The use of a conditional response to a document request under Fed. R. Civ. P. 34 is commonplace, but it is now so wrought with peril that a better practice would be to end its use. A conditional response sets forth objections and states that documents are being produced "subject to the stated objections." The trend of the federal courts is to hold that a conditional response to a document request is improper and constitutes a waiver of objections. E.g., Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, (D. Kan. Feb. 11, 2014).
Moreover, the Proposed Amendments to the Federal Rules that are expected to take effect in December 2015, will almost certainly put an end to the practice. The Proposed Amendments would require that an objection in a response be made with specificity and that the response state whether any documents are being withheld on the basis of the objection. The most recent version of the proposed amendments emerged from the Advisory Committee's Meeting in Portland, OR, in April 2014.
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Civil/CV2014-04.pdf .
Originally published July 2, 2014
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