On February 28, 2017, Southern District of New York Magistrate Judge Andrew J. Peck issued a warning shot, stylized as a “wake-up call,” to the SDNY Bar: comply with the now 15-month-old amendments to the Federal Rules of Civil Procedure when objecting to requests for the production of documents and electronically stored information (ESI), or do not bother objecting at all.
As a reminder, since December 1, 2015, Rule 34, which governs the production of documents and ESI, requires responses to discovery requests to: (1) state the grounds for objections with specificity; (2) state whether any responsive materials are being withheld on the basis of that objection; and (3) specify the time for production and, if a rolling production, when the production will begin and end.
Notwithstanding these non-discretionary directions, the defendants in Fischer v. Forrest, 14 Civ. 1304, incorporated by reference 17 “general objections” into their Rule 34 Responses to each of plaintiff’s individual discovery requests. Doing so “violate[d] Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection,” Magistrate Judge Peck found.
With regard to the plaintiff’s individual requests, the defendants objected to several on the ground that they were “overly broad and unduly burdensome.” Calling this objection “meaningless boilerplate,” the court held that it violated amended Rule 34’s specificity requirement because it failed to identify why the request was burdensome, and how it was overly broad; in other words, the language told the court nothing.
Fed up that these types of non-compliant responses are, in Magistrate Judge Peck’s view, all too commonplace, the court warned all future litigants that “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 objection) will be deemed a waiver of all objections (except as to privilege).”
Whether other members of the bench within (or outside) SDNY will take a similar stance to the one taken by Magistrate Judge Peck is unclear. Also unclear is the level of specificity and types of information that a litigant should provide its adversary (and, in turn, the court) to transform an “unduly burdensome” objection from “meaningless boilerplate” to one that is compliant with amended Rule 34—and potentially meritorious. Unfortunately, despite his frustration with current practice, in his order Magistrate Judge Peck declined to offer any suggestions to attorneys on how they might accomplish this. It therefore remains to be seen what factors courts will consider when evaluating a party’s compliance with Rule 34 and whether objections were stated with sufficient specificity. It is possible that each case will be evaluated on its own unique facts and circumstances and there will not be a one-size-fits-all approach. In fact, even Magistrate Judge Peck agreed that general objections may still be used when each such objection applies to a particular document request (e.g., objecting to produce privileged material).
Given the still relative newness of the amendments, the fact that some lawyers have been slow to incorporate the requisite changes into their practices, and the relative dearth of case law analyzing how particular factual circumstances factor into inquiries under Rule 34, at present, there does not appear to be a “magic bullet” that litigants can (or must) fire to ensure an objection to a discovery request will comply with amended Rule 34. Stay tuned for developments sure to impact discovery for years to come.
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