N.M. R. Civ. P. Dist. Ct. 1-034
The party on whom the request is served shall serve a written response within thirty (30) days after service of the request, but a defendant may serve a response within forty-five (45) days after service of the summons and complaint on 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 in its entirety as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the specific reasons for objection. If objection is made to part of an item or category, the part shall be specified. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use. The responding party shall state whether the response includes all responsive materials. If the responding party withholds any responsive materials based on an objection, the objection shall clearly describe with reasonable particularity what materials are being withheld for each objection. The party submitting the request may move for an order under Rule 1-037 NMRA with respect to any objection to, or other failure to respond to all or any part of the request, or any failure to permit inspection as requested.
Unless the parties otherwise agree, or the court otherwise orders,
N.M. R. Civ. P. Dist. Ct. 1-034
Committee commentary for 2009 amendments. - See the 2009 committee commentary to Rule 1-026 NMRA for additional information.
Committee commentary for 2021 amendments. - The 2021 amendments to Rule 1-034(B) require the responding party "state whether the response includes all responsive materials," and, if it does not, the responding party "clearly describe with reasonable particularity what materials are being withheld for each objection." The purpose of this amendment is to disincentivize, if not eliminate, obfuscation of the existence, volume, or nature of documents withheld from a production, or the basis for doing so, through the interposition of objections. The default response to a request for production is the production of responsive materials. While withholding documents pursuant to objections is often legitimate, failure to divulge that material documents have been withheld, failure to identify what materials have been disclosed, and failure to clearly state the reasons for withholding materials is not.
The reasonable particularity" standard mirrors the standard for a proper request for production under Rule 1-034(B) NMRA and is likewise flexible and circumstance dependent. Parties seeking the production or inspection of documents within the scope of discovery "must set forth the items to be inspected either by individual item or by category and describe each item and category with reasonable particularity." Rule 1-034(B). In this context, a discovery request "should be sufficiently definite and limited in scope that it can be said to 'apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.' " Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) (alterations in original) (citing Wright & Miller, 8A Federal Practice and Procedure § 16 2211, at 415).
Requests which are worded too broadly or are too all inclusive of a general topic function like a giant broom, sweeping everything in their path, useful or not." Audiotext Commc'ns v. U.S. Telecom, Inc., No. CIV. A. 94-2395 -GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). They "require the respondent either to guess or move through mental gymnastics which are unreasonably time-consuming and burdensome to determine which of many pieces of paper may conceivably contain some detail, either obvious or hidden, within the scope of the request." Benavidez v. New Mexico Dep't of Transportation, No. CV 12-919 MV/ACT, 2013 WL 12330028, at *6 (D.N.M. May 20, 2013) (internal quotation marks and citation omitted). Such requests are objectionable as overly broad. Id.; Taylor v. Grisham, No. 1:20-CV-00267-JB-JHR, 2020 WL 6449159, * 3 (D.N.M. Nov. 3, 2020); see also Marquez v. Frank Larrabee and Larrabee, Inc., 2016-NMCA-087, ¶ 12, 382 P.3d 968 (stating that the New Mexico Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure and holding that where the state rule closely tracks its federal counterpart, the federal construction of the federal rule is persuasive authority for construction of the corresponding state rule).
Reasonable shortcomings in the initial objections can permissibly be rectified during the parties' good faith efforts to resolve disputed discovery issues leading up to the filing of a motion to compel as required by Rule 1-037(A)(4) NMRA. However, as a component of these good faith efforts, the responding party is expected, upon request, to describe the selection and production methodologies used, including both the initial search for potentially responsive documents-e.g., the search terms used, the places or accounts searched and those not searched, the individuals consulted in the search, and why each of the foregoing was selected-and any subsequent culling of documents from those initially returned subject to that search. The expectation is that, at a minimum, parties to discovery will answer each other's questions during their good faith discussions, including, for example, that the requesting party will answer inquiries from the responding party about the relevance and proportionality of the requested documents, and that the responding party will answer questions about the legal bases of the objections, the factual burdens that would be imposed by the requested search(es), and the nature and volume of those documents withheld with at least as much robustness as they intend to include in their submissions to the Court during the briefing or hearing on any subsequent motion to compel.
The purpose of this amendment is not to place additional substantive discovery burdens on the responding party. For example, the amendment does not require the conducting of an initial, objectionably burdensome search for responsive documents. See Rule 1-026(E) NMRA (implicitly acknowledging that there will be times when a party performs a reasonable search but does not uncover all responsive materials, thereby demonstrating that there are legitimate limits to a party's obligation in performing an initial search). Nor does the amendment require the disclosure of details about responsive documents when the details themselves can be validly withheld subject to the objection in question; and, more generally, it does not require any action by the responding party that would effectively moot the lawful purpose for the objection. This amendment also does not seek to punish the imposition of even those objections that the Court ultimately overrules. It merely requires more detail and openness from the objections themselves.
For example, an objection to the burdensomeness of a request for all documents referring to a given individual or subject matter and created in the past ten (10) years might be validly supported by a statement that the party only retains documents for five (5) years, that the party keeps thirteen (13) filing cabinets of hardcopy documents in a centralized location and that those documents are not electronically searchable, and that the party has employed thirty (30) individuals in that time period who each maintain their own emails. The response might then be augmented with an offer to conduct a search the email accounts of the five (5) employees with the most involvement in the subject matter for emails containing certain specified search terms (as opposed to an individualized review of each email for responsiveness). If the same request is objected to on the basis of overbreadth-i.e., that not every document referring to the individual is relevant to the action-then it might be necessary to state that a specified number of documents were withheld after an individualized review because those documents, while mentioning the individual or subject matter in question, dealt exclusively with, for example, the setting up of the requested individual's retirement account, or a collection of documents or discussion of the requested subject matter that arose in a context that renders that collection or discussion wholly irrelevant to the instant action in a way that the responding party can articulate in its objection. The amended rule does not, however, allow a blanket assertion of these two (2) objections, and perhaps a litany of others, followed by a statement that an unspecified number of documents is being withheld of the basis of the collective objections.
[As amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009; as amended by Supreme Court Order No. 21-8300-024, effective for all cases pending or 7 filed on or after December 31, 2021.]
ANNOTATIONS The 2009 amendment, approved by Supreme Court Order No. 09-8300-007, effective May 15, 2009, in Subparagraph (1) of Paragraph A, after "inspect", changed "and copy any designated document, 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 reasonable usable form, or to inspect and copy, test or sample" to "copy, test or sample any designated documents, electronically stored information or"; in Paragraph B, in the first subparagraph, added the last sentence; in Paragraph B, in the second subparagraph, in the third sentence, after "unless the request is objected to", deleted "in which event" and added "including an objection to the requested form or forms for producing electronically stored information, stating" and added the fifth sentence; in Paragraph B, in the third subparagraph, added "Unless the parties otherwise agree, or the court otherwise orders", and added Subparagraphs (2) and (3). The 1997 amendment, effective January 1, 1998, substituted "the requestor's behalf" for "his behalf" in Subparagraph A(1), added the last undesignated paragraph in Paragraph B, and rewrote Paragraph C.
For subpoena for production of documentary evidence, see Rule 1-045 NMRA. Compiler's notes. - This rule and Rule 1-037 NMRA are deemed to supersede 105-831, C.S. 1929, relating to inspection of papers of opposite party; 105-832, C.S. 1929, relating to a party's refusal to follow discovery offer; and 105-833, C.S. 1929, relating to vacation of the discovery order. Definition of "parties". - These rules, as well as the common understanding of what is meant by a party to a lawsuit, are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. "Good cause" required by the rule is that of the movant, not the respondent. State ex rel. N.M. State Hwy. Comm'n v. Taira, 1967-NMSC-180, 78 N.M. 276, 430 P.2d 773 (decided before 1979 amendment). Scope of examination under this rule is as broad as that under Rules 26(b) or 33 (see now Rules 1-026 and 1-033 NMRA). Davis v. Westland Dev. Co., 1970 -NMSC-039, 81 N.M. 296, 466 P.2d 862. Term "control" in this rule embodies only two limitations: (1) a party obviously cannot be required to produce materials which he is incapable of procuring; and (2) in general, a party should not be required to obtain, collect or turn over materials which the opposing party is equally capable of obtaining on its own. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Mere possession by different party not determinative. - It is immaterial under this rule and Rule 33 (see now Rule 1-033 NMRA), that the party subject to the discovery orders does not own the documents, or that it did not prepare or direct the production of the documents, or that it does not have actual physical possession of them. The mere fact that the documents are in the possession of an individual or entity which is different or separate from that of the named party is not determinative of the question of availability or control. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Documents and information in the separate possession of partners are subject to production in a suit in which only the partnership is named as a party. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Discovery from adverse party's experts. - Although as a general rule a party will not be allowed to obtain discovery from the adverse party's experts, a guarded relaxation of this doctrine in favor of the condemnee may, at times, be proper, at least in condemnation actions by the government. State ex rel. N.M. State Hwy. Comm'n v. Taira, 1967-NMSC-180, 78 N.M. 276, 430 P.2d 773. Court's refusal to allow 30 days for discovery not abuse of discretion. - The trial court does not abuse its discretion when it refuses to allow 30 days for discovery where the motion to produce is filed three days prior to a hearing on a motion to dismiss, and where the plaintiff has filed only a motion to produce but nothing more, the plaintiff not specifying what this production will show or how it can affect the trial court's ruling. Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974. Willful failure to produce documents. - Where defendant's attempts to comply with court's order to produce documents came substantially after appointed time for their submission, where trips were made to have documents examined without advance notice and where none of defendant's actions were performed with a true effort to comply with court's order, failure to produce documents was willful. Rio Grande Gas Co. v. Gilbert, 1971-NMSC-113, 83 N.M. 274, 491 P.2d 162. Imposing of protection provisions and conditions. - The courts, in enforcing the rules with respect to depositions and discovery, have the right to impose protective provisions and conditions. State ex rel. N.M. State Hwy. Comm'n v. Taira, 1967-NMSC-180, 78 N.M. 276, 430 P.2d 773. Law reviews. - For comment, "Discovery - Disclosure of Existence and Policy Limits of Liability Insurance," see 7 Nat. Resources J. 313 (1967). For article, "The Impact of the Revised New Mexico Class Action Rules Upon Consumers," see 9 N.M.L. Rev. 263 (1979). Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§ 253 to 281. Self-serving declarations in answers to bill of discovery, 1 A.L.R. 52. Admissibility of the whole of answers to bills of discovery containing admissions, 1 A.L.R. 88. Evidence necessary to overcome self-serving declarations in answers to bills of discovery, 1 A.L.R. 124. Power to compel disclosure of ingredients or formula of patent or proprietary medicine, 1 A.L.R. 1476. Validity of statute making concealment of or failure to produce books or papers presumptive evidence, 4 A.L.R. 471. Inconvenience or expense as excuse for disobeying subpoena duces tecum, 9 A.L.R. 163. Insurer's right to bill of discovery under terms of policy providing for autopsy, 15 A.L.R. 620, 88 A.L.R. 984, 30 A.L.R.2d 837. Power to compel production of corporate books to aid in assessing holder of stock or his estate, 23 A.L.R. 1351. Unlawful means by which the knowledge of the existence of papers or documents was acquired as affecting right to enforce their production, 24 A.L.R. 1429. Presentation of claim to executor or administrator as condition precedent to suit for discovery, 34 A.L.R. 370. Creditor's right to inspect books and records under constitutional or statutory provision relating specifically to corporations, 35 A.L.R. 752. Permissible scope of inspection of books, records or documents, 58 A.L.R. 1263. Right to discovery as regards facts relating to amount of damages, 88 A.L.R. 504. Right of creditor to inspect books or papers of corporation in hands of receiver, 92 A.L.R. 1047. Constitutionality of statute providing for inspection of books and records in supplementary proceedings, 106 A.L.R. 383. Appearance to obtain relief in respect of statutory examination as submission to jurisdiction, 111 A.L.R. 934. Right of beneficiary or claimant of estate to inspect books and papers in hands of trustees, executor, administrator or guardian, and conditions of such rights, 118 A.L.R. 269. Self-incrimination privilege as justification for refusal to comply with order or subpoena requiring production of books or documents of private corporation, 120 A.L.R. 1102. Bill of discovery or statutory remedy for discovery as available for purpose of determining who should be sued, 125 A.L.R. 861. Practice or procedure for testing validity or scope of the command of subpoena duces tecum, 130 A.L.R. 327. Attorney as agent within statute providing for discovery examination of party or his agent, 136 A.L.R. 1502. Production, in response to call therefor by adverse party, of document otherwise inadmissible in evidence, as making it admissible, 151 A.L.R. 1006. Jurisdiction of action involving inspection of books of foreign corporation, 155 A.L.R. 1244, 72 A.L.R.2d 1222. Pretrial conference procedure as affecting right to discovery, 161 A.L.R. 1151. Use of subpoena to compel production or use as evidence of records of writings or objects in custody of court or officer thereof, 170 A.L.R. 334. Necessity of sufficiency under statutes and rules governing modern pretrial discovery practice, of "designation" of documents, etc., 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. Discovery or inspection of trade secret, formula or the like, 17 A.L.R.2d 383. 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. Fingerprints, palm prints or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R.4th 1178. Court's power to determine government's claim of privilege that official information contains state secrets or other matters, disclosure of which is against public interest, 32 A.L.R.2d 391. Privilege of custodian, apart from statute or rule, from disclosure, in civil action, of official police records and reports, 36 A.L.R.2d 1318. Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers or the like, 37 A.L.R.2d 586. Names and addresses of witnesses to accident or incident as subject of pretrial discovery, 37 A.L.R.2d 1152. Propriety of compelling witness to testify, in pretrial proceeding, as to matters which would be prohibited in trial testimony by dead man's statute, 42 A.L.R.2d 578. "Employee" within statute permitting examination, as adverse witness, of employee of party, 56 A.L.R.2d 1108. Discovery and inspection of income tax return in actions between private individuals, 70 A.L.R.2d 240. Federal Rules of Civil Procedure, construction and effect of Rules 30(b), (d), 31(d) and similar state statutes and rules, relating to preventing, limiting or terminating the taking of depositions, 70 A.L.R.2d 685. Statements of parties or witnesses as subject of pretrial or other disclosure, production or inspection, 73 A.L.R.2d 12. Time for filing and serving discovery interrogatories, 74 A.L.R.2d 534. 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. Taxation of costs and expenses in proceedings for discovery or inspection, 76 A.L.R.2d 953. Physician's report delivered to litigant's own attorney as subject of pretrial or other disclosure, production or inspection, 82 A.L.R.2d 1162. 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. Pretrial deposition-discovery of opinions of opponents expert witnesses of, 86 A.L.R.2d 138, 33 A.L.R. Fed. 403. Propriety of discovery interrogatories calling for continuing answers, 88 A.L.R.2d 657. Right to elicit expert testimony from adverse party called as witness, 88 A.L.R.2d 1186. Discovery, inspection and copying of photographs of article or premises which gave rise to litigation, 95 A.L.R.2d 1061. Mandamus or prohibition as available to compel or to prevent discovery proceedings, 95 A.L.R.2d 1229. Pretrial discovery of engineering reports of opponent, 97 A.L.R.2d 770. "Managing agent" of a corporate party whose discovery-deposition may be taken under Federal Rules of Civil Procedure or state counterparts, 98 A.L.R.2d 622. Discovery in aid of arbitration proceedings, 98 A.L.R.2d 1247. Discovery and inspection of articles and premises in civil actions other than for personal injury or death, 4 A.L.R.3d 762. Insurance, pretrial examination or discovery to ascertain from defendant in action for injury, death or damages, existence and amount of liability insurance and insurer's identity, 13 A.L.R.3d 822. Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Scope of defendant's duty of pretrial discovery in medical malpractice action, 15 A.L.R.3d 1446. Disclosure of name, identity, address, occupation or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047. Discovery, in civil case, of material which is or may be designed for use in impeachment, 18 A.L.R.3d 922. Pretrial discovery of identity of witnesses whom adverse party plans to call to testify at civil trial, 19 A.L.R.3d 1114. 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. Discovery, in products liability case, of defendant's knowledge as to injury to or complaints by others than plaintiff, related to product, 20 A.L.R.3d 1430. Commencing action involving condition of plaintiff or decedent as waiving physician-patient privilege as to discovery proceedings, 21 A.L.R.3d 912. Application of privilege attending statements made in course of judicial proceedings to pretrial deposition and discovery procedures, 23 A.L.R.3d 1172. Pretrial discovery or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401. Pretrial discovery of defendant's financial worth on issue of damages, 27 A.L.R.3d 1375. Confidentiality of proceedings or reports of judicial inquiry board or commission, 5 A.L.R.4th 730. Insured-insurer communications as privileged, 55 A.L.R.4th 336. Propriety of allowing state court civil litigant to call expert witness whose name or address was not disclosed during pretrial discovery proceedings, 58 A.L.R.4th 653. Propriety of allowing state court civil litigant to call nonexpert witness whose name or address was not disclosed during pretrial discovery proceedings, 63 A.L.R.4th 712. 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. Power of court under 5 USCS § 552(a)(4)(B) to examine agency records in camera to determine propriety of withholding records, 60 A.L.R. Fed. 416. Right of immune jury witness to obtain access to government affidavits and other supporting materials in order to challenge legality of court-ordered wiretap or electronic surveillance which provided basis for questions asked in grand jury proceedings, 60 A.L.R. Fed. 706. Independent action against nonparty for production of documents and things or permission to enter upon land (Rule 34(c) of Federal Rules of Civil Procedure), 62 A.L.R. Fed. 935. 27 C.J.S. Discovery §§ 72 to 109.