Supreme Court of Tennessee Adopts Rule 34 Specificity Amendment

Earlier this month, the Supreme Court of Tennessee issued an order adopting amendments to the Tennessee Rules of Civil Procedure. See, In re Amendments to the Tenn. Rules of Civil Procedure, No. ADM2018-01575, 2019 Tenn. LEXIS 3 (Tenn. Jan. 8, 2019). The Tennessee General Assembly (its Senate and House of Representatives) must still approve the amendments.

In addition to changes to Rule 4, addressing the service of defendants, the Supreme Court has approved an amendment to Rule 34.02, which concerns document productions.

"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, including an objection to the requested form or forms for producing electronically stored information, stating with specificity the grounds and reasons for objecting to the request. If objection is made to part of an item or category, the part shall be specified. An objection must state whether any responsive materials are being withheld on the basis of that objection."

The inserted language is underlined and boldfaced. This mirrors the amendments to Federal Rules of Civil Procedure in December 2015. The first added phrase is nearly the same wording as the amended version of Fed. R. Civ. P. 34(b)(2)(B): ". . . with specificity the grounds for objecting to the request, including the reasons." The second added phrase is identical to that used in Fed. R. Civ. P. 34(b)(2)(C).

The Advisory Commission's Comment to the amendment states that it is intended to make clear that boilerplate objections are improper. The reasons for objections are to be stated to, "facilitat[e] the resolution of discovery disputes without the need for judicial intervention." 2019 Tenn. LEXIS 3, at *11. If objections are made to overbroad requests, parties must specify if they are made in whole or in part, and produce materials which are not covered by the objection. "For any such objection or response that covers only a part of the request, it should be clear from the response that production is being limited to documents or electronically-stored information covering the specifically identified time period or sources for which the responding party has no objection." Id. at *12. The comment goes on to note that while it will not be necessary to submit a log of withheld documents, a party must give an adequate enough description of them to facilitate an informed discussion of the reasons for the withholding.