It has been more than a year since the update to the Federal Rules of Civil Procedure, and Judge Peck is losing patience with litigators who do not follow the “no-longer-new 2015 Amendments.” Recently, in Fischer v. Forrest, he took attorneys to task for not following the updates to Rule 34, and detailed three basic things responses to discovery requests must do.
First, responses must state grounds for objections with specificity: “General objections should rarely be used after Dec. 1, 2015, unless the objection applies to each document request (e.g., objecting to produce privileged material).” General objections on “the basis of non-relevance of the ‘subject matter of this litigation’” are unnecessary given the updated language of Rule 26(b)(1), which makes subject matter discovery impermissible. Furthermore, be aware of outdated language that exposes ignorance of the plain language of the new rules. For example, objecting to a request on the basis that is not “likely to lead to the discovery of relevant, admissible evidence” is also unnecessary given the updated language of Rule 26(b)(1), which removed “reasonably calculated” as a “definition for the scope of permissible discovery.” Finally, avoid boilerplate language. Nothing is “overbroad and burdensome” without reasons to support why it is overbroad and burdensome.
Second, responses must state whether any responsive materials are being withheld on the basis of that objection.
Third, responses must indicate the time for production and, if a rolling production, when production will begin and when it will be concluded.
Attorneys need to do better to understand and comply with the Rule 34 changes or else clients’ interests and attorneys’ own reputations will be at risk. As Judge Peck concludes, “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).”