March 30, 2020 Practice Points

Withholding Documents on the Basis of an Objection: What to Know about Rule 34(B)(2)(C)

Certain commonplace objection practices are explicitly prohibited by the Federal Rules of Civil Procedure.

By Ashley P. Hayes

Objecting to discovery requests is a routine but significant part of the discovery process. Objections are critical tools that allow attorneys to protect clients’ interests and rights. But certain objection practices—many of which are commonplace among attorneys—are explicitly prohibited by the Federal Rules of Civil Procedure. Failing to adhere to these restrictions can lead to an array of consequences including sanctions in some cases.

Rule 34 of the Federal Rules of Civil Procedure provides for discovery and inspection of documents and things in the course of developing a case for trial. Subsection (b)(1)(A) states that the request must “describe with reasonable particularity each item or category of items to be inspected.” See Fed. R. Civ. P. 34(b)(1)(A).

Although a party is permitted to object to a Rule 34 request, subsection (b)(2) sets forth specific guidelines that the responding party must follow when asserting objections. Effective December 1, 2015, subsection (b)(2)(C) was amended to require that “an objection to a . . . request must state whether anything is being withheld on the basis of the objection.” Fed. R. Civ. P. 34(b)(2)(C) Advisory Committee Notes, 2015 Amendments. The intent of subsection (b)(2)(C) was 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.” Id. The amendment to the rule created a mechanism for the requesting party to receive notice of “the fact that documents have been withheld and thereby facilitate an informed discussion of the objection,” thus increasing the likelihood of resolving the objection without court intervention.

Failure to follow subsection (b)(2)(C) by stating whether responsive documents were withheld based on the objection could subject a responding party to having the objection overruled, or even lead to sanctions. See, e.g., Chow v. SentosaCare, LLC, 19-cv-3541, 2020 WL 559704, at *3 (E.D.N.Y. Jan. 23, 2020) (threatening sanctions for violating the requirements of Rule 34(b)(2)(C)); Bally v. First Nat'l Bank Omaha, 17-cv-10632, 2018 WL 1558861, at *1 (E.D. Mich. Jan. 17, 2018) (compelling responding party to produce withheld documents and awarding attorney fees against it); Polycarpe v. Seterus, Inc., 6:16-cv-1606, 2017 WL 2257571, at *4 (M.D. Fla. May 23, 2017) (overruling objections for failing to comply with Rule 34(b)(2)); Watkins v. Trans Union, LLC, 2:14-cv-00135, 2018 WL 3008639, at *2 (S.D. Ind. June 15, 2018) (overruling objections and precluding limitations on the scope of employee’s deposition).

As such, it is essential that counsel take the time to carefully consider his or her objections to discovery requests, determine whether the client is in possession or control of documents that would be responsive if the objections were overruled, and expressly state whether those documents have been withheld on that basis. Alternatively, a response that sets forth any limitations that controlled the search for responsive and relevant materials is sufficient to notify the opposing party that documents were withheld. Fed. R. Civ. P. 34(b)(2)(C) Advisory Committee Notes, 2015 Amendments. If not, counsel risk overruled objections, sanctions, and diminished standing before the court.

Ashley P. Hayes is an attorney in the Tampa, Florida, office of Shook Hardy & Bacon L.L.P.

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