Rule 34(b)(2)(B) Responding to Each Item
For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. 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.
Rule 34(b)(2)(C) Objections
An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
Case law following the rule amendments shows that courts are quick to reject boilerplate objections and criticize parties using stock, general objections. One court noted that boilerplate objections such as “overbroad, unduly burdensome and oppressive, and not reasonably calculated to lead to the discovery of admissible evidence” are inappropriate and unpersuasive and this is even more clear under the amendments to Rule 34. Moser v. Holland, No. 2:14-CV-02188, 2016 WL 426670, at *1, 3 (E.D. Cal. Feb. 2016). The Eastern District of California noted that Rule 34 requires that the responding party “must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Because the defendants in Moser failed to comply with the specificity requirement, the court granted the plaintiff’s motions to compel, ordered the defendants to produce the documents that were responsive to the discovery requests, and awarded the plaintiff costs as a sanction for having to file the motion.
The rule amendments did not change the burden on the party resisting discovery; rather, the amendments identify that the key under Rule 34 is specificity in making objections: “The party resisting discovery must show specifically how each discovery request is” objectionable. Mir v. L-3 Comm’cns Integrated System, L.P., No. 3:15-CV-2766, 2016 WL4427488, at *3 (N.D. Tex. Aug. 22, 2016). For instance, a party may assert that the discovery request is overbroad but should explain the scope of the request that is overbroad and the scope of the request that is not overbroad. See Sprint Comm’cns Co. L.P. v. Crow Creek Sioux Tribal Court, 316 F.R.D. 253, 263 (D.S.D. 2016) (citing to Advisory Committee Notes 2015 Amendment). “The responding party has the obligation to explain and support its objections.” Kissing Camels Surgery Center L.L.C. v. Centura Health Corp., No. 12-CV-03012, 2016 WL 277721 at *2 (D. Colo. Jan. 22, 2016). For example, a party may object that the document request is overbroad because it fails to limit the relevant timeframe despite the fact that the issues in the complaint occurred (insert date range), responding party has therefore limited its search for responsive documents to (insert date range).
Courts have shown a willingness to rule that discovery is disproportionate and impose limitations when a party’s objection is specific, clear, and well grounded in the proportionality factors. For instance, in Black v. Buffalo Meat Serv., Inc., No. 15-CV-49S, 2016 WL 4363506, at *6 (W.D.N.Y. Aug. 16, 2016), an employment-discrimination case, the court agreed with the defendants’ tailored proportionality objections and rejected the plaintiff’s requests for broad categories of documents as disproportionate to the claims at issue (e.g., seeking every type of document involved in the employment relationship). By way of an example, a party may object that the requested documents are not relevant to the parties’ claims or defenses (indicate reason why documents are not relevant); therefore, the responding party has limited its search for responsive documents to (indicate the issues, claims, or defenses). By specifying the reasons why the discovery request is disproportionate and identifying the limitations, the objecting party is providing a basis for the court to reject a motion to compel.
Litigators should stop using their stock, general objections when responding to discovery. Based on the amendments to Rule 34 and the case law interpreting such amendments, specificity is key to making proportionality and other objections to limiting unnecessary or expensive discovery.
Keywords: litigation, pretrial practice, discovery, objections, amendments, Rule 34
Tracy DiFillippo is a partner with Armstrong Teasdale, LLP in Las Vegas, Nevada.