Litigators Warned to Update Their "Form File" Objections and Responses to Comply with Rule 34

In Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Magistrate Judge Alexander J. Peck issued a "discovery wake-up call" to the bar of the Southern District of New York, noting that "[d]espite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses."

More specifically, since December 1, 2015, Federal Rule of Civil Procedure 34 has required that responses to requests for production of documents:

• 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.

In Fischer, the defendants provided 17 "general objections" to the plaintiff's requests for production of documents and incorporated them all by reference.  They also provided specific objections and responses as follows:

1. All emails, correspondence, letters and other written communications between any employee, agent, officer, director, or member of Defendant and Plaintiff from 2008 to present.
   Response: Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Plaintiff's possession.
2. All drafts, revisions, amendments and final versions of Defendant's catalog(s) from 2008 to present.
   Response: Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Plaintiff's possession. Subject to and without waiving said objections, Defendant has provided Plaintiff with the cover page and page advertising either Bee-Quick or Natural Honey Harvester.

The court found the objections and responses to be deficient for three reasons. First, by incorporating their general objections throughout, the defendants did not indicate whether any responsive materials were being withheld on any such basis in violation for Rule 34. For this reason, Magistrate Judge Peck cautioned that general objections should "rarely" be used unless universally applicable. Second, the general objections used the phrases "subject matter of the litigation" and not "likely to lead to the discovery of relevant, admissible evidence." Such language was removed from Rule 26 and is therefore no longer applicable. And third, the objections in requests 1-2, which stated that the requests were "overly broad and unduly burdensome," failed to explain why and were thus improper boilerplate.

For these reasons, Magistrate Judge Peck ordered the defendants to revise their responses in accordance with the new Rules and issued a broader warning to the entire bar: "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 (expect as to privilege)."

Litigators should take heed, whether or not they practice in the Southern District of New York. The major changes to the Rules, in December of 2015, dramatically reshaped parties' obligations in objecting and responding to requests for production of documents. Magistrate Judge Peck has now put us squarely on notice that there will be serious consequences – in the form of automatically waived objections – for failure to comply with these changes.