November 30, 2017 Practice Points

Responses to Discovery Document Requests Are Now Required to Be . . . Responsive?

By Matthew S. Almon and Leon Whitten

For years, anyone who sent requests for the production of documents in a federal action often encountered a problem—indecipherable responses. Litigators frequently relied on boilerplate language in their responses to document requests that led to more questions than the responses answered. The form of that boilerplate language looked something like this: catchall objections made for all requests, followed by specific objections (usually the same ones from the catchall section) made for specific requests, and then the "responsive" statement, "[s]ubject to the foregoing, and without waiving same, see the attached documents marked 'XYZ1-123.'" The problem? Because of what these responses did not contain, nobody, including the courts, could figure out how responsive they really were.

Attorneys still using this type of boilerplate approach to their document requests responses do so at their own risk. Federal Rule of Civil Procedure 34, which governs document request responses, was revised in late 2015 to require that responses now "state with specificity the ground for objecting and state whether any responsive materials are being withheld on the basis of that objection." Courts since have begun to apply this amended language to disallow attorneys from relying on boilerplate objections and production without adequate explanation. A decision in the Southern District of New York, in particular, recently proclaimed that (1) this amendment to Rule 34 represents a revolution in discovery practice, and (2) litigators better catch up:

It is time, once again, to issue a discovery wake-up call to the Bar in this District . . . [about] one change that affects the daily work of every litigator [in] Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:

  • State grounds for objections with specificity;
  • An objection must state whether any responsive materials are being withheld on the basis of that objection; and
  • Specify the time for production, and if a rolling production, when production will begin and when it will be concluded.

Most lawyers who have not changed their "form file" violate one or more (and often all three) of these changes.

Fischer v. Forrest, Nos. 14-1304, 14-1307, 2017 U.S. Dist. LEXIS 28102, at *2 (S.D.N.Y. Feb. 28, 2017).

The Fischer court concluded by noting that attorneys have had ample time since the Rule 34 amendment to update their response practices, and warning that from that point on, "any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege)." Id.

More recent cases reveal that Fischer is no outlier. Courts in other jurisdictions have deemed that objections raised in deficient responses are waived. See Sobol v. Imprimis Pharm., No. 16-14339, 2017 U.S. Dist. LEXIS 184478, at *11 (E.D. Mich. Oct. 26, 2017) (citing Fischer in holding that "boilerplate objections are legally meaningless and amount to a waiver of an objection"); see also, e.g., Sream, Inc. v. Hassan Hakim & Sarwar, Inc., No. 16-81600, 2017 U.S. Dist. LEXIS 31491, at *4-*5 (S.D. Fla. Mar. 6, 2017). Additional courts have overruled objections to document requests for the same reasons. See, e.g., City of Hartford v. Monsanto Co., No. 15-1544, 2017 U.S. Dist. LEXIS 181651, at *3-*4 and n.1 (D. Conn. Nov. 2, 2017); Team Contractors, L.L.C. v. Waypoint NOLA, L.L.C., No. 16-1131, 2017 U.S. Dist. LEXIS 118653, at *5-*7 (E.D. La. July 28, 2017).

The Fischer change to the discovery rules was intended to "end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections[,]" Fed. R. Civ. P. 34, advisory committee's notes, and also therefore to reduce the time, cost, and complexity of efforts to resolve that confusion and uncertainty: Litigants should no longer have to guess what objections actually apply to a response or whether a respondent withheld documents from a production. Attorneys that have yet to update the boilerplate language used in their discovery "form file" to account for the 2015 amendment to Rule 34, and to more precisely respond to document requests, risk facing increasingly harsh consequences for their failure to do so in the courts.

Matthew S. Almon is a member and Leon Whitten is an associate at Stone Pigman Walther Wittmann LLC in the firm’s New Orleans, Louisiana, office.


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