By Joshua Verna
Litigators responding to document requests in federal court do so in many instances without a comprehensive understanding of the applicable rules. For many years, the vagarities in the language of the federal rules resulted in practicing litigators using pre-formulated responses to document requests, often containing broad reaching standardized and generalized objections for each request, commonly capped by the refrain that that the information sought was “not reasonably calculated to lead to the discovery of admissible evidence.”
In December 2015, changes were made to the Federal Rules of Civil Procedure designed to eliminate the use of this antiquated practice, including changes to, for starters, the wording of Rule 26(b). Rule 26(b) was amended so as to narrow the scope of permissible discovery requests by eliminating the phrase “reasonably calculated to lead to the discovery of admissible evidence.” In its place, the redraft reintroduced a “proportionality test” which requires the examination of a number of factors to determine whether a request is proper, including: the amount in controversy; the parties’ relative access to relevant information; the parties’ resources; the importance of discovery in resolving issues; and whether the burden or expense of the discovery is outweighed by the benefit. Fed. R. Civ. P. 26(b); Sibley v. Choice Hotels Int’l, No. 14-CV-634 (JS)(AYS), 2015 WL 9413101, at *3 (E.D.N.Y. Dec. 22, 2015). This amended standard is expressly designed to eliminate the wide scope of discovery available under the old rule by providing a clear delineation of the discovery that is now permitted. Sibley, 2015 WL 9413101, at *3; Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016).
The redraft counterbalanced this narrowing of the scope of discovery through changes to Rule 34 that require the responding party to make a focused and comprehensible document response. Rule 34(b)(2) now requires that objections to document requests be stated “with specificity,” and also requires parties to indicate if documents are being withheld pursuant to such an objection.
Furthermore, Rule 34 also requires the responding party to produce copies of documents electronically stored information rather than simply permitting inspections. These are among the changes to the discovery rules that are designed to expedite the discovery process.
Practitioners who are interested in how the post-2015 amendments to Rule 34 should be applied and implemented are well served to familiarize themselves with the Opinion and Order of Magistrate Justice Peck in Fischer v. Forrest, No, 14-CV-1304 (PAE)(AJP) 2017 WL 773694 (S.D.N.Y Feb. 28, 2017).
Based on Judge Peck’s Order, it is advisable that in the post-2015 amendment world, counsel should avoid incorporating all general objections into each document response. Such an act violates both Rule 34’s specificity requirement as well as Rule 34’s requirement to indicate whether any responsive materials are being withheld on the basis of an objection. Fischer, 2017 WL 773694, at *2. Incorporation of general objections should be avoided, unless each objection will apply to each document request, for example, objecting to produce privileged material. Id at *3.
Moreover, it is not enough to object simply on the grounds that the request is “overly broad and unduly burdensome.” Rather, practitioners must indicate exactly how each request is either overly broad, unduly burdensome, and now — not proportionate. Id.
Counsel should also make sure they omit objections on the basis that the request is not “likely to lead to the discovery of relevant, admissible evidence,” as this language was eliminated from the definition for the scope of permissible discovery in the 2015 amendments. Id. Despite the elimination of this language, practitioners have continued to cite to it, even fifteen months after the changes were adopted. Id.
Failure to comply with Rule 34’s specificity requirements and failure to indicate whether responsive material is being withheld on the basis of an objection will be deemed a waiver of all objections (except as to privilege). Id.
Going forward, it will be important for counsel to be mindful of their use of general objections. Practitioners must also be vigilant about replacing outdated language in form responses with updated language, reflective of the amended Rules. Failure to do so runs the great risk of waiver.
Interestingly, this is not Judge Peck’s first “wake-up” call to the district. For more discovery guidance, see his 2009 Opinion calling for quality control and cooperation regarding production of ESI. William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009).
If you are interested in advice or a consultation on this subject or other legal matters, feel free to contact us at (212) 682-1400.