eDiscovery Daily Blog

• March 7, 2017

In Fischer v. Forrest, Nos. 14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP) (S.D.N.Y. Feb. 28, 2017), New York Magistrate Judge Andrew J. Peck ordered the defendants “to revise their Responses to comply with the Rules”, specifically Rule 34(b)(2)(B) and Rule 34(b)(2)(C), amended in December 2015 requiring objections to be stated with specificity and directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.

Judge Peck wasted no time getting to the point in his ruling, stating:

“It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:

• State grounds for objections with specificity;
• An objection must 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.

Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes.”

In these related cases asserting claims for, among other things, copyright and trademark violations, the defendants’ amended Rule 34 Responses contained (according to Judge Peck) “17 ‘general objections,’ including General Objections No. I stating that ‘Defendant objects to the requests to the extent that they call 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.’”

Judge Peck proceeded to “count the ways” that the defendants had violated the Rules:

“First, incorporating all of the General Objections into each response violates 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. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).”

“Second, General Objection I objected on the basis of non-relevance to the ‘subject matter of this litigation.’…The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material ‘relevant to any party’s claim or defense…’ Discovery about ‘subject matter’ no longer is permitted. General Objection I also objects that the discovery is not ‘likely to lead to the discovery of relevant, admissible evidence.’ The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon…”

“Third, the responses to requests 1-2 stating that the requests are ‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections…”

“Finally, the responses do not indicate when documents and ESI that defendants are producing will be produced.”

As a result, Judge Peck ordered the defendants “to revise their Responses to comply with the Rules”, stating:

“The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. 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).”

So, what do you think?  Do you still encounter boilerplate objections in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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