Neb. Sup. Ct. R. 6-334

As amended through November 11, 2024

Section 6-334 - [Effective 1/1/2025] Producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, and control:

(A) 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 either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B) any tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Time; Editable Format. The request may be served on the plaintiff after commencement of the action and on any other party with or after service of the summons on that party. Upon demand, the party served with the request must be given an electronic copy of the request in a readily editable format.

(c) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

(2) Reponses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served, except that a defending party must respond within 45 days after being served with the summons or 30 days after being served with the request, whichever is longer. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. The responding party must reproduce each request and then state the party's response to the request. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

(C) Objections. If a party objects to a request, the party must state the grounds for the objection and must also explain with specificity why the request is objectionable on those grounds. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

(i) Withholding Materials. An objection must state whether any responsive materials are being withheld on the basis of that objection.

(ii) Partial Objection. An objection to part of a request must specify the part and produce or permit inspection of the rest.

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form - or if no form was specified in the request -- the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

Neb. Sup. Ct. R. 6-334

Rule 34(a)(1) and 34(b) (1-3) amended June 4, 2008, effective 7/18/2008. Renumbered and codified as § 6-334, effective 7/18/2008; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-334

[1] A party responding to requests for production or entry must state for each request whether it objects to the request or will honor the request. The original version of the rule implied (but did not explicitly state) that the responding party must first reproduce the request and then state its objection or response. The 2024 Amendments made the requirement explicit by adding the following sentence in subpart (c)(2)(B): "The responding party must reproduce each request and then state the party's response to the request." As a result, the format for responding to interrogatories, requests for documents, and requests for admission is the same.

[2] It is easier to reproduce each request if the requests are served in an electronic format. Subpart (b)therefore requires the requesting party to provide the responding party with an electronic copy of the requests in a readily editable format if the responding party asks for such a copy. Comment [4] of the Comments on § 6-333 provides examples of what are and what are not readily editable formats.

[3] Section 6-334 was promulgated at a time when documents were in paper form and complying with the request meant physically collecting the documents and making them available for the requesting party to inspect so that the party could decide which ones to photocopy. Therefore, the rule required the responding party to serve a response stating that (1) the party objected to the request or (2) the party would make the requested documents available for inspection. But as electronic documents began replacing paper documents, responding parties began providing documents in electronic form rather than making them available for inspection in paper form. In 2024, the rule was amended to bring the rule into conformity with the practice by giving the responding party the option of stating that it will produce the documents instead of making them available for inspection. The option appears in subpart (c)(2)(B).

[4] Like a party objecting to interrogatories, a party objecting to a § 6-334 request must state the grounds for its objection and explain why the request is objectionable on those grounds. The requirement was added by the 2024 Amendments and appears in subpart (c)(2)(C). The reasons for the requirement are discussed in Comment [2] of the Comments on § 6-333.

[5] Subpart (c)(2)(C) also provides that an objection is waived if the party fails to make the objection in a timely manner. Treating such a failure as a waiver, however, may sometimes be unduly harsh. The rule therefore gives the court the discretion to excuse the failure if there is good cause for doing so.

[6] In the past, objecting parties have sometimes produced documents without specifically stating that they were withholding any documents on the basis of the objection. As a result, the requesting party might have believed that it received all the responsive documents when in fact it did not. To ensure that the requesting party knows whether any documents have been withheld, subpart (c)(2)(C)(i) now requires an objecting party to state whether any responsive materials are being withheld on the basis of the objection. The objecting party is not required to provide a detailed description of the documents; a simple statement that documents were withheld is sufficient to put the requesting party on notice that it may need to pursue the issue.

[7] The original version of the rule included a subpart that recognized the possibility of filing an independent action against a nonparty for production of documents or tangible things or for entry onto land. The subpart was deleted by the 2024 Amendments because parties no longer need to file an independent action to obtain discovery from nonparties. Parties can proceed under § 6-334(A) to obtain discovery from nonparties for actions pending in Nebraska and under § 6-330(A) for actions pending in other states.