GA Code § 9-11-34 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 11 - Civil Practice Act|Article 5 - Depositions and Discovery|§ 9-11-34. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes; Applicability to Nonparties; Confidentiality

  Scope. Any party may serve on any other party a request:   To produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of subsection (b) of Code Section 9-11-26 and which are in the possession, custody, or control of the party upon whom the request is served; or   To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of subsection (b) of Code Section 9-11-26.     Procedure.   The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected, either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.   The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. 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, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under subsection (a) of Code Section 9-11-37 with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.     Applicability to nonparties.   This Code section shall also be applicable with respect to discovery against persons, firms, or corporations who are not parties, in which event a copy of the request shall be served upon all parties of record; or, upon notice, the party desiring such discovery may proceed by taking the deposition of the person, firm, or corporation on oral examination or upon written questions under Code Section 9-11-30 or 9-11-31. The nonparty or any party may file an objection as provided in subsection (b) of this Code section. If the party desiring such discovery moves for an order under subsection (a) of Code Section 9-11-37 to compel discovery, he or she shall make a showing of good cause to support his or her motion. The party making a request under this Code section shall, upon request from any other party to the action, make all reasonable efforts to cause all information produced in response to the nonparty request to be made available to all parties. A reasonable document copying charge may be required.   This Code section shall also be applicable with respect to discovery against a nonparty who is a practitioner of the healing arts or a hospital or health care facility, including those operated by an agency or bureau of the state or other governmental unit. Where such a request is directed to such a nonparty, a copy of the request shall be served upon the person whose records are sought by certified mail or statutory overnight delivery, return receipt requested, or, if known, that person's counsel, and upon all other parties of record in compliance with Code Section 9-11-5; where such a request to a nonparty seeks the records of a person who is not a party, a copy of the request shall be served upon the person whose records are sought by certified mail or statutory overnight delivery, return receipt requested, or, if known, that person's counsel by certified mail or statutory overnight delivery, return receipt requested, and upon all parties of record in compliance with Code Section 9-11-5; or, upon notice, the party desiring such discovery may proceed by taking the deposition of the person, firm, or corporation on oral examination or upon written questions under Code Section 9-11-30 or 9-11-31. The nonparty, any party, or the person whose records are sought may file an objection with the court in which the action is pending within 20 days of service of the request and shall serve a copy of such objection on the nonparty to whom the request is directed, who shall not furnish the requested materials until further order of the court, and on all other parties to the action. Upon the filing of such objection, the party desiring such discovery may move for an order under subsection (a) of Code Section 9-11-37 to compel discovery and, if he or she shall make a showing of good cause to support his or her motion, discovery shall be allowed. If no objection is filed within 20 days of service of the request, the nonparty to whom the request is directed shall promptly comply therewith.   For any discovery requested from a nonparty pursuant to paragraph (2) of this subsection or a subpoena requesting records from a nonparty pursuant to Code Section 9-11-45, when the nonparty to whom the discovery request is made is not served with an objection and the nonparty produces the requested records, the nonparty shall be immune from regulatory, civil, or criminal liability or damages notwithstanding that the produced documents contained confidential or privileged information.     Confidentiality. The provisions of this Code section shall not be deemed to repeal the confidentiality provided by Code Sections 37-3-166 concerning mental illness treatment records, 37-4-125 concerning developmental disability treatment records, 37-7-166 concerning alcohol and drug treatment records, 24-12-20 concerning the confidential nature of AIDS information, and 24-12-21 concerning the disclosure of AIDS information; provided, however, that a person's failure to object to the production of documents as set forth in paragraph (2) of subsection (c) of this Code section shall waive any right of recovery for damages as to the nonparty for disclosure of the requested documents.    (Ga. L. 1966, p. 609, § 34; Ga. L. 1967, p. 226, § 16; Ga. L. 1972, p. 510, § 7; Ga. L. 1979, p. 1041, § 1; Ga. L. 1986, p. 1277, § 1; Ga. L. 1988, p. 375, § 1; Ga. L. 1998, p. 152, § 1; Ga. L. 2006, p. 494, § 2/HB 912; Ga. L. 2015, p. 385, § 4-18/HB 252.)    The 2015 amendment,  effective July 1, 2015, substituted "developmental disability" for "mental retardation" in the middle of subsection (d).   Cross references.   - Form of motion for production of documents, § 9-11-124.    Production of transcript of books and other documents sought by subpoena, § 24-13-5 et seq.    Subpoena tangible for production of documentary evidence, § 24-13-23.    Notice to produce, § 24-13-27.    Compelling production of books or records upon request of state revenue commissioner, § 48-2-53.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1987, "subsection (a)" was substituted for "paragraph (a)" in paragraphs (c)(1) and (c)(2).   Pursuant to Code Section 28-9-5, in 2013, in subsection (d), "24-12-20" was substituted for "24-9-40.1" and "24-12-21" was substituted for "24-9-47".   Editor's notes.   - Ga.L. 1998, p. 152, § 2, not codified by the General Assembly, provides that the amendment to this section is applicable to requests made on or after July 1, 1998.   Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "   U.S. Code.   - For provisions of Federal Rules of Civil Procedure, Rule 34, see 28 U.S.C.   Law reviews.   - For annual survey article on evidence law, see 52 Mercer L. Rev. 263 (2000). For article, "The Medical Records Custodian's Perspective," see 6 Ga. St. B.J. 8 (2001). For article, "The Absolute Privilege Between Patient and Psychiatrist in Civil Cases," see 6 Ga. St. B.J. 14 (2001). For annual survey on law of torts, see 61 Mercer L. Rev. 335 (2009). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For note, "Georgia's Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information,” see 37 Ga. St. U.L. Rev. 603 (2021). For comment, "A Study of the Georgia Statutes Relating to Discovery of Documents in Civil Actions," see 2 Ga. St. B.J. 361 (1966).   JUDICIAL DECISIONS   Editor's notes.   - Georgia Laws 1972, p. 510, made substantial revisions to certain sections of this chapter dealing with discovery. Prior to the 1972 amendment, this Code section was substantially the same as former Code 1933, § 38-2109. Hence, decisions based on this Code section prior to its 1972 amendment should be consulted with care.   In light of the similarity of the statutory provisions, decisions under former Code 1933, § 38-2109 are included in the annotations for this Code section.    Notice to produce may be served on the opposite party to any proceeding, requiring the production of records, documents, books, etc., which contain evidence pertinent to the cause in question. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966) (decided under former Code 1933, § 38-2109).    Scope of permissible discovery by interrogatories under O.C.G.A. § 9-11-33 is, in essence, the same as by request to produce under subsection (a) of O.C.G.A. § 9-11-34. E.H. Siler Realty & Bus. Broker, Inc. v. Sanderlin, 158 Ga. App. 796, 282 S.E.2d 381 (1981).   Access to workers' compensation records limited.    - In a suit to recover for personal injuries and property damage arising out of an automobile collision, the defendants served the State Board of Workers' Compensation (board) with a request for the production of any and all claims by the plaintiff for workers' compensation benefits including, but not limited to, all medical records, reports, and narratives. The trial court did not err in denying this motion as the board is not a general repository of discoverable material for defendants in civil actions, and access to the board's records is properly limited to those parties who have a specific interest in the workers' compensation claim in connection with which the records are maintained by the board. Insofar as the plaintiff's actual medical records were concerned, the defendants could have pursued the usual means of discovery that were available to any defendant in a civil action. Farrell v. Dunn, 199 Ga. App. 631, 405 S.E.2d 731 (1991).   Discovery not a substitute for execution and levy.    - Discovery procedures may be utilized to assist in the collection of judgments, but those procedures are not a substitute for execution and levy. Fagala v. Morrison, 161 Ga. App. 655, 289 S.E.2d 528 (1982).    Notice to produce should be specific enough in its demands to relate the documents sought to the questions at issue. Horton v. Huiet, 113 Ga. App. 166, 147 S.E.2d 669 (1966) (decided under former Code 1933, § 38-2109).   Conversion of notice to produce into request for production improper.    - Trial court did not have the discretion to hold that a notice to produce under former O.C.G.A. § 24-10-26 (see now O.C.G.A. § 24-13-27) had been converted into a request for production under O.C.G.A. § 9-11-34. Bergen v. Cardiopul Medical, Inc., 175 Ga. App. 700, 334 S.E.2d 28 (1985).    Compelling party to answer interrogatories and produce requested documents did not constitute an unauthorized commingling of discovery procedures since there was a clear delineation as to each discovery procedure and the law applicable to each procedure was cited. Whisenaut v. Gray, 189 Ga. App. 314, 375 S.E.2d 619, cert. denied, 189 Ga. App. 913, 375 S.E.2d 619 (1988).   Request for production of "all other documents" intended for use at trial.    - Production of "all other documents" intended for use at trial is outside the scope of subsection (a) of O.C.G.A. § 9-11-34, delineated under O.C.G.A. § 9-11-26(b)(1) as "any matter . . . which is relevant to the subject matter involved in the pending action," without regard to whether or not that "matter" will be used as evidence at the trial of the action. E.H. Siler Realty & Bus. Broker, Inc. v. Sanderlin, 158 Ga. App. 796, 282 S.E.2d 381 (1981).   Contempt for failure to produce documents in possession of third party.    - When a judgment debtor sought discovery of documents that would show the creditor's use of the collateral (a Ferrari race car) that might offset the debt owed, and the creditor claimed the documents were in the control of a third party, the trial court did not err in holding the creditor in contempt given the creditor's control of the car and its relationship with the third party. Lion Antique Cars & Invs., Inc. v. Tafel, 332 Ga. App. 824, 775 S.E.2d 191 (2015).   Names of witnesses.    - While the party who propounds interrogatories is entitled to the names and addresses of the other party's witnesses who have knowledge of relevant facts, the propounding party is not entitled to the specific names of those persons who will be called as witnesses at the trial of the case. E.H. Siler Realty & Bus. Broker, Inc. v. Sanderlin, 158 Ga. App. 796, 282 S.E.2d 381 (1981).   Motion improper for quashing or enforcement of notice to produce.    - Motions pursuant to O.C.G.A. §§ 9-11-26,9-11-34, and9-11-37 for a protective order or sanctions were not proper vehicles for the quashing or the enforcement of a notice to produce under former O.C.G.A. § 24-10-26 (see now O.C.G.A. § 24-13-27). Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).    Unless plaintiff's notice to produce was somehow converted into a request to produce, the trial court's original order requiring the production of the documents and subsequent order imposing sanctions would be clearly erroneous, the trial court properly converted the notice when the notice to produce did set forth the time, place, and manner of making the inspection and thus fully complied with the statutory requirements of paragraph (b)(1) of O.C.G.A. § 9-11-34. Joel v. Duet Holdings, Inc., 181 Ga. App. 705, 353 S.E.2d 548 (1987).   Indispensability of actual business records.    - In cases involving production of business records in the sole possession of the opposing party, the actual record of figures and technical details of business transactions may well be indispensable because the necessary information cannot be satisfactorily discovered by interrogatories and depositions. Leonard Bros. Trucking Co. v. Crymes Transps., Inc., 123 Ga. App. 424, 181 S.E.2d 296, later appeal, 124 Ga. App. 341, 183 S.E.2d 773 (1971).   Privileged matter not discoverable.    - Patient's failure to object within 10 days to a request for nonprivileged matter under a nonparty document production request did not amount to an affirmative waiver of privileged communications with the patient's psychiatrist. Hopson v. Kennestone Hosp., 241 Ga. App. 829, 526 S.E.2d 622 (1999), aff'd, 273 Ga. 145, 538 S.E.2d 742 (2000).   Cell phone records not discoverable.    - Trial court did not abuse the court's discretion in quashing a subpoena for the appellee's cell phone records as those records were not reasonably calculated to lead to the discovery of admissible evidence under former O.C.G.A. § 24-10-22 (see now O.C.G.A. § 24-13-23) or information relevant to the intrusive nature of the behavior alleged to be tortious. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007).   Financial records of law firm against which punitive damages sought.    - When the trial court determined that jury issues remained as to a claim for punitive damages against a law firm, the trial court abused the court's discretion in denying production of any of the law firm's financial records until after the jury rendered the jury's verdict. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008).   Financial records of bank.    - Trial court did not err in finding that the information the ex-wife sought from the bank was relevant and discoverable as the order was consistent with a conclusion that the requested financial information relating to the ex-husband's new wife and her business was calculated to lead to evidence of the ex-husband's income or earning capacity. Speedy Care Transport, Inc. v. George, 348 Ga. App. 325, 822 S.E.2d 687 (2018).   No burden on movant to negate privilege.    - There is no burden upon the movant to show that items sought under a motion to produce are not privileged or not within the attorney's work product. Gooch v. Seaboard Coast Line R.R., 121 Ga. App. 14, 172 S.E.2d 435 (1970).    Broad discretionary power is given to the judges by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) to assure safeguards against oppressive and unfair questions and demands; conversely, very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with orders of courts. Dean v. Gainesville Stone Co., 120 Ga. App. 315, 170 S.E.2d 348 (1969).   Deletion of privileged material.    - When any document sought to be produced contains a mixture of privileged and nonprivileged communication or information, ample remedy is provided to delete privileged matter, and this also would be within the inherent power of the court. Cranford v. Cranford, 120 Ga. App. 470, 170 S.E.2d 844 (1969).   Application to criminal proceedings.    - Motion by a criminal defendant under O.C.G.A. § 9-11-34 for the production of documents was not a proper method of obtaining the documents. Jackson v. State, 227 Ga. App. 847, 490 S.E.2d 430 (1997).   Application to divorce proceedings.    - Attorney's defense to the trial court's order holding the attorney in contempt for the attorney's refusal to turn over a client's file challenging the underlying validity of the prior order requiring the attorney to turn over the file was a collateral attack that could be sustained under O.C.G.A. § 9-11-60(a) only if the prior order was void on its face. However, the trial court's prior order was not void on its face since: (1) the attorney was served with a motion to compel prior to the entry of the prior order; (2) the trial court had jurisdiction to issue an order to compel a nonparty to release necessary non-privileged documents specifically prepared in anticipation of a divorce action pending before the trial court under O.C.G.A. §§ 9-11-26(b),9-11-34(c)(1), and9-11-37(a); (3) the attorney willfully disregarded the prior order; and (4) the prior order was entered in a matter over which the trial court had subject matter jurisdiction, making the order's disobedience contempt of court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).   Post-judgment discovery.    - Judgment creditor was authorized to seek bank records of the debtor's wife in post-judgment discovery because the creditor was entitled to seek information that would lead to any property or other sources of income of the debtor; further, the wife had begun paying the husband's country club dues from her bank accounts after the judgment was entered. Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 785 S.E.2d 72 (2016).   Default judgment appropriate following failure to answer.    - Trial court did not err in entering a default judgment against sellers pursuant to O.C.G.A. § 9-11-37(b)(2) without conducting a hearing on willfulness because the sellers did not file answers to a broker's request for interrogatories and production of documents within the time period prescribed by O.C.G.A. §§ 9-11-33(a)(2) and9-11-34(b)(2), and the sellers only filed a response to the request after the trial court's grant of the broker's initial motion to compel and for sanctions. Cochran v. Kennelly, 306 Ga. App. 838, 703 S.E.2d 411 (2010).   Cost associated with production.    - In a personal injury case, a trial court did not abuse the court's discretion by compelling a railway company to provide discovery of information on an event data recorder because the information was relevant under O.C.G.A. § 9-11-26(b)(1), and a producing party could have been required to translate information into a reasonably usable form. The trial court did not abuse the court's discretion by failing to grant the protective order since there was no undue burden or expense given the crucial nature of the evidence; moreover, the cost of a license required to view the information was minor compared to the amount at stake in the lawsuit, and it was the railway company's decision to install the device. Norfolk S. Ry. v. Hartry, 316 Ga. App. 532, 729 S.E.2d 656 (2012).   Denial of discovery based on grant of summary judgment improper.    - In a case where the plaintiff alleged an ownership interest in and an employment agreement with the company, the defendants' summary judgment motion was improperly granted and the plaintiff's motion to compel was improperly denied as moot because the plaintiff's discovery requests from the accountant regarding the accountant's knowledge of the contract negotiations and all documents related to that process and from the company's president regarding all evidence relating to the plaintiff's association with the company appeared reasonably calculated to lead to the discovery of admissible, relevant evidence. Dodson v. Sykes Indus. Holdings, LLC, 324 Ga. App. 871, 752 S.E.2d 45 (2013).   Sanctions proper.    - In a negligence case, a trial court did not abuse the court's discretion by striking the defendants' joint answer and counterclaim as a sanction for discovery abuse because the evidence established that the defendants intentionally and in bad faith concealed damaging evidence by repairing the tractor trailer and destroying information from the computer units involved in the accident, provided false answers to interrogatories, and the plaintiff was prejudiced by the misconduct. Howard v. Alegria, 321 Ga. App. 178, 739 S.E.2d 95 (2013).    Cited in Hohlstein v. White, 117 Ga. App. 207, 160 S.E.2d 232 (1968); White v. Gulf States Paper Corp., 119 Ga. App. 271, 166 S.E.2d 910 (1969); Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 183 S.E.2d 586 (1971); DOT v. Livaditis, 129 Ga. App. 358, 199 S.E.2d 573 (1973); DeWes Enters. Inc. v. Town & Country Carpets, Inc., 130 Ga. App. 610, 203 S.E.2d 867 (1974); Smith v. Bass, 131 Ga. App. 557, 206 S.E.2d 541 (1974); Johnson v. Martin, 137 Ga. App. 312, 223 S.E.2d 465 (1976); Shannon Co. v. Heneveld, 138 Ga. App. 756, 227 S.E.2d 412 (1976); Dyna-Comp Corp. v. Selig Enters. Inc., 143 Ga. App. 462, 238 S.E.2d 571 (1977); Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Merritt v. Citizens Trust Bank, 164 Ga. App. 716, 298 S.E.2d 264 (1982); Browning v. Powell, 165 Ga. App. 315, 301 S.E.2d 52 (1983); White v. Dilworth, 178 Ga. App. 226, 342 S.E.2d 709 (1986); Carey Can., Inc. v. Hinely, 181 Ga. App. 364, 352 S.E.2d 398 (1986); Munna v. Lewis, 181 Ga. App. 860, 354 S.E.2d 181 (1987); Emory Univ. v. Houston, 185 Ga. App. 289, 364 S.E.2d 70 (1987); McFarlin v. Taylor, 187 Ga. App. 54, 369 S.E.2d 330 (1988); Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992); Jones v. Abel, 209 Ga. App. 889, 434 S.E.2d 822 (1993); Sechler Family P'ship v. Prime Group, Inc., 255 Ga. App. 854, 567 S.E.2d 24 (2002); Nanan v. State Farm Ins. Co., 286 Ga. App. 539, 650 S.E.2d 283 (2007); Haughton v. Canning, 287 Ga. App. 28, 650 S.E.2d 718 (2007); Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017); Martin v. Fulton County Bd. of Registration & Elections, 307 Ga. 193, 835 S.E.2d 245 (2019); Hunt v. Callahan, 353 Ga. App. 488, 838 S.E.2d 133 (2020).   RESEARCH REFERENCES   Am. Jur. 2d.   - 23 Am. Jur. 2d, Depositions and Discovery, § 146 et seq.   C.J.S.   - 27 C.J.S., Discovery, § 104 et seq.   ALR.    - Scope or extent, as regards books, records, or documents to be produced or examined, permissible in order for inspection, 58 A.L.R. 1263.    Right of beneficiary or claimant of estate to inspect books and papers in hands of trustee, executor, administrator, or guardian, and conditions of such right, 118 A.L.R. 269.    Production, in response to call therefor by adverse party, of document otherwise inadmissible in evidence, as making it admissible, 151 A.L.R. 1006.   Necessity and sufficiency, under statutes and rules governing modern pretrial discovery practice, of "designation" of documents in application or motion, 8 A.L.R.2d 1134.   Discovery and inspection of article or premises the condition of which is alleged to have caused personal injury or death, 13 A.L.R.2d 657.   Form, particularity, and manner of designation required in subpoena duces tecum for production of corporate books, records, and documents, 23 A.L.R.2d 862.   Discovery and inspection of income tax returns in actions between private individuals, 70 A.L.R.2d 240.   Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection, 73 A.L.R.2d 12.   Pretrial discovery to secure opposing party's private reports or records as to previous accidents or incidents involving the same place or premises, 74 A.L.R.2d 876.   Time and place, under pretrial discovery procedure, for inspection and copying of opposing litigant's books, records, and papers, 83 A.L.R.2d 302.   Discovery, inspection, and copying of photographs of article or premises the condition of which gave rise to instant litigation, 95 A.L.R.2d 1061.   Production and inspection of premises, persons, or things in proceeding to perpetuate testimony, 98 A.L.R.2d 909.   Discovery and inspection of articles and premises in civil actions other than for personal injury or death, 4 A.L.R.3d 762.   Discovery and inspection: compelling party to disclose information in hands of affiliated or subsidiary corporation, or independent contractor, not made party to suit, 19 A.L.R.3d 1134.   Who has possession, custody, or control of corporate books or records for purposes of order to produce, 47 A.L.R.3d 676.   Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.   Photographs of civil litigant realized by opponent's surveillance as subject to pretrial discovery, 19 A.L.R.4th 1236.   Propriety of state court's grant or denial of application for pre-action production or inspection of documents, persons, or other evidence, 12 A.L.R.5th 577.   Discoverability of metadata, 29 A.L.R.6th 167.   Right to perpetuation of testimony under Rule 27 of Federal Rules of Civil Procedure, 60 A.L.R. Fed. 924.   Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records--modern status, 87 A.L.R. Fed. 177.   Construction and application of Fed. R. Civ. P. 34(b)(2)(E), governing production of electronically stored information (ESI), 14 A.L.R. Fed. 3d 1.