A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection followed by a bare "conditional" response, i.e., stating that "Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents," is now considered improper and may result in an inadvertent waiver of the party's stated objections. Several federal district courts are concluding that such a conditional response, without specifying what is being withheld based on the objection and what is being produced, is improper and, most significantly, that a party may waive its objections by responding conditionally.

In a recent decision in Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, a U.S. Magistrate Judge in the District of Kansas joined this growing trend of overruling objections when counsel provides a conditional response. The court held that when answering discovery, "whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands." Thus, a purported reservation of objections followed by a conditional response is "improper" and ultimately has the effect of waiving the objections to the particular document requests.

In Comcast, plaintiff sued the defendants for patent infringement. Defendants served plaintiff with document requests related to a separate patent infringement trial. In response to three of the document requests, plaintiff objected on the basis that they sought attorney-client privileged and work product information, but then stated: "Subject to and without waiver of the foregoing objections . . . [plaintiff] will produce nonprivileged responsive documents within its custody and control after a reasonably diligent search . . . ." Defendants filed a motion to compel plaintiff to produce the documents.

The court held that "[t]his purported reservation of rights by [plaintiff] was improper and ultimately has the effect of waiving [plaintiff's] objections to these specific document requests. Accordingly, the court granted plaintiff's motion to compel and ordered plaintiff to produce the documents requested in the three requests.

In regard to the other document requests, to which plaintiff stood on its objections, the court considered the merits of plaintiff's objections and ultimately held that the objections were proper and denied the motion to compel as to those requests.

The Comcast court reasoned that conditional responses are not permitted by Fed.R.Civ.P. 34. Rule 34(b)(2) permits only three responses to a request for production of documents: produce the documents as requested, "state an objection to the request" as a whole, or state an "objection to part of [the] request" provided that the response specifies the part objected to and responds to the non-objectionable portion.

The plaintiff in Comcast subsequently filed a motion for reconsideration of the Court's order. Defendants joined the plaintiff in asking that the court to withdraw its holding that the plaintiff waived privilege via its conditional responses. Due to the "unusual circumstances" of the case and the joint request of the parties, the Court reconsidered the order and withdrew its holding as to waiver, but affirmed its ruling. The court specifically cautioned that "[t]he court remains unpersuaded that conditional discovery responses are ever appropriate." The court warned that practitioners "should not view this as a retreat from the court's ruling that when a party objects to discovery but nonetheless answers 'subject to' the objection, the objection will be deemed waived."