It has been well over a year since the 2015 amendments to the Federal Rules of Civil Procedure went into effect, and members of the judiciary are increasingly less tolerant of attorneys’ failure to conform to the new standards. This was made abundantly clear by U.S. Magistrate Judge Andrew Peck of the U.S. District Court of the Southern District of New York. He took the defendants to school on the form of their objections to requests for production in Fischer v. Forrest, 14 Civ. 1304-PAE-AJP, 2017.

Every litigator should now know that the changes to Rule 34 indicate that “responses to discovery requests must:

  • State grounds for objections with specificity;
  • 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 the production will begin and when it will be concluded.” ;

The defendants’ fatal mistake was generally objecting to each request for production because it was “overly broad and unduly burdensome,” not “likely to lead to the discovery of relevant, admissible evidence” and “requests information already in the plaintiff’s possession.”

In its Feb. 28th opinion, the court noted that these boilerplate objections should not be used “unless each such objection applies to each document request (e.g., objecting to production of privileged material).” The objections also violated Rule 34(b)(2)(C) because they failed to identify whether any responsive materials were being withheld on the basis of the objection.

The 2015 amendments changed the standard for the scope of discovery to “relevant to any party’s claim or defense.” Thus, an objection based on whether something is likely to lead to the discovery of admissible evidence is moot. Further, responses must “indicate when documents or ESI that defendants are producing will be produced." Lastly, just asserting that the requests are overly broad and unduly burdensome is not enough — the objection must indicate why the request is burdensome or how the request is overly broad.

Providing specificity can be daunting in cases where defendants face broad discovery requests — it may not be clear what objections apply to such broad requests. Just identifying all the people who might have documents responsive to the requests could impose an undue burden. That being said, defense counsel should aim to provide as much specific information as possible to show why the request is overbroad and not tied to the claims or defenses, or why, as written, the response is subject to other objections.

The defendants got off easy this time — Judge Peck required only that they revise their responses to comply with the rules. Next time, counsel may not be so lucky. The conclusion of Judge Peck’s opinion stated that “from now on in cases before this court, any discovery responses that do 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).” To ignore this wake-up call from the judiciary would be ill-advised.