Paul Ferrer, Senior Attorney, National Legal Research Group

            Rule 34 of the Federal Rules of Civil Procedure permits a party to request the responding party, within the scope of Rule 26(b), to produce for inspection designated documents and electronically stored information. See Fed. R. Civ. P. 34(a)(1). The request for production must, among other things, "describe with reasonable particularity each item or category of items to be inspected." Id. R. 34(b)(1)(A).

            The responding party generally must respond within 30 days after being served with the request for production. Id. R. 34(b)(2)(A). Effective December 1, 2015, Rule 34(b)(2)(B) was amended to require that for each item or category of items requested, "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." Id. R. 34(b)(2)(B) (emphasis added). The amendment to Rule 34(b)(2)(B) clarifies that general or boilerplate objections, such as that a request is harassing, are improper and result in a waiver of the unsupported objections. See, e.g., Leibovitz v. City of New York, No. 15-CV-546 (LGS) (HBP), 2017 WL 462515, at *2 (S.D.N.Y. Feb. 3, 2017) (collecting cases); see also Fed. R. Civ. P. 34 advisory comm. note to 2015 amend. ("This provision . . . eliminat[es] any doubt that less specific objections might be suitable under Rule 34.").

Steve Friedman, Senior Attorney, National Legal Research Group

     "Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.

     In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the  paper to . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party).

Lee Dunham, Senior Attorney, National Legal Research Group

      Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule." It provides:

Ann. Model Rules of Prof'l Conduct R. 3.7 ("Lawyer as Witness").

Paul Ferrer, Senior Attorney, National Legal Research Group

     For many years, trial attorneys were familiar with the broad scope of discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provided that unless otherwise limited by court order, parties could "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." As indicated in Rule 26(b)(1), the scope of discovery could be limited by the entry of a protective order if the court determined, among other things, that "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii) (amended), quoted in EEOC v. Thompson Contracting, Grading, Paving & Utils., Inc., 499 F. App'x 275, 281 n.5 (4th Cir. 2012). As part of the "Duke Rules" package of amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, that language was moved out of Rule 26(b)(2)(C)(iii) and into Rule 26(b)(1), which now provides that

[u]nless otherwise limited by court order, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.