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Practice Tip: Rule 34's Direct Access Provision

By Mary Clare Bonaccorsi, Mark Brennan and JP Benitez

Rule 34 of the Federal Rules of Civil Procedure permits a party to 'inspect, copy, test, or sample any designated documents or electronically stored information.' However, what exactly does that mean for corporate litigants? Can a plaintiff demand to show up at a client's offices and expect a seat in front of a keyboard? Will a client be forced to hire a third party to copy its hard drives ' online shopping Web history and all ' and hand them over to the opponent?

Like many questions of law, the answer to either scenario is 'it depends.' Moreover, despite all the frenzy surrounding e-discovery and the relatively recent rule amendments, arriving at the answer should not involve an exhaustive analysis of the recently growing body of e-discovery literature. Given the history and purpose of the discovery rules, common-sense considerations of the facts at issue in any case will dictate whether it is appropriate for a judge to allow an opponent direct access to a client's computer system or to 'mirror images' of the computer system.

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