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Time to Stop Dreaming about Boilerplate Objections – Answer Judge Peck’s Latest “Wake-Up Call”

Magistrate Judge Peck doesn’t hesitate to roust lawyers who are sleeping through their discovery obligations. He delivered his original “wake-up call” in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009). In that case, he admonished lawyers about the need for “careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information.”

Fischer v Forrest Judge Peck Opinion on Federal Rules Civil Procedure Rule 34In his recent opinion in Fischer v. Forrest, 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Judge Peck declares that “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 Rule 34.” He then lays out the three requirements for responses and objections under amended 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.”

Judge Peck criticizes lawyers for not changing their “form file” for discovery responses, leading them to commit continuous violations of Rule 34. He notes that he has seen “too many” non-compliant Rule 34 responses; this copyright and trademark case is only the most recent to break the rules.

The court starts by pointing out defendants’ insufficiently specific, “general objections” to the discovery requests.  Judge Peck then continues his thorough analysis, “Let us count the ways defendants have violated the Rules.” First, defendants did not specify if responsive material would be withheld due to their objections. Second, they did not incorporate the new test of whether discovery is “relevant to any party’s claim or defense;” instead they relied on the outdated “not reasonably calculated to lead to the discovery of relevant evidence” standard.  Third, the responses lacked specificity. Judge Peck writes, “‘overly broad and unduly burdensome’ is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing.” Finally, a time for production was not provided.

Judge Peck concludes his opinion by drawing his line in the sand, making clear that any future discovery response not following Rule 34’s requirements will be deemed a waiver of all objections except privilege.

Wake up, lawyers! It’s been more than a year since the new requirements of Rule 34 went into effect, and it’s disheartening that so many litigants seem ignorant of the changes. Hopefully Judge Peck’s opinion—and the threat of waiving objections—sound an alarm loud enough to wake those lawyers still sleeping through the latest Federal Rules amendments. (If you’re feeling a bit groggy about the amendments, take a look at some of the resources we posted on the blog back in December of 2015 when the new rules went into effect. Or you can read Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary, which highlights the 2015 amendments.)

 

Many thanks to Kellen Sibley-Smith, formerly a Discovery Practice Manager at DiscoverReady, now eDiscovery Project Manager at Wells Fargo, who contributed significantly to this blog post.

Maureen O'Neill