Rule 4:104-5.Production of Documents; Electronically Stored Information; Entry Upon Land for Inspection and Other Purposes; Pre-Litigation Discovery

Last amended September 1, 2018 · Current through June 18, 2026 · Last verified July 7, 2026

In one sentenceRule 4:104-5 requires a discovery response to specify exactly what's being withheld and why, adopts a spoliation framework for lost electronically stored information ranging from curative measures to case-dispositive sanctions depending on intent, protects good-faith compliance with a preservation order, and favors categorical privilege logs over document-by-document listings unless a party shows good cause for the latter.

Full Text of Rule 4:104-5

Text sizeJump to: (a) (b) (c)

(a) Contents of Response to Discovery Request. A party’s written response under R. 4:18-1(b)(2) shall, in addition to providing the information described in R. 4:18-1(b)(2), state specifically: (1) whether the objection(s) interposed pertain to all or part of a request being challenged; (2) whether any documents or categories of documents are being withheld and, if so, which of the stated objections forms the basis for the responding party’s decision to withhold otherwise responsive documents or categories of documents; and (3) the manner in which the responding party intends to limit the scope of its production.

(b) Failure to Provide Electronically Stored Information.

(1) If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(A) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(B) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (i) presume that the lost information was unfavorable to the party; (ii) instruct the jury that it may or must presume the information was unfavorable to the party; or (iii) dismiss the action or enter a default judgment.

(2) A party that is subject to an order entered by the court directing the preservation or production of electronically stored information and who acts in compliance with the terms of that order may thereafter apply its regular document destruction procedures to any electronically stored information that has not been ordered to be produced or preserved and shall not be subject to any sanction for the destruction of electronically stored information that is not subject to its obligation to produce or preserve under such court order.

(1) The preference in the CBLP is for the parties to use categorical designations, where appropriate, to reduce the time and costs associated with preparing privilege logs. The parties are required to address such considerations in good faith as part of the meet and confer process and to agree, where possible, to employ a categorical approach to privilege designations. The parties are encouraged to use any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category. If the parties agree to use a categorical approach, for each category of documents that may be established, the producing party shall provide a certification, pursuant to R. 1:4-4, setting forth with specificity the facts supporting the privileged or protected status of the information included within the category. The certification shall also describe the steps taken to identify the documents so categorized, including but not limited to whether each document was reviewed or some form of sampling or electronic key-word searching was employed, and if the latter how the sampling or key-word searching was conducted.

(2) In the event the requesting party refuses to permit a categorical approach, and instead insists on a document-by-document listing on the privilege log, the producing party, on a showing of good cause, may apply to the court for an order allowing it to use a categorical approach or allocating costs, including attorneys’ fees, incurred with respect to preparing the document-by-document log.

(3) In the event a document-by-document log is prepared, each uninterrupted e-mail chain shall constitute a single entry, and the description accompanying the entry shall include the following:

(A) an indication that the e-mails represent an uninterrupted dialogue;

(B) the beginning and ending dates and times (as noted in the e-mails) of the dialogue;

(D) the names of all authors and recipients, together with sufficient identifying information about each person to allow for a considered assessment of the privilege issues.

End

Amendment History

New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.

Adopted July 27, 2018 to be effective September 1, 2018.

Plain-English Summary

A written discovery response has to do more than object in general terms — it must say whether an objection covers all or part of a request, whether documents or categories of documents are being withheld and on what stated ground, and how the responding party intends to limit its production.

Lost electronically stored information gets handled on a sliding scale tied to fault. If information that should have been preserved is gone because a party didn't take reasonable steps, and it can't be recovered through more discovery, a showing of prejudice lets the court order only whatever curative measures are necessary; a showing that the party intended to deprive the other side of the information opens the door to harsher remedies, including a jury instruction presuming the information was unfavorable or even dismissal or default judgment. A party that complies with a court's preservation or production order can still run its normal document-destruction procedures on anything the order didn't cover, without facing sanctions for that destruction.

On privilege logs, the CBLP prefers a categorical approach over listing every document — parties are expected to work in good faith toward grouping withheld documents into categories, each backed by a certification detailing the factual basis for withholding and how the documents in that category were identified. If a requesting party won't accept that approach and insists on a document-by-document log, the producing party can ask the court, on a showing of good cause, to allow the categorical method instead or to shift the costs of preparing the longer log. Where a document-by-document log is required, an uninterrupted e-mail chain counts as a single entry, described by its date range, the number of messages, and everyone who sent or received them.

Frequently Asked Questions

What can happen if a party loses electronically stored information it should have preserved?

If prejudice to another party results, the court may order measures no greater than necessary to cure it; if the party acted with intent to deprive the other side of the information, the court may presume it was unfavorable, instruct the jury accordingly, or dismiss the action or enter default judgment.

Does the CBLP prefer categorical or document-by-document privilege logs?

Categorical designations are preferred to reduce cost and time, though a producing party facing a requesting party's refusal to accept that approach can ask the court, for good cause, to allow it anyway or to shift the costs of a document-by-document log.

Source & verification. The rule text and amendment history are reproduced verbatim from the official New Jersey Rules of Court (N.J. Ct. R. 4:104-5). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. · Official source

Also known as: CBLP discovery responsespoliation of ESIcategorical privilege log