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.