eDiscovery Daily Blog

Court Rules Defendant Objections to Discovery Requests Are Too Late, Too Little: eDiscovery Case Law

In Thomas on Behalf of Estate of Thomas v. Bannum Place, Inc., No. 4:17-cv-13492 and No. 4:18-cv-10222 (E.D. Mich. Feb. 6, 2019), Michigan Magistrate Judge Anthony P. Patti granted and denied the plaintiff’s motion to compel in part, ruling that all of the defendant’s objections to the plaintiff’s discovery requests “are WAIVED…because of its failure to timely respond and object to either set of Plaintiff’s discovery requests.”  Judge Patti also granted “reasonable expenses” to the plaintiff in bringing her motion to compel.

Judge’s Ruling

Having considered the motion papers and the oral argument of counsel regarding the defendant’s objections to discovery requests and the plaintiff’s motion to compel, Judge Patti stated:

“All of Defendant Bannum’s objections to Plaintiff’s first and second sets of discovery requests are WAIVED, including objections based on the attorney-client privilege or attorney work product doctrine, because of its failure to timely respond and object to either set of Plaintiff’s discovery requests…Moreover, Defendant not only failed to make timely objections on the basis of privilege or any other bases, but also failed to provide a privilege log or to otherwise meet its burden of establishing the existence of a privilege as to any of the documents at issue. Finally, even to the extent that Defendant has attempted to lodge any untimely objections on the basis of privilege, it has failed to do so “with specificity” and to demonstrate “good cause” for its tardiness, as required by Rule 33(b)(4), and failed to “state whether any documents are being withheld on the basis of that objection[,]” as required by Rule 34(b)(2)(C).”

Judge Patti also ordered the defendant (which had previously served unsigned responses to Plaintiff’s first set of interrogatories) to “serve signed, sworn responses to Plaintiff’s first set of interrogatories by February 19, 2019, without objections, all objections having been waived pursuant to Fed. R. Civ. P 33(b)(4).”  He also ruled on several specific discovery requests still at issue that had been agreed to at a hearing.

Judge Patti also noted that “Rule 37 ‘provides generally for sanctions against parties or persons unjustifiably resisting discovery’” and stated that “Plaintiff is entitled to her reasonable expenses incurred in bringing her motion to compel, because the motion was necessary, Defendant’s failure to timely respond to discovery was not substantially justified, and there are no other circumstances that make an award of expenses unjust. Because the motion was granted in part, with Plaintiff obtaining nearly all of the relief sought, the Court will apportion the award and reduce it by fifteen percent, after calculating the total reasonable attorney fee associated with this motion.”  As a result, Judge Patti ordered the plaintiff to “submit a bill of costs, or stipulated bill of costs, by February 19, 2019 for time incurred ‘for the motion,’ including time drafting the instant motion to compel, reply, and the joint statement, and time traveling to and from and spent attending the hearing”.

So, what do you think?  Should untimely objections always be waived or should special circumstances be considered?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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