS
Introduction 	iii
I. 	Discovery in General 	1
A. 	C OURTESY AND C OOPERATION A MONG C OUNSEL 	1
B. 	D UTY OF DISCLOSURE 	2
C. 	F ILING OF DISCOVERY MATERIALS AND O THER DISCOVERY C ONSIDERATIONS 	3
D. 	S UPPLEMENTING A NSWERS 	4
E. 	TIMELINESS AND S ANCTIONS 	4
F. 	C OMPLETION OF DISCOVERY 	5
II. 	Depositions 	6
A. 	GENERAL POLICY AND PRACTICE 	6
B. 	O BJECTIONS 	9
C. 	PRODUCTION OF D OCUMENTS AT D EPOSITIONS 	11
D. 	N ON -S TENOGRAPHIC R ECORDING OF DEPOSITIONS 	11
E. 	EXPERTS 	12
III. 	Production of Documents 	13
A. 	PREPARATION AND INTERPRETATION OF R EQUESTS FOR D OCUMENTS 	13
B. 	PROCEDURES GOVERNING MANNER OF PRODUCTION 	18
IV. 	Interrogatories 	21
A. 	PREPARATION AND A NSWERING OF INTERROGATORIES 	21
B. 	O BJECTIONS , PRIVILEGE , AND R ESPONSES 	22
C. 	O THER INTERROGATORY ISSUES 	23
V. 	Subpoenas 	25
A. 	GENERAL 	25
B. 	C ONTENTS OF S UBPOENA 	26
C. 	O THER REQUIREMENTS FOR S ERVICE OF S UBPOENA 	26
VI. 	Privilege 	27
A. 	INVOCATION OF PRIVILEGE OR O THER PROTECTION 	27
B. 	PROCEDURE FOR RESOLVING C LAIMS OF PRIVILEGE OR O THER
PROTECTION A GAINST DISCOVERY WITH THE C OURT 	30
C. 	W AIVER OF PRIVILEGE 	31
VII. 	Motions for a Protective Order or to Quash 	31
A. 	EFFECT OF FILING A MOTION FOR A PROTECTIVE O RDER 	31
B. 	MOTION FOR S TIPULATED PROTECTIVE O RDER 	32
VIII. 	E-Discovery 	32
A. 	GENERAL 	32
B. 	PRESERVATION 	33
C. 	PROPORTIONALITY 	33
D. 	ESI C ONFERENCE 	33
E. 	PROCEDURE 	35
F. 	R ESOLVING D ISCOVERY DISPUTES 	36

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G. 	D ISCOVERY FROM N ON -PARTIES 	36
H. 	METADATA 	37

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I NTRODUCTION
The Federal Rules of Civil Procedure, the Local Rules of the
Middle District of Florida, and existing case law cover only some
aspects of civil discovery practice. Many of the gaps have been filled by
the actual practice of trial attorneys and, over the years, a custom and
usage has developed in this district in frequently recurring discovery
situations. Originally developed by a group of trial attorneys, this
handbook on civil discovery practice in the United States District
Court, Middle District of Florida, updated in 2001, 2015, and 2021,
attempts to supplement the rules and decisions by capturing this custom
and practice. This handbook is neither substantive law nor inflexible
rule; it is an expression of generally acceptable discovery practice in the
Middle District. It is revised only periodically and should not be relied
on as an up-to-date reference regarding the Federal Rules of Civil
Procedure, the Local Rules for the Middle District of Florida, or
existing case law. Judges and attorneys practicing in the Middle District
should regard the handbook as highly persuasive in addressing
discovery issues. Parties who represent themselves (“pro se”) will find
the handbook useful as they are also subject to the rules and court
orders and may be sanctioned for non-compliance. Judges may impose
specific discovery requirements in civil cases, by standing order or casespecific order. This handbook does not displace those requirements, but
provides a general overview of discovery practice in the Middle District
of Florida.
—The Judges of the Middle District
Cite this text as: Middle District Discovery (2021) at Section __.
The Local Rules for the Middle District of Florida can be found on
the Court’s website www.flmd.uscourts.gov.

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I. 	Discovery in General
A. Courtesy and Cooperation Among Counsel
C OURTESY. Discovery in this district should be practiced
with a spirit of cooperation and civility. The district’s
attorneys and the Court are justifiably proud of the courteous
practice that is traditional in the Middle District.
C ERTIFICATE OF GOOD F AITH C ONFERENCE . Before filing
any motion in a civil action, except a motion for injunctive
relief, for judgment on the pleadings, for summary judgment,
or to certify a class, the moving party must confer with
counsel for the opposing party in a good faith effort to resolve
the motion. At the end of the motion and under the heading
“Local Rule 3.01(g) Certification,” the movant:
(a) must certify that the movant has conferred with the
opposing party,
(b) must state whether the parties agree on the resolution
of all or part of the motion, and
(c) if the motion is opposed, must explain the means by
which the conference occurred.
Local Rule, 3.01(g), Middle District of Florida. If the
opposing party is unavailable before the motion’s filing, the
movant should say so in the certification, explain the means
by which and when the attempts at conferral occurred, and
comply with Local Rule 3.01(g)(3). If the presiding judge
deems the conferral or attempt at conferral insufficient, the
motion may be denied. Some judges—often in their Case
Management and Scheduling Order—require parties to
confer in person, by telephone, or by video conference, not
just in writing. If the interested parties agree to all or part of
the relief sought in any motion, the caption of the motion

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must include the word “unopposed.” Local Rules 1.09 and
3.01(a), Middle District of Florida.
The term “confer” in Rule 3.01(g) means a substantive
discussion. Counsel must respond promptly to inquiries and
communication from opposing counsel. Many potential
discovery disputes are resolved (or the differences narrowed
or clarified) when counsel confer in good faith. Rule 3.01(g)
is strictly enforced. A motion that does not comply with the
rule may be summarily denied.
S CHEDULING. An attorney shall reasonably attempt to
accommodate the schedules of opposing counsel, parties, and
witnesses in scheduling discovery.
S TIPULATIONS . Unless contrary to Rule 29, Federal Rules
of Civil Procedure, the parties may stipulate in writing in
accordance with Local Rule 3.05, Middle District of Florida,
to alter, amend, or modify any practice with respect to
discovery. However, any such stipulations do not relieve the
parties from compliance with court orders, absent approval of
the Court.
W ITHDRAWAL OF M OTIONS . If counsel resolve their
differences and render a pending discovery motion moot, the
moving party should immediately file a notice of withdrawal
of the motion in order to avoid unnecessary judicial labor.
Local Rule 3.09(a), Middle District of Florida.
B. Duty of Disclosure
Attorneys are responsible for complying with the provisions
of Rule 26(a), Federal Rules of Civil Procedure, regarding
required disclosures unless modified by Court order or Local
Rule.

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C. Filing of Discovery Materials and Other Discovery
Considerations
G ENERAL RULE G OVERNING F ILING OF D ISCOVERY
M ATERIALS . Copies of written interrogatories, answers and
objections to interrogatories, notices of oral depositions,
transcripts of oral depositions, requests for the production of
documents and other things, responses to requests for
production, matters disclosed pursuant to Rule 26(a)(1),
Federal Rules of Civil Procedure, requests for admissions,
and responses to requests for admissions shall not be filed
with the Court as a matter of course. Discovery materials are
filed only in limited circumstances, including if ordered by
the Court, if necessary to the presentation or defense of a
motion, or if required by law or rule.
Correspondence exchanged during the course of litigation
either between opposing counsel or between counsel for one
party and an unrepresented party should be filed with the
Court only to comply with an order of the Court or when
necessary to the presentation and consideration of a motion
and only when the filing of traditional discovery material will
clearly not suffice for the purpose. Counsel should carefully
redact correspondence to exclude irrelevant and prejudicial
material, e.g., settlement discussions.
F ILING D ISCOVERY OR O THER PAPERS UNDER S EAL . In
certain rare circumstances involving trade secrets or other
confidential information, the Court may order the filing
under seal of discovery in order to preserve the integrity of
the information. However, the Court wishes to minimize the
number of documents filed under seal. Applicable precedent
allows the Court to file documents under seal only in certain
limited circumstances. Therefore, no paper may be filed
under seal without prior approval by the Court in accordance
with Local Rule 1.11, and upon the demonstration of a
sufficient legal and factual basis.

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T AILORING D ISCOVERY R EQUESTS TO THE N EEDS OF THE
C ASE . A party should tailor discovery requests to the needs of
each case. The content of the requests should apply to the
particular case, and the form of discovery requested should
be the one best suited to obtain the information sought. In
each case a party should carefully determine which discovery
methods will achieve the discovery goal of obtaining useful
information as efficiently and inexpensively as possible for
everyone concerned.
R ESPONDING TO D ISCOVERY R EQUESTS . A party
responding to a discovery request should make diligent effort
to provide a response that (i) fairly meets and complies with
the discovery request and (ii) imposes no unnecessary burden
or expense on the requesting party.
D. Supplementing Answers
Rule 26(e), Federal Rules of Civil Procedure, expressly
provides that in many instances a party is under a duty to
supplement or correct prior disclosures pursuant to Rule
26(a) or in discovery responses. Fairness and professionalism
suggest a broader range of circumstances requiring
supplementation. However, a party may not vary the
provisions of the Federal Rules of Civil Procedure by placing
supplementation language in a discovery request.
E. Timeliness and Sanctions
T IMELINESS OF D ISCOVERY R ESPONSES . The Federal
Rules of Civil Procedure set forth explicit time limits for
responding to discovery requests. If unable to answer timely,
an attorney should first seek an informal extension of time
from counsel propounding the discovery. Counsel in this
district typically accommodate reasonable requests for
additional time. If unable to informally resolve the matter,
counsel should move for an extension of time to respond. See
Local Rule 3.01(g), Middle District of Florida, requiring a
certificate that counsel have conferred before seeking judicial
relief.

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M OTIONS FOR EXTENSIONS OF T IME . Motions for
extension of time within which to respond to discovery
should be filed sparingly and only when counsel are unable
to informally resolve their disputes. Counsel should be aware
that the mere filing of a motion for an extension of time in
which to respond does not, absent an order of the Court,
extend the deadline for responding to discovery requests.
S ANCTIONS . Rule 37, Federal Rules of Civil Procedure,
provides that if a party must seek relief from the Court to
compel a recalcitrant party to respond, the moving party may
be awarded reasonable expenses including attorney’s fees
incurred in compelling the responses. Rule 37 is enforced in
this district. Further, if a Court order is obtained compelling
discovery, unexcused failure to comply with such an order is
treated by the Court with special gravity and disfavor.
S TAYS OF D ISCOVERY. Normally, the pendency of a
motion to dismiss or a motion for summary judgment will
not justify a unilateral motion to stay discovery pending
resolution of the dispositive motion. Such motions for stay
are rarely granted. However, unusual circumstances may
justify a stay of discovery in a particular case upon a specific
showing of prejudice or undue burden. This policy also
applies to cases referred to mediation under the Local Rules.
F. Completion of Discovery
The Court ordinarily sets a discovery completion date
through its Case Management and Scheduling Order
(although a Judge may have another method of setting and
extending that deadline). The Court follows the rule that the
completion date means that all discovery must be completed
by that date. For example, interrogatories must be served
more than thirty days prior to the completion date to permit
the opposing party to respond before the discovery deadline.
Untimely discovery requests are subject to objection on that
basis. Counsel, by agreement, may conduct discovery after

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the formal completion date but should not expect the Court
to resolve discovery disputes arising after the discovery
completion date.
II. 	Depositions
A. General Policy and Practice
S CHEDULING. An attorney is expected to accommodate
the schedules of opposing counsel. In doing so, the attorney
should normally pre-arrange a deposition with opposing
counsel before serving the notice. If this is not possible,
counsel may unilaterally notice the deposition while at the
same time indicating a willingness to be reasonable about any
necessary rescheduling. Rule 30(a)(2)(A), Federal Rules of
Civil Procedure, limits each side to no more than ten
depositions unless otherwise ordered by the Court.
Additionally, Local Rule 3.04 requires the party noticing the
deposition to give a minimum of fourteen days’ written
notice to every other party and the deponent, absent
agreement or an order based upon some exigent
circumstance. And giving substantially more than fourteen
days’ notice is strongly encouraged. Rule 30(d)(1) limits a
deposition to one day of seven hours unless otherwise
authorized by the Court or stipulated by the parties. This is
generally interpreted to mean seven hours of actual
testimony, and does not include time spent for meals, rest, or
refreshment.
PERSONS WHO MAY ATTEND D EPOSITIONS . Each
attorney may ordinarily be accompanied at the deposition by
one representative of each client and, in technical
depositions, one or more experts. Business necessity may
require substitution for the representative of a party, but this
privilege should not be abused. Attorneys may also be
accompanied by records custodians, paralegals, secretaries,
and the like, even though they may be called as technical
witnesses on such questions as chain of custody, the

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foundation for the business record rule, or other technical
matters. While more than one attorney for each party may
attend, only one should question the witness or make
objections, absent an agreement to the contrary. Those in
attendance should conduct themselves in the manner
expected during courtroom proceedings in the presence of a
judge. Conduct during depositions should accord with Local
Rules 5.03(c)(5), (8), and (9), and (d)(2), Middle District of
Florida.
PLACE WHERE D EPOSITION M AY B E T AKEN . A nonresident plaintiff may reasonably expect to be deposed at least
once in this district during the discovery stages of the case
and a non-resident defendant who intends to be present in
person at trial may be deposed at least once in this district
during discovery.
D ESIGNATIONS BY AN O RGANIZATION OF SOMEONE TO
T ESTIFY ON ITS BEHALF . In issuing or responding to a
properly drawn notice of deposition pursuant to Rule
30(b)(6), Federal Rules of Civil Procedure, counsel should
adhere to the following guidelines:
(a) Conference. Before or promptly after the notice or
subpoena is served, the serving party and the organization
must confer in good faith about the matters for
examination.
(b) Requested Areas of Testimony. A notice or subpoena to an
entity, association, or other organization should accurately
and concisely identify the designated area(s) of requested
testimony, giving due regard to the nature, business, size,
and complexity of the entity being asked to testify.
(c) Designating the Best Person to Testify for the Organization.
An entity, association, or other organization responding to
a deposition notice or subpoena should make a diligent
inquiry to determine the individual(s) best suited to testify.

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(d) Reasonable Interpretation Is Required. Both in preparing
and in responding to a notice or subpoena to an entity,
association, or other organization, a party or witness is
expected to interpret the designated area(s) of inquiry in a
reasonable manner consistent with the entity’s business
and operations.
(e) If in Doubt, Clarification Is Appropriate. A responding
party or witness, who is unclear about the meaning and
intent of any designated area of inquiry, should
communicate in a timely manner with the requesting party
to clarify the matter so that the deposition may proceed as
scheduled. The requesting party is obligated to provide
clarification sufficient to permit informed, practical, and
efficient identification of the proper witness.
(f) Duty to Prepare Witness. Counsel for the entity should
prepare the designated witness so that the witness can
provide meaningful information about the designated
area(s) of inquiry.
IF AN O FFICER L ACKS KNOWLEDGE . Whenever an
officer, director, or managing agent of an entity is served with
a deposition notice or subpoena that contemplates testimony
on a subject about which the witness lacks knowledge or
information, that individual may submit to the noticing
party, reasonably before the date noticed for the deposition,
an affidavit or declaration under penalty of perjury so stating
and identifying a person within the entity, if any, having
knowledge of the subject matter. The noticing party should
then proceed with the deposition of the officer, director, or
managing agent initially noticed or subpoenaed only after
careful consideration and for a specific reason, provided to
the deponent in writing in advance of the deposition.
C ONSIDERATION FOR AN O RGANIZATION ’S S ENIOR
M ANAGEMENT . If information is sought from an
organization, counsel ordinarily should not seek in the first
instance to take the deposition of the organization’s senior
management if someone else in the organization can be

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expected to have more direct and firsthand knowledge or
information. Depositions are not properly used as a
mechanism to inconvenience or distract senior management
who may not be immediately involved in the dispute.
B. Objections
O BJECTION TO THE FORM OF THE QUESTION . Rule
32(d)(3)(B), Federal Rules of Civil Procedure, provides that
an objection to the form of the question is waived unless
asserted during the deposition. Many attorneys object by
simply stating “I object to the form of the question.” This
normally suffices because it is usually apparent that the
objection is, for example, “leading” or based upon an
insufficient or inaccurate foundation. The interrogating
attorney has a right to ask the objecting party to state a
sufficiently specific objection so that any problem with the
question can be understood and, if possible, cured. If the
interrogating attorney chooses not to ask for clarification, the
objecting attorney should stand on the objection without
further elaboration; the objection is preserved.
INSTRUCTION THAT A W ITNESS NOT ANSWER.
Occasionally during a deposition, an attorney may instruct a
deponent not to answer a question. Rule 30(c)(2), Federal
Rules of Civil Procedure, expressly provides that an attorney
may instruct a deponent not to answer only when necessary
to preserve a privilege, to enforce a limitation established by
the Court, or to present a motion to show that the
examination is being conducted in bad faith or in such a
manner as unreasonably to annoy, embarrass, or oppress the
deponent or party.
The use of the instruction not to answer, absent the limited
circumstances set forth in Rule 30(c)(2), Federal Rules of
Civil Procedure, is disfavored by the Court. A party or an
attorney who improperly instructs a deponent not to answer
is subject to the expense and sanction provisions of Rule
37(a)(5).

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ATTORNEY-D EPONENT CONFERENCE D URING
D EPOSITION . Except during routine recesses and for purposes
of determining the existence of a privilege, an attorney and a
deponent should not normally confer during a deposition.
Likewise, attorneys should not attempt to prompt a deponent
by suggestive or unnecessarily narrative objections.
ATTORNEY-D EPONENT COMMUNICATION D URING A
R ECESS . During a recess, an attorney for a deponent may
communicate with the deponent; this communication should
be deemed subject to the rules governing the attorney-client
privilege. If, as a result of a communication between the
deponent and his or her attorney, a decision is made to
clarify or correct testimony previously given by the deponent,
the deponent or the attorney for the deponent should,
promptly upon the resumption of the deposition, bring the
clarification or correction to the attention of the examining
attorney. The examining attorney should not attempt to
inquire into communications between the deponent and the
attorney for the deponent that are protected by the attorneyclient privilege. The examining attorney may inquire as to the
circumstances that led to any clarification or correction,
including inquiry into any matter that was used to refresh the
deponent’s recollection.
T ELEPHONE H EARING TO R ESOLVE D ISPUTES D URING
D EPOSITION . In unusual circumstances with material and
adverse consequences, the parties involved in a deposition
may telephone the chambers of the assigned Magistrate
Judge for resolution of an intractable dispute that has arisen
during the deposition. The Magistrate Judge, if available, will
entertain such a request only if all parties are present. This
procedure should be employed rarely (and only after counsel
have made every effort to resolve the dispute).

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C. Production of Documents at Depositions
S CHEDULING. Consistent with the requirements of Rules
30 and 34, Federal Rules of Civil Procedure, a party seeking
production of documents and other matters from another
party in connection with a deposition should schedule the
deposition to allow for the production in advance of the
deposition.
O PTION TO ADJOURN OR PROCEED . If requested
documents that are discoverable are not timely produced
prior to the deposition, the party noticing the deposition may
either adjourn the deposition until after such documents are
produced or, without waiving the right to have access to the
documents and to subsequently examine the deponent
regarding the documents, proceed with the deposition.
N ON-PARTIES . For non-parties, a subpoena is required to
obtain documents or testimony. See Section V.
D. Non-Stenographic Recording of Depositions
Rule 30(b), Federal Rules of Civil Procedure, provides that
parties are authorized to record deposition testimony by nonstenographic means without first obtaining permission of the
Court or agreement from other counsel. Rule 30(b)(3)(A)
states that the party taking the deposition shall state in the
notice the method by which the testimony shall be recorded.
Unless the Court orders otherwise, the testimony may be
recorded by audio, audiovisual, or stenographic means, and
the party taking the deposition shall bear the costs of
recording. Rule 30(b)(3)(B) allows any party to designate an
additional method to record the deponent’s testimony so long
as prior notice is provided to the deponent and other parties.
The additional record or transcript shall be made at the
designating party’s expense unless the Court orders
otherwise.

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A party choosing to record a deposition only by video or
audio should understand that a transcript will be required by
Rules 26(a)(3)(A)(ii) and 32(c), Federal Rules of Civil
Procedure, if the deposition is later to be offered as evidence
at trial or in conjunction with a Rule 56 motion. Objections
to the non-stenographic recording of a deposition may be
presented to the Court under the provisions of Rule 26(c).
Parties using non-stenographic means to record deposition
testimony shall refer to Rule 30(b), Federal Rules of Civil
Procedure, for specific procedures to ensure proper recording.
E. Experts
D ISCLOSURE AND REPORTS OF EXPERT W ITNESSES . Each
party should disclose the identity of prospective retained
expert witnesses and provide a complete expert report under
Rule 26(a)(2), Federal Rules of Civil Procedure, within the
time provided in the Court’s Case Management and
Scheduling Order (which often adopts the schedule proposed
by the parties in the Case Management Report). This
includes any expert witness retained by another party (such
as a co-defendant’s expert) who may be used by the
disclosing party. The expert report is not required of a
“hybrid” witness, such as a treating physician, who was not
specifically retained for the litigation and will provide both
fact and expert testimony (though non-retained experts must
still be disclosed and are subject to regular document and
deposition discovery). The parties are encouraged to
communicate openly about all opinions that a treating
physician is expected to render in support of a party’s case.
Rule 26(b)(4)(C), Federal Rules of Civil Procedure, requires:
Unless otherwise stipulated or ordered by the court,
if the witness is not required to provide a written
report, this disclosure 	must state: (i) the subject
matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703,

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or 705; and (ii) a summary of the facts and opinions
to which the witness is expected to testify.
S CHEDULING THE D EPOSITION . Pursuant to Rule
26(b)(4)(A), Federal Rules of Civil Procedure, a party may
depose any person who has been identified as an expert
whose opinions may be presented at trial. If a report from the
expert is required under Rule 26(a)(2)(B), the deposition shall
not be conducted until after the report is provided.
III. 	Production of Documents
A. Preparation and Interpretation of Requests for Documents
F ORMULATING R EQUESTS FOR DOCUMENTS . In addition
to complying with the provisions of Rules 26, 34 and 45,
Federal Rules of Civil Procedure, a request for documents,
whether a request for production or a subpoena duces tecum,
should be clear, concise, and reasonably particularized. For
example, a request for “each and every document supporting
your claim” or a request for “the documents you believe
support Count I” is objectionably broad in most cases.
U SE OF FORM REQUESTS . An attorney shall review any
standard form document request or subpoena duces tecum
and modify it to apply to the facts and contentions of the
particular case. A “boilerplate” request or subpoena not
directed to the facts of the particular case shall not be used.
Neither should burdensome “boilerplate” definitions or
instructions be used in formulating a document request or
subpoena. Words used in discovery normally should carry
their plain and ordinary meaning unless the particular case
requires a special or technical definition, which should be
specified plainly and concisely by the party required to
respond to the term(s).

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R EADING AND INTERPRETING REQUESTS FOR
D OCUMENTS . An attorney receiving a request for documents
or a subpoena duces tecum shall reasonably and naturally
interpret it, recognizing that the attorney serving it generally
does not have specific knowledge of the documents sought
and that the attorney receiving the request or subpoena
generally has or can obtain pertinent knowledge from the
client. Furthermore, attorneys are reminded that evasive or
incomplete disclosures, answers, or responses may be
sanctionable under the provisions of Rule 37, Federal Rules
of Civil Procedure.
C ONTACT WITH THE C LIENT W HEN A DOCUMENT
R EQUEST IS R ECEIVED . Upon receiving a document request,
counsel should promptly confer with the client and take
reasonable steps to ensure that the client:
(a) understands what documents are requested,
(b) has adopted a reasonable plan to obtain documents in a
timely and reasonable manner, and
(c) is purposefully implementing that plan in good faith.
R ESPONDING TO A DOCUMENT R EQUEST . A party and
counsel ordinarily have complied with the duty to respond to
a document request if they have:
(a) Responded to the requests within the time set by the
governing rule, stipulation, or court-ordered extension.
(b) Objected with specificity to objectionable requests and
included reasons.
(c) Stated whether any responsive materials are being
withheld on the basis of an objection.
(d) Produced the documents themselves (or copies),
specifically identified those documents that are being or
will be produced, or specified precisely where the
documents can be found and when they can be reviewed;

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if the documents will be produced, the response should
state a specific date when the responsive documents will be
available. For example, to state that the requested
documents will be available at an ambiguous “mutually
agreeable time” is not sufficient.
(e) Stated specifically that no responsive documents have
been found.
(f) Ensured a reasonable inquiry with those persons and a
reasonable search of those places likely to result in the
discovery of responsive documents.
O BJECTIONS . Attorneys should not make objections solely
to avoid producing documents that are relevant to any party’s
claim or defense and proportional to the needs of the case.
Absent compelling circumstances, failure to assert an
objection to a request for production within the time allowed
for responding constitutes a waiver and will preclude a party
from asserting the objection in response to a motion to
compel. Objections to requests for production should be
specific, not generalized, and should be in compliance with
the provisions of Rule 34(b), Federal Rules of Civil
Procedure. Objections to portions of a document request do
not excuse the responding party from producing those
documents to which there is no objection. Specific objections
should be matched to specific requests. General or blanket
objections should be used only when they apply to every
request. Boilerplate objections such as “the request is overly
broad, unduly burdensome, and outside the scope of
permissible discovery” are insufficient without a full, fair
explanation particular to the facts of the case.
PRODUCING D OCUMENTS OVER O BJECTION . When the
scope of the document production is narrowed by one or
more objections, this fact and the nature of the documents
withheld should be asserted explicitly for that request.

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W HEN PRODUCTION IS L IMITED BY INTERPRETATION . If
a party objects to a request as overbroad when a narrower
version of the request would not be objectionable, the
documents responsive to the narrower version ordinarily
should be produced without waiting for a resolution of the
dispute over the scope of the request. When production is
limited by a party’s objection, the producing party should
clearly describe the limitation in its response.
S UPPLEMENTATION OF D OCUMENT PRODUCTION . A
party should, without having to be asked, promptly produce
any responsive documents discovered after the original
production.
PRODUCING B USINESS R ECORDS IN L IEU OF
ANSWERING INTERROGATORIES . Rule 33(d), Federal Rules
of Civil Procedure, allows a party in very limited
circumstances to produce business records in lieu of
answering interrogatories. To avoid abuses of Rule 33(d), the
party wishing to respond to interrogatories in the manner
contemplated by Rule 33(d) should observe the following
practice:
(a) Specify the records to be produced in sufficient detail to
permit the interrogating party to locate and identify the
records and to ascertain the answer as readily as could the
party from whom discovery is sought.
(b) The producing party shall make its records available in
a reasonable manner (i.e., with tables, chairs, lighting, air
conditioning or heat, and the like if possible) during
normal business hours, or, in lieu of agreement, from 8:00
a.m. to 5:00 p.m., Monday through Friday, excluding
holidays.

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(c) The producing party shall designate one of its regular
employees to instruct the interrogating party on the use of
the records retention system involved. That person shall be
one who is fully familiar with the records system and, if a
question concerning the records arises and the designated
person cannot answer, the producing party should act
reasonably and cooperatively in locating someone who
knows the answer to the question.
(d) The producing party shall make available any
computerized information or summaries that it either
possesses or can produce by a reasonably efficient
procedure. See Section VIII.
(e) The producing party shall provide any relevant
compilations, abstracts, or summaries, either in its custody
or reasonably obtainable by it, not prepared in anticipation
of litigation. If it has any documents arguably subject to
this requirement but which it declines to produce for some
reason, the producing party shall call the circumstances to
the attention of the opposing party, who may move to
compel.
(f) All of the actual clerical data extraction work shall be
performed by the interrogating party unless agreed to the
contrary, or unless, after actually beginning the effort, it
appears that the task could be performed more efficiently
by the producing party. In that event, the interrogating
party may ask the Court to review the propriety of the
Rule 33(d) election. In other words, it behooves the
producing party to make the document search as simple as
possible, or the producing party may be required to answer
the interrogatory in full.
O RAL REQUESTS FOR PRODUCTION OF D OCUMENTS . As
a practical matter, many attorneys produce or exchange
documents upon informal request, often confirmed by letter.
An attorney’s promise that documents will be produced
should be honored. Requests for production of documents
and responses may be made on the record at depositions but

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usually should be confirmed in writing to avoid uncertainty.
Attorneys are reminded that informal requests may not
support a motion to compel.
B. Procedures Governing Manner of Production
Rule 34, Federal Rules of Civil Procedure, sets forth the
procedures required for responding to a request for
production of documents. Rule 34 also defines the term
“document.” In addition, the following general guidelines,
although varied to suit the needs of each case, are normally
followed:
G ENERAL . The Court expects attorneys to reach
agreements regarding the production of documents based
upon considerations of reasonableness, convenience, and
common sense.
PLACE OF PRODUCTION . As a matter of convenience, the
request may suggest production at the office of either
counsel. The Court expects the attorneys to reasonably
accommodate one another with respect to the place of
production of documents.
R ESPONSE . An attorney should not state the documents
are available for inspection and copying if they are not in fact
available when this representation is made.
M ANNER OF PRODUCTION . Rule 34, Federal Rules of
Civil Procedure, requires that a party producing documents
for inspection produce them as they are kept in the usual
course of business or organize and label them to correspond
with the categories in the request. In addition, if feasible, all
of the documents should be made available simultaneously,
and the party inspecting can determine the desired order of
review. While the inspection is in progress, the inspecting
party shall have the right to review again any documents
which have already been examined during the inspection.

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If the documents are produced as they are kept in the usual
course of business, the producing party has an obligation to
explain the general scheme of record-keeping to the
inspecting party. The objective is to acquaint the inspecting
party generally with how and where the documents are
maintained. If the documents are produced to correspond
with the categories in the request, some reasonable effort
should be made to identify certain groups of the produced
documents with particular categories of the request or to
provide some meaningful description of the documents
produced. The producing party is not obligated to rearrange
or reorganize the documents.
L ISTING OR M ARKING. The producing party is encouraged
to list or mark the documents which have been produced
with unique Bates labels, hash values, control numbers, or
another document identification convention. The parties are
encouraged to then use Bates-labeled and numbered
documents for deposition and trial exhibits. This will prevent
later confusion or dispute about which documents were
produced. For relatively few documents, a list prepared by
the inspecting attorney (which should be exchanged with
opposing counsel) may be appropriate; when more
documents are involved, the inspecting attorney may want to
number each document. The producing party should allow
such numbering so long as marking the document does not
materially interfere with its intended use. Documents that
would be materially altered by marking (e.g., promissory
notes) should be listed rather than marked. Alternatively,
copies of the documents (rather than originals) may be
marked.
C OPYING. Photocopies of the original documents are often
prepared by the producing party for the inspecting party as a
matter of convenience. However, the inspecting party has the
right to insist on inspecting the original documents.
The photocopying of documents will generally be the
responsibility of the inspecting party, but the producing party

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must render reasonable assistance and cooperation
depending on its staffing and facilities. In a case with a
manageable number of documents, the producing party
should allow its personnel and its photocopying equipment
to be used with the understanding that the inspecting party
will pay reasonable charges. If a large quantity of documents
is produced, it may be reasonable for the inspecting party to
furnish personnel to make copies on the producing party’s
equipment or it may be reasonable for the inspecting party to
furnish both the personnel and the photocopying equipment.
On occasion it may be reasonable for the documents to be
photocopied at another location or by an outside professional
copy service.
S CANNING. The producing party should cooperate
reasonably if the inspecting party wishes to scan rather than
copy documents.
L ATER INSPECTION . The inspecting party’s right to inspect
the documents again at a later date (after having completed
the entire initial inspection) must be determined on a case-bycase basis, but permission should not be unreasonably
withheld.
O BJECTIONS . Rule 34, Federal Rules of Civil Procedure,
requires that if a request for production is objectionable only
in part, production should be afforded with respect to the
unobjectionable portions of the request. Objections to the
production of documents based on generalized claims of
privilege will be rejected. A claim of privilege must be
supported by a statement of particulars sufficient to enable
the Court to assess its validity. For a more detailed discussion
of the invocation of privilege, see Section VI of this
handbook. The procedures for invoking privilege set forth in
Section VI also apply to document production (which often
requires the production of a “privilege log” containing the
information requested in Section VI).

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IV. 	Interrogatories
A. Preparation and Answering of Interrogatories
INFORMAL R EQUESTS. Whenever possible, counsel should
try to exchange information informally. The results of such
exchanges, to the extent relevant, may then be included in
the record by requests for admissions or stipulations.
However, Rule 26(a), Federal Rule of Civil Procedure,
requires a party, without awaiting a discovery request, to
provide to the other parties an initial exchange of disclosures.
N UMBER AND S COPE OF INTERROGATORIES . Rule 33(a),
Federal Rules of Civil Procedure, restricts to 25 (including all
discrete subparts) the number of interrogatories a party may
serve on any other party. Leave of court, which is not
routinely given absent stipulation, is required to serve more
than 25 interrogatories cumulatively. Pursuant to Rule 26(g),
counsel’s signature on interrogatories constitutes a
certification of compliance with those limitations.
Interrogatories should be brief, simple, particularized,
unambiguous, and capable of being understood by jurors
when read in conjunction with the answer. They should not
be argumentative nor should they impose unreasonable
burdens on the responding party. In some cases, the court
will propound interrogatories for each party to answer. These
must be responded to in a timely manner. The 25
interrogatory limit does not apply to court-ordered
interrogatories.
R ESPONSES . Rule 33(b), Federal Rules of Civil Procedure,
requires the respondent to answer an interrogatory separately
and fully in writing and under oath, unless the respondent
objects, in which event the party objecting shall state with
specificity the reasons for objection and shall answer to the
extent the interrogatory is not objectionable. Interrogatories
should be interpreted reasonably, in good faith, and
according to the meaning the plain language of the

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interrogatory would naturally import. When in doubt about
the meaning of an interrogatory, the responding party should
give it a reasonable interpretation (which may be specified in
the response) and offer an answer designed to provide, rather
than deny, information.
B. Objections, Privilege, and Responses
O BJECTIONS . Absent compelling circumstances, failure to
assert objections to an interrogatory within the time for
answers constitutes a waiver and will preclude a party from
asserting the objection in a response to a motion to compel.
All grounds for an objection must be stated with specificity.
Specific objections should be matched to specific
interrogatories. General or blanket objections should be used
only when they apply to every interrogatory. When an
answer is narrowed by one or more objections, this fact and
the nature of the information withheld should be specified in
the response itself.
ASSERTIONS OF PRIVILEGE . Generalized assertions of
privilege will be rejected. A claim of privilege must be
supported by a statement of particulars sufficient to enable
the Court to assess its validity. For a more detailed discussion
of the invocation of privilege, see Section VI dealing with
privilege. The procedures for invoking privilege set forth in
Section VI also apply to interrogatory answers.
INTERROGATORY R ESPONSES . A party and counsel
ordinarily have complied with their obligation to respond to
interrogatories if they have:
(a) Responded to the interrogatories within the time set by
the governing rule, stipulation, or court-ordered extension;
(b) Conducted a reasonable inquiry, including a review of
documents likely to have information necessary to respond
to interrogatories;
(c) Objected specifically to objectionable interrogatories;

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(d) Provided responsive answers; and
(e) Submitted the answers under oath, signed by the
appropriate party representative.
C. Other Interrogatory Issues
F ORM INTERROGATORIES . There are certain kinds of cases
which lend themselves to interrogatories which may be
markedly similar from case to case; for example, employment
discrimination and maritime cargo damage suits or diversity
actions in which form interrogatories have been approved by
state law. Aside from such cases, the use of “form”
interrogatories is ordinarily inappropriate. The party
propounding an interrogatory should carefully review
interrogatories to ensure that they are tailored to the
individual case; “boilerplate” is to be avoided.
C ONTENTION INTERROGATORIES . Interrogatories that
generally require the responding party to state the basis of
particular claims, defenses, or contentions in pleadings or
other documents should be used sparingly and, if used,
should be designed (1) to target claims, defenses, or
contentions that the propounding attorney reasonably
suspects may be the proper subject of early dismissal or
resolution or (2) to identify and narrow the scope of unclear
claims, defenses, and contentions. Interrogatories that
purport to require a detailed narrative of the opposing parties’
case are generally improper because they are overbroad and
oppressive.
R EFERENCE TO D EPOSITION OR DOCUMENT . Because a
party is entitled to discovery both by deposition and
interrogatory, it is ordinarily insufficient to answer an
interrogatory by reference to an extrinsic matter, such as “see
deposition of James Smith” or “see insurance claim.” For
example, a corporation may be required to state its official,
corporate response even though one of its high-ranking
officers has been deposed, because the testimony of an officer
may not necessarily represent a complete or express

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corporate answer. Similarly, a reference to a single document
is not necessarily a full answer, and the information in the
document—unlike the interrogatory answer—is not
ordinarily set forth under oath.
In rare circumstances, it may be appropriate for a
corporation or partnership to answer a complex interrogatory
by saying something such as “Acme Roofing Company
adopts as its answer to this interrogatory the deposition
testimony of James Smith, its Secretary, on pages 127-145 of
his deposition transcript.” This may suffice when an
individual has already fully answered an interrogatory in the
course of a previous deposition and the party agrees to be
bound by this testimony. However, counsel are reminded, as
provided in Rule 37(a)(4), Federal Rules of Civil Procedure,
that for purposes of discovery sanctions, “an evasive or
incomplete answer is to be treated as a failure to answer.”
INTERROGATORIES SHOULD B E REASONABLY
PARTICULARIZED . Interrogatories designed to force an
exhaustive or oppressive catalogue of information are
generally improper. For example, an interrogatory such as
“identify each and every document upon which you rely in
support of your claim in Count Two” is objectionably
overbroad in a typical case, although it may be appropriate
in, for example, a simple suit on a note. While there is no
simple and reliable test, common sense and good faith
usually suggest whether such an interrogatory is proper.
R ULE 33(D). Rule 33(d), Federal Rules of Civil Procedure,
allows a party in very limited circumstances to produce
business records in lieu of answering interrogatories. Please
refer to Section III(A)(10) for a detailed discussion of this
option.

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ANSWERING OBJECTIONABLE INTERROGATORIES . If any
interrogatory is objectionable because of overbreadth, the
responding party, although objecting, must answer the
interrogatory to the extent that the interrogatory is not
overbroad. In other words, an objection for overbreadth does
not relieve the duty to respond to an extent that is not
overbroad, while a party awaits a judicial determination
regarding the objection.
V. 	Subpoenas
A. General
APPLICABILITY. A subpoena is necessary in discovery to
obtain deposition testimony or other information, including
documents, from a non-party.
R ULES . Rule 45, Federal Rules of Civil Procedure, governs
subpoenas for discovery as well as for trial or hearings. Local
Rule 3.04, Middle District of Florida, provides that a
subpoena duces tecum requires fourteen days’ written notice.
ISSUANCE . A subpoena to obtain deposition testimony or
other information from a non-party must issue from the court
in the district where the action is pending. Rule 45(a)(2),
Federal Rules of Civil Procedure.
M OTION AND T RANSFER. A motion to quash or a motion
to enforce a discovery subpoena must be filed with the court
in the district where compliance is required. Rule 45(d),
Federal Rules of Civil Procedure. However, that court may
transfer a subpoena-related motion to the court in the district
where the action is pending if the person subject to the
subpoena consents or if there are exceptional circumstances.
Rule 45(f), Federal Rules of Civil Procedure.

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B. Contents of Subpoena
G ENERAL . The subpoena must identify the court from
which it is issued, the title of the action and its civil-action
number, the specified time and place for the testimony or
document production, and a description of the documents,
electronically stored information, or tangible things to be
produced. For a deposition, the subpoena must state the
method for recording the testimony. The subpoena may
specify the form or forms in which electronically stored
information is to be produced. The subpoena must also set
out the text of Rule 45(d) and (e). Rule 45(a)(1), Federal
Rules of Civil Procedure.
N OTICE . If the subpoena commands the production of
documents, electronically stored information, or tangible
things or the inspection of premises prior to trial, before it is
served on the person to whom it is directed, a notice and
copy of the subpoena must be served on each party. Rule
45(a)(4), Federal Rules of Civil Procedure.
C. Other Requirements for Service of Subpoena
Rule 45 has other requirements for issuing and serving a
subpoena.
ISSUANCE . Only an attorney authorized to practice in the
court where the subpoena is issued may issue and sign a
subpoena. Otherwise, the clerk of court must issue the
subpoena. Rule 45(a)(3), Federal Rules of Civil Procedure.
S ERVICE . Any person who is at least 18 years old and not a
party may serve a subpoena by delivering a copy to the
named person. Rule 45(b)(1), Federal Rules of Civil
Procedure. A subpoena may be served at any place within
the United States. Rule 45(b)(2), Federal Rules of Civil
Procedure.
F EE . If the person’s attendance is required, the fee for 1

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day’s attendance and the mileage allowed by law must be
provided when the subpoena is served, unless the subpoena is
issued on behalf of the United States or any of its officers or
agencies. Rule 45(b), Federal Rules of Civil Procedure.
PLACE OF C OMPLIANCE . A subpoena may command a
person to provide deposition testimony or other information
only within 100 miles of where the person resides, is
employed, or regularly transacts business in person. Rule
45(c), Federal Rules of Civil Procedure.
VI. 	Privilege
A. Invocation of Privilege or Other Protection
C LAIMS OF PRIVILEGE OR OTHER PROTECTION . A party
who responds to or objects to discovery requests and who
withholds information otherwise discoverable, asserting that
the information is privileged or subject to other protection
from discovery, must assert the claim expressly and must
describe the nature of the documents, communications, or
things not produced or disclosed, such that, without revealing
the privileged or protected information itself, the description
will enable other parties to assess the applicability of the
privilege or protection. See Rule 26(b)(5), Federal Rules of
Civil Procedure. Withholding materials without notice is
contrary to Rule 26 and may result in sanctions. If a motion
to compel is filed, the party asserting a protection generally
has the obligation to establish by affidavit or other evidence,
all facts essential to the establishment of the privilege or
protection relied upon.
PROCEDURE FOR INVOCATION OF PRIVILEGE OR OTHER
PROTECTION AGAINST D ISCOVERY D URING A D EPOSITION .
Rule 30(d), Federal Rules of Civil Procedure, permits
objection during a deposition but requires a concise statement
of the objection. Argumentative and suggestive objections or
responses are improper. Rule 30(c) allows a person to instruct

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a deponent not to answer if necessary to preserve a privilege
or other protection against discovery. While Rule 30(c)
provides certain protections, counsel should be mindful that
abuse of these protections is sanctionable. Rule 33(d)(2),
Federal Rules of Civil Procedure. If a claim of privilege or
other protection against discovery is asserted during a
deposition and information is not provided on the basis of
such assertion:
(a) The attorney asserting the privilege or other protection
shall identify during the deposition the nature of the
privilege or other protection claimed and, if the privilege
or protection is asserted in connection with a claim or
defense governed by state law, shall specify the applicable
state law.
(b) Unless doing so would result in disclosure of protected
information, a deposed party asserting privilege or other
protection must upon request of the deposing party
provide:
(i) For documents, to the extent the information is
readily obtainable from the witness being deposed or
otherwise:
(1) 	A description of the document, e.g., letter or
memorandum,
(2) 	Its date,
(3) 	The name, address and employer of the
author(s) of the document, or the person giving,
recording and/or transcribing a statement,
(4) 	Purpose for which the document was created
and transmitted,
(5) 	Subject of the document,
(6) 	Persons to whom the document is addressed,

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(7) 	Persons indicated thereon as having received
copies,
(8) 	Name, address, job title and employer of any
person known or believed to have received or seen
the document or any copy or summary thereof,
(9) 	The relationship to each other of the author,
addressee, and any other recipient,
(10) Degree of confidentiality with which it was
treated at the time of its creation and transmission,
and since,
(11) Other information sufficient to identify the
document for a subpoena duces tecum, including,
if available, Bates numbers assigned to the
document, and
(12) Any other facts relevant to the elements of
the particular privilege or protection asserted.
(ii) For oral communications:
(1) 	The general subject matter of the
communication,
(2) 	Its date,
(3) 	The place where the communication was
made,
(4) 	The name, address and employer of the
person making the communication,
(5) 	The name(s), address(es) and employer(s) of
the person(s) present when the communication
was made,
(6) 	The relationship to each other of the speaker

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and persons present, and
(7) 	Any other facts relevant to the elements of
the particular privilege or protection asserted.
(iii) 	Objection on the ground of privilege or other
protection asserted during a deposition may be
amplified by the objecting party subsequent to the
objection.
(c) After a claim of privilege or other protection has been
asserted, the attorney seeking disclosure shall have
reasonable latitude during the deposition to question the
witness to establish other relevant information concerning
the assertion of the privilege or other protection, unless
divulgence of such information would cause disclosure of
privileged or other protected information, including:
(i) 	the applicability of the particular privilege or other
protection being asserted,
(ii) 	the circumstances which may constitute an
exception to the assertion of the privilege or other
protection,
(iii) 	the circumstances which may result in the
privilege or other protection having been waived,
and
(iv) 	the circumstances which may overcome a claim of
qualified privilege or other protection.
B. Procedure for Resolving Claims of Privilege or Other
Protection Against Discovery with the Court
EVIDENCE R EQUIRED. A party asserting a privilege or
other protection against discovery normally has the
obligation to establish, by affidavit of a competent witness or
other evidence, all facts essential to the establishment of the
privilege or protection. The attorney asserting the privilege or
other protection against discovery should also file a

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memorandum of law specifically defining the privilege or
protection being asserted and citing relevant legal authority.
AFFIDAVITS . Any affidavits used to support a claim of
privilege or other protection against discovery should be
tested by the rules of evidence.
IN C AMERA R EVIEW . Documents or other privileged
information should not be furnished to the Court for in
camera review without prior court approval.
C. Waiver of Privilege
Rule 502, Federal Rules of Evidence, addresses waiver of
attorney-client privileged or work product information and
provides standards for the parties to limit the consequences of
a disclosure of privileged information. An agreement among
the parties in a case to limit waiver under Rule 502 is binding
only if incorporated in a court order under Rule 502(d).
VII. Motions for a Protective Order or to Quash
A. Effect of Filing a Motion for a Protective Order
The mere filing of a motion for a protective order does not,
absent an order of the Court granting the motion, excuse the
moving party from complying with the requested or
scheduled discovery. Upon receipt of objectionable
discovery, a party has a duty to seek relief immediately, i.e.,
without waiting until the discovery is due or almost due.
Upon receipt of a motion for a protective order, the Court
may issue a temporary stay of discovery pending resolution
of the motion. However, a party’s diligence in seeking relief
is a principal factor in the decision whether to grant a stay.

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B. Motion for Stipulated Protective Order
Parties wishing to keep confidential documents obtained or
disclosed during discovery, including for attorneys’ eyes only,
may file a motion for protective order, with a proposed order,
showing good cause for the relief requested. Notwithstanding
any provision in the stipulated protective order, nothing in
the court’s order authorizes any party to file under seal,
absent further court order, any confidential discovery
material with the Clerk of Court or at trial, as such filings are
subject to greater scrutiny due to the common law right to
inspect and copy judicial records and public documents. See
Section I(C)(2) for filing of discovery and other documents
under seal. See also Local Rule 1.11, Middle District of
Florida.
VIII. E-Discovery
A. General
The Court’s goal for discovery of electronically stored
information (“ESI”) is to facilitate fair, open, proportional
discovery of the facts underlying a dispute so that it is
resolved on the merits and not by gamesmanship. This
requires cooperation among counsel. The discovery of ESI
stands on equal footing with the discovery of paper
documents. The Federal Rules of Civil Procedure and
Evidence provide a framework for conducting cost-effective
discovery of ESI, but they cannot be effective unless
attorneys become familiar with their applicability and use
them where appropriate. The early discussion and resolution
of discovery issues is an important factor in reducing overall
case length and the cost of litigation. Attorneys must take the
time to educate themselves about ESI and because attorneys
often lack the technical knowledge to fully understand ESI,
they should consult their clients’ information technology
departments and vendors regarding ESI issues. The Sedona
Principles and the Sedona Cooperation Proclamation

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published by the Sedona Conference are an excellent source
of information on the duties of clients and counsel and best
practices for addressing the discovery of ESI.
B. Preservation
A party has a duty to retain ESI that may be relevant to
pending or reasonably anticipated litigation. The scope of a
party’s preservation obligation is determined on a case-bycase basis. Rule 26(f) requires the parties to confer as soon as
practicable and plan for discovery. The discussion of
preservation issues, to include each party’s records
management policies and procedures, ideally should occur
before suit is filed but certainly no later than the Rule 26
conference. The parties should exercise reason and good faith
when they discuss issues concerning ESI. On the topic of
preservation, counsel should be informed and otherwise
prepared to articulate both good cause for the preservation of
ESI and the costs and burdens of maintaining ESI.
C. Proportionality
The discovery of ESI should be proportional to the needs of
the case, considering the matters stated in Rule 26(b)(1),
Federal Rules of Civil Procedure. Rule 26(b)(2)(B) expressly
provides that a party does not have to provide discovery of
ESI that is not reasonably accessible because of undue
burden or cost except on motion and order of the Court.
D. ESI Conference
The following is a list of topics counsel should discuss prior
to or at the beginning of the case and no later than the Rule
26(f) case management meeting. They are strongly
encouraged to include their clients’ information technology
employees and vendors in these discussions.
The locations and sources where relevant ESI is likely to
be found. This includes the identity of people likely to have
relevant ESI.

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Reasonable steps to preserve ESI.
The relevant time period.
The manner and forms of preservation and production
including the production of ESI maintained in a database.
Possible forms for the production of ESI include native,
TIFF, and PDF. Absent agreement or a Court order, Rule
34(b) provides that ESI should be produced in either the form
in which it is “ordinarily maintained” or in a “reasonably
useable” form. When deciding what format(s) to use counsel,
with the assistance of their information technology experts,
are encouraged to discuss:
(a) The form or forms of ESI that will be most likely to
provide the information needed to establish the relevant
facts in the case.
(b) The need for metadata.
(c) Accessibility of ESI in the form requested.
(d) The requesting party’s ability to manage and use ESI in
the form requested.
(e) Risks associated with the inadvertent production of
privileged or confidential information associated with the
different forms of production.
(f) The difficulty of redacting ESI in the form requested.
(g) The extent to which alternative forms of production
will satisfy a party’s needs.
(h) The types of metadata that will be preserved and
produced.
(i) Sources of ESI that are not reasonably accessible.

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(j) The relative costs and other burdens associated with
collecting, processing, reviewing, and producing ESI.
(k) Allocation of the costs of production.
(l) The use of search terms, sampling, de-duplication,
“quick-peeks,” technology assisted review methods
including, for example, predictive coding and other
strategies to reduce the volume of ESI that must be
preserved and produced.
(m) 	How to deal with issues of confidentiality and
privilege including the use of “claw-back agreements” or
the appointment of a special master to resolve
disagreements.
(n) Tiered discovery in which ESI is produced sequentially
in tranches.
(o) Disposal of ESI at the appropriate time.
E. Procedure
G ENERAL . Counsel should have sufficient technical
knowledge to propound educated and reasonable requests for
ESI. Opposing counsel should have sufficient technical
knowledge to provide educated and reasonable responses to
requests for ESI. Blanket, overbroad, burdensome requests
for production invite blanket objections and lead to motions
to compel and for protective orders. To avoid this process
and reduce the volume and expense of discovering ESI,
requests for production should, to the extent possible, clearly
specify what is being sought including by topic and reference
to persons involved. Responses to requests for ESI should
state clearly and specifically what is being objected to and
why. They should also clearly state the extent to which
discovery of ESI will be permitted, the sources from which
ESI has been obtained and potential sources of ESI that were
not searched.

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F ORM, T ESTING, S AMPLING, AND COPYING. Rule 34(b)
establishes that unless requested in another form, the
producing party must produce electronically stored
information in a form or forms in which it is usually
maintained or in a form or forms that are reasonably usable.
The Rule permits testing and sampling as well as the
inspection and copying of ESI.
F ORENSIC IMAGING. Inspection of an opponent’s
computer system is the exception, not the rule and the
creation of forensic image backups of computers should only
be sought in exceptional circumstances which warrant the
burden and cost. A request to image an opponent’s computer
should include a proposal for the protection of privacy rights,
protection of privileged information, and the need to separate
out and ignore non-relevant information.
M ARKING. As an alternative to Bates numbers, parties
may consider using hash values, control numbers, or another
document identification convention to identify ESI.
D UPLICATIVE PRODUCTION . Ordinarily, information
should only be produced once, i.e., electronically or by paper
copies, not both.
F. Resolving Discovery Disputes
The parties should resolve discovery disputes through the
meet and confer process or, if such negotiations are
unsuccessful, resort to motion practice. Counsel should
consult Rule 26(b)(1) on proportionality and this handbook
for relevant factors to discuss when they confer.
G. Discovery from Non-Parties
Rule 45 does not require a party issuing a subpoena for ESI
to a non-party to confer with the non-party in advance.
Nevertheless, in most cases, the party issuing the subpoena
and the non-party responding to the subpoena should discuss,
in advance, the same issues a party would discuss with an

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opposing party before commencing discovery of ESI.
H. Metadata
D ISCUSSION . Counsel are encouraged to discuss:
(a) The types of metadata that are ordinarily maintained;
(b) The potential relevance of the metadata;
(c) The importance of reasonably accessible metadata to
facilitate the parties’ review, production and use of ESI;
and
(d) The locations of metadata that will be sought in
discovery.
R EVIEW . Except as otherwise ordered by the Court, once
produced, metadata is reviewable without notice to the
producing party.

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