Just over a year ago, I authored a Product Liability Advocate blog entry and a Law360 article explaining appropriate methods for asserting objections under Federal Rule of Civil Procedure 34, as amended on December 1, 2015. Last week, Judge Andrew J. Peck, U.S.M.J. of the Southern District of New York, issued an order that in his court any discovery objections that fail to comply with Rule 34 of the Federal Rules of Civil Procedure, as amended on December 1, 2015, will be deemed waived:

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).

See Fischer v. Forrest, 14-cv-01307-PAE-AJP, Document 159 (S.D.N.Y, Feb. 28, 2017).

As explained in Judge Peck’s Order & Opinion (and in my 2016 blog entry and article), responses to discovery requests must now:

  • State the grounds for objections with specificity
  • State whether any responsive materials are being withheld on the basis of that objection
  • Specify the time for production, and if a rolling production, when production will begin and when it will be concluded.

For nearly a decade, Judge Peck has been among the most noted leaders within the federal judiciary as to the handling of discovery issues, so it is likely that this approach will be adopted across many federal courts.

I predicted back in March 2016 that best practices for responding to document demands under amended Rule 34 would emerge in the coming months. While perhaps it seems that best practices are still emerging, the framework I set forth presents a reasonable approach that meets the requirements of Rule 34, is consistent with the concepts of cooperation and proportionality in discovery, and follows the approach outlined by Judge Peck.