Beware of "Subject To and Not Waiving" in Discovery Responses

Courts are becoming increasingly hostile to discovery responses that are provided "subject to and not waiving" a party's objections.  These responses—termed "conditional discovery responses"—may result in waiver of discovery objections.

The takeaway from the cases discussed below is that lawyers should check the rules and case law in their jurisdiction before using conditional discovery responses.  Additionally, regardless of whether conditional language is used, all discovery responses should specify whether documents are being withheld based on objections.

Courts have identified three main issues with conditional discovery responses:

1. They can be confusing.What does it mean to produce documents "subject to and not waiving" various objections?  It is not always clear.  Perhaps the party is producing some documents and withholding others based on its objections.  Or, perhaps the party is producing all responsive documents, but simply noting that the discovery request is objectionable as stated.
   
   In the words of one court, the requesting party is "left guessing as to whether [the producing party] has produced all documents, or only produced some documents and withheld others."  See Pro Fit Mgmt., Inc. v. Lady of Am. Franchise Corp., No. 08-CV-2662, 2011 WL 939226, at *9 (D. Kan. Feb. 25, 2011) objections overruled, 2011 WL 1434626 (D. Kan. Apr. 14, 2011).  (Though less common, courts have also criticized the use of conditional discovery responses to interrogatories.  See Mann v. Island Resorts Dev., Inc., No. 3:08CV297, 2009 WL 6409113, at *3-4 (N.D. Fla. Feb. 27, 2009)).
2. They may render discovery unmanageable.Another concern is that conditional discovery responses may lead to increased motion practice during discovery.  "Absent an indication of what, exactly, the responding party was objecting to. . . courts would be flooded with motions to compel by litigants seeking to confirm that undisclosed responsive documents did not exist. And courts would then be forced to ask counsel, over and over again, 'Do other documents exist?'"  Haeger v. Goodyear Tire and Rubber Co., 906 F. Supp. 2d 938, 977 (D. Ariz. 2012).
3. They may be inconsistent with the Federal Rules of Civil Procedure. "The plain language of Rule 34 requires a partial response be identified as such."  Id.  See Fed. R. Civ. P. 34(b)(2)(C) ("An objection to part of a request must specify the part and permit inspection of the rest."); see also Fed. R. Civ. P. 33(b)(3) ("Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.").

But conditional discovery responses sometimes obscure whether the party is only providing a partial response (i.e., withholding documents).  See Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, No. 11-2684, 2014 WL 1569963, at *2 (D. Kan. Apr. 18, 2014) ("[T]he practice of responding to discovery requests by asserting objections and then answering 'subject to' or 'without waiving' the objections is confusing, unproductive, and in violation of federal discovery rules.").

For these reasons, several courts have disapproved of conditional discovery responses, with some courts even holding that the use of such responses will result in waiver of discovery objections.  See, e.g., id. at *3 ("[W]hen a party objects to discovery but nonetheless answers 'subject to' the objection, the objection will be deemed waived."); Mann, 2009 WL 6409113, at *3 ("In this court, however, no objections are 'reserved' under the rules; they are either raised or they are waived."); Westlake v. BMO Harris Bank N.A., No. 13-2300, 2014 WL 1012669, at *3 (D. Kan. Mar. 17, 2014) (the court "strongly disapproves" of conditional discovery responses); Pepperwood of Naples Condo. Ass'n, Inc. v. Nationwide Mut. Fire Ins. Co., No. 2:10-CV-753, 2011 WL 4382104, at *4–5 (M.D. Fla. Sept. 20, 2011) (cautioning parties about the use of conditional discovery responses).

However, while these opinions criticized conditional discovery responses, the issue was not just the "subject to and not waiving" language itself.  Rather, the problem was that the discovery responses at issue failed to indicate whether the responses were full and complete.  Therefore, the key takeaway is that all discovery responses should specify whether the response is complete or partial, and whether the party is withholding documents based on its objections.