How to Make Good Objections to Written Discovery

Judges have been saying it for years, and their tolerance for deaf ears is ebbing: Throw away the boilerplate. You could object that a discovery request is overbroad or unduly burdensome, and maybe you’d be right. But if you make scant effort to explain why you are right, you might as well not object at all.

The Southern District of New York again illustrates the point. In Fischer v. Forrest, 14 Civ. 1304/1307 (S.D.N.Y., Feb. 18, 2017), the plaintiff requested the production of almost a decade of emails, letters, and marketing materials. In its responses, the defendant asserted boilerplate objections. Among other things, the defendant objected “to the extent that [the request] is overly broad and unduly burdensome.” The court ruled that those objections did not comply with Rule 34:

[The objection] that the requests are “overly broad and unduly burdensome” is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.

The court ordered the defendant to conform its responses and objections to the requirements of Rule 34. At the same time, the court pointed out that the rules and decisions requiring specificity have been published for years. With that in mind, the court announced that “from now on in cases before this Court, 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 the objection) will be deemed a waiver of all objections (except as to privilege).” [Emphasis added.]

Rule 33 (Interrogatories to Parties) also requires specificity when making objections. Whether you are responding to interrogatories or document requests, take a few tips from Fischer v. Forrest:

How to present a losing objection:

• Make it a lead-off “general objection.”
• Object to anything that is not relevant to the “subject matter” (no longer the standard) or not likely to lead to admissible evidence (no longer the standard).
• Don’t say if anything is being withheld on the basis of the objection.
• Use boilerplate wording from form files.

How to present a winning objection:

• If the request would take an unreasonable amount of time or money to fulfill in relation to the reasonable needs of the case (proportionality), recite specific, persuasive facts that explain why, preferably in an affidavit.
• If the request is not reasonably related to any claim or defense, and if there is no good reason to go beyond the ordinary scope of discovery under Rule 26(b), take the time to explain why in your discovery response.
• Comply with Rule 34’s requirement that you state whether any responsive materials are being withheld on the basis of the objection.
• If you are not producing documents when your responses come due, state when the documents will be produced.

At any discovery conference, you want to sound like the most thoughtful and reasonable lawyer in the room. Start early. Build your discovery objections with the same care that you build your case in chief.

Andrew Felser is with Felser, PC, in Denver, Colorado.

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