Boilerplate Discovery Objections May Result in Waiver

A magistrate judge has issued a stern wake-up call to lawyers practicing in the U.S. District Court for the Southern District of New York: Boilerplate responses to discovery requests violate the specificity requirements of the December 2015 amendments to Rule 34 of the Federal Rules of Civil Procedure. In Fischer v. Forrest, the court warned lawyers that any discovery response in any future case before the court failing to state objections with specificity will be deemed a waiver of all objections except those based on privilege. ABA Section of Litigation leaders advise lawyers to update their discovery forms and ensure objections meet the specificity requirements of amended Rule 34.

Amendments to Rule 34 Require Specificity
Rule 34 governs requests for production and responses in civil lawsuits. The U.S. Supreme Court approved and submitted to Congress proposed amendments to the Rules on April 29, 2015, and those amendments took effect on December 1, 2015. Before the amendments, lawyers often submitted broad and generic "general objections" and incorporated those general objections into their specific responses to requests for production.

Amended Rule 34 limits the previous practice of submitting broad objections to requests for production. Specifically, amended Rule 34(b)(2)(B) requires a responding party to "state with specificity the grounds for objecting to the request, including the reasons." Any objection must also "state whether any responsive materials are being withheld on the basis of that objection," as required under amended Rule 34(b)(2)(C). In addition, amended Rule 34(b)(2)(B) provides, "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."

Court Chastises Lawyers for Use of General Objections
In Fischer v. Forrest, the court criticized lawyers for relying on their outdated discovery response "form file," leading to continued violations of amended Rule 34. The court noted "too many non-compliant Rule 34 responses" and that this case was only the latest to fail to comply with amended Rule 34.

In this case, the defendants' Rule 34 responses contained 17 "general objections," including a general objection "to the extent [the requests] call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence." The defendants also incorporated their general objections into their specific responses to the plaintiff's requests for production. In addition, the defendants' responses to the plaintiff's requests for production included objections "to the extent that [the request] is overly broad and unduly burdensome."

The court first noted that incorporating the defendants' general objections into each of their responses violated Rule 34(b)(2)(B)'s specificity requirement and Rule 34(b)(2)(C)'s requirement to indicate whether responsive materials are being withheld on the basis of an objection. According to the court, "[g]eneral objections should rarely be used after December 1, 2015, unless each such objection applies to each document request."

The court then noted the defendants had relied on outdated language in the rules. Amended language now refers to discovery related to material "relevant to any party's claim or defense" and not discovery about the "subject matter of this litigation," and references to discovery not "likely to lead to the discovery of relevant, admissible evidence" have been removed from the rules. Finally, the court noted the defendants' objection that plaintiff's requests were "overly broad and unduly burdensome" was "meaningless boilerplate."

The court ordered the defendants to revise their responses to comply with the rules, emphasizing that the amendments "are now 15 months old" and "[i]t is time for all counsel to learn the now-current rules and update their 'form' files." To encourage future compliance with the amended rules, the court ordered that any discovery response that does not comply with amended Rule 34's specificity requirements will be deemed a waiver of all objections except those based on privilege.

Section Leaders Emphasize Conformity with Amended Rule 34
Section leaders encourage lawyers to update their form files and comply with the amended rules. "Lawyers need to conform their objections to the current rules by replacing general objections with more specific ones for each request and by using the updated Rule 34 terminology," advises Kenneth M. Klemm, New Orleans, LA, cochair of the Section of Litigation's Pretrial Practice & Discovery Committee. "The days of cutting and pasting discovery responses are over," concludes Robert J. Will, St. Louis, MO, cochair of the Section's Pretrial Practice & Discovery Committee. "Lawyers should take care to craft objections specific to the discovery request at issue or face the consequences," he adds.

Section leaders note the risk of sanction for any future failure to comply with the amended rules. "All of us run the risk of being sanctioned if you do not conduct a careful review of your form discovery responses and conform those objections and responses to the current rule," Klemm adds. "The decision will do more to ensure conformity with the amended Rules because it highlights the fact that lawyers will face consequences if they fail to change their practices," Will says.


Erin Louise Palmer is an associate editor for Litigation News.


Keywords: discovery, objection, Federal Rules of Civil Procedure, Rule 34


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