What should a party include in its objections to its adversary’s discovery requests?

How should a party draft its objections to it’s opponent’s discovery requests? Very carefully!

Author: Sarah E. Hsu Wilbur
Case Citation: Fischer v. Forrest, Nos. 14-cv-1304 & 14-cv-1307, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017)
Employee/Personnel/Employer Implicated: Company and Company’s Counsel
eLesson Learned: Counsel beware: If you do not carefully object to your opponent’s discovery requests with specificity and indicate whether you are withholding any materials based on those objections in your responses, a court could deem all objections (other than privilege) as waived.
Tweet This: Warning: Be specific in objecting to your opponent’s discovery requests or risk waiving all objections (except for privilege).

If you are going to object to a discovery request, including eDiscovery requests, you should be prepared to state with specificity why you are objecting and whether you are withholding any materials based on those objections. Otherwise, you risk waiving all objections (other than privilege). The general boilerplate objection language such as objecting because something is “overly broad and unduly burdensome” that many attorneys used for so long in responding to discovery requests is no longer sufficient, and hasn’t been for some time now. Yet some attorneys still continue to use such boilerplate language that violates the Federal Rules of Civil Procedure (FRCP) as amended in 2015—specifically Rule 34, which clearly states that in objecting to discovery and ESI request responses, parties must state, among other things, with specificity any ground for objecting to these requests. At least one district court appears fed up with these ongoing non-compliant discovery responses and commented that “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District.”

In this case, the defendants objected to the plaintiff’s discovery requests with seventeen “general objections” including a boilerplate objection to “information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.” The court noted that the 2015 amendments to FRCP 26(b)(1) limited discovery to material “relevant to any party’s claim or defense,” not material “relevant to the subject matter of litigation,” so defendants using the latter language contravened the rule. The court similarly stated that the test since the amendments has been “whether evidence is ‘relevant to any party’s claim or defense,’” not the old test of whether it is “reasonably calculated to lead to admissible evidence,” so defendants using this language also did not comply with the rule. The court said, “lawyers need to remove [this language] from their jargon.”

As an example, the plaintiff requested the following documents be produced in discovery: “All emails, correspondence, letters and other written communications between any employee, agent, officer, director, or member of Defendant and Plaintiff from 2008 to present.” The defendants objected to this request, stating that it was “overly broad and unduly burdensome,” which the court said was “meaningless boilerplate” and followed that statement by asking “Why is it burdensome? How is it overly broad? This language tells the Court nothing.”

The court concluded that the defendants’ objections violated FRCP 34 in a number of ways. First, they were not specific enough. Rule 34(b)(2)(B) as amended in 2015 requires that with respect to discovery and ESI request responses, parties must state with specificity any ground for objecting to these requests. The defendants’ general boilerplate responses were not sufficient to comply with this rule.

Second, the defendants’ objections did not indicate whether any responsive materials were being withheld on the basis of their objection, which Rule 34(b)(2)(C) requires parties to do (because it is meant to help prevent confusion over “whether any relevant and responsive information has been withheld on the basis of the objections” in cases where a party objects but still produces some information).

Third, for the documents and ESI the defendants did not object to producing in discovery, they failed to state the time frame during which they would produce that requested information, which they were required to do under Rule 34(b)(2)(B).

The court ultimately ordered the defendants to revise their objections and discovery request responses to comply with the Rules. The court then concluded by giving this warning for future attorneys to heed: “It is time for all counsel to learn the now-current Rules and update their ‘form’ files. From now on in cases before this Court, 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).”

Sarah is a Seton Hall University School of Law student (Class of 2018), pursuing an Intellectual Property concentration through the Privacy and Security Law Track. After graduating, she will begin working as a Litigation Associate in a large Manhattan law firm. Sarah graduated from the University of Florida in 2009 with a B.S. in Journalism, and she worked as both a multimedia journalist and a legal assistant before attending law school.

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