Fischer v. Forrest, No. 14 Civ. 1304, 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017).
“It is time, once again, to issue a discovery wake-up call to the [b]ar in this District,” begins Magistrate Judge Andrew J. Peck in this succinct order. The judge found that the defendants violated Federal Rule of Civil Procedure (FRCP) 34 in practically every way.
In this copyright and trademark violation case, the plaintiff, James Fischer, alleged that he invented a device to facilitate harvesting honey from beehives. The defendants, three individuals and their company, had been an authorized dealer of that device until they breached their contract. They then began advertising and selling what Fischer claimed was an unauthorized knockoff of his invention.
During discovery, the defendants filed their amended Rule 34 responses, which included 17 general objections to the requests 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.” Further, at the close of those objections, the defendant provided responses “[s]ubject to and without waiver” of the stated general objections. The defendant “hereby incorporated [the objections] by reference into each response.”
Complaining that this case was one of “too many non-compliant [r]ule 34 responses,” Judge Peck issued his “wake-up call to the [b]ar” by analyzing the amended rule in detail.
Rule 34(b)(2)(B)–(C), as amended in December 2015, now requires that responses to discovery requests must “[s]tate grounds for objections” with specificity. They must also indicate whether “any responsive materials are being withheld [pursuant to an objection] … and [s]pecify the time for production.” Judge Peck opined that “[m]ost lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes.”
The defense’s general objections “violate Rule 34(b)(2)(B)’s specificity requirement.” The court pointed counsel specifically to the 2015 Advisory Committee Notes to Rule 34 (Notes). The Notes spell out the rationale behind the rule change: to “eliminat[e] any doubt that less specific objections might be suitable.” Therefore, Judge Peck noted, “[g]eneral objections should rarely be used … unless each such objection applies to each document request.” He added that boilerplate language clarifies nothing about the particular facts of a request or an objection. Furthermore, he noted, such generalized statements don’t support an “informed discussion” about discoverable information. Counsel should instead ask how a request is burdensome or overbroad and explain those answers in its response.
The defendants here also failed to “indicate whether any responsive materials [were] withheld” due to those general objections. The Advisory Committee Notes clarify that this amendment was intended to “end the confusion that frequently arises when a producing party states several objections and still produces information.” This tactic “leav[es] the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.”
Judge Peck next addressed the language of the general objection and its relevance “to the subject matter of this litigation.” With the 2015 amendments, this language was “deleted…from Rule 26(b)(1), and lawyers need to remove it from their jargon.” The standard for relevance is whether material is simply “relevant to any party’s claim or defense.”
Finally, the responses failed to specify when discoverable information would be produced. The amended rule requires that production be “completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” The Notes add that, when production occurs incrementally, “the response should specify the beginning and end dates of the production.”
To correct all of these deficiencies, the court ordered the defendants to revise their responses.
More broadly, however, Judge Peck scolded the bar at large, stating that it “is time for all counsel to learn the now-current rules and update their ‘form’ files.” Therefore, effective immediately in Judge Peck’s court, non-compliance with Rule 34’s specificity requirement “will be deemed a waiver of all objections” except for privilege.
The overarching message from this opinion is simple: know the rules. This is the second time Judge Peck has chosen to educate the bar about discovery production. In 2009, he called for “careful thought, quality control, testing and cooperation with opposing counsel in designing search terms” for discovery searches. Similar themes are apparent in this opinion.
Here are a few key takeaways to apply when building your own rule-friendly response process:
- Read and know the rules. The rules are complex. Be sure to diligently review the rules to understand what they actually mean.
- State grounds for objections, ask questions and explain concerns with specificity. This careful preparation can facilitate a more fruitful discussion about the boundaries of discovery. Follow this advice from Judge Peck’s ruling:
- In objections, “state whether any responsive materials are being withheld on the basis of that objection; and
- “Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.”
- Review the rules frequently, especially while developing replacement files that satisfy the amended rules. Purge antiquated language about the standard of relevance and clauses incorporating general objections. When in doubt, consult the Advisory Committee Notes, or check for case law specifically interpreting an amended rule.
- Stay up-to-date on the law of your case’s court. Future cases tend to follow in the footsteps of case precedent. For example, all cases pending in the Southern District of New York will now be held to the letter of Rule 34. In this district, you can be sure that failing to specify objections will not go unpunished.
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