Rule 34 of the Federal Rules of Civil Procedure was recently amended to provide that if an objection is made to a request for production ("RFP"), the objection must state whether any responsive documents are being withheld on the basis of that objection. This is an important amendment to the Federal Rules, as it eliminates significant gamesmanship by attorneys in regard to responses to RFPs.
The Rule change was brought about by attorneys who make broad objections to RFPs without articulating whether any documents are being withheld. Often, attorneys then state that notwithstanding the objection, certain documents are being produced, to make it appear that documents are not being withheld. This type of response is problematic because it is unclear whether the objection is made as a prophylactic measure or whether documents have actually been withheld based upon the objection.
As a result of the Rule change, this litigation tactic should end. By prohibiting sweeping objections that do not make clear that documents are being withheld, attorneys will have to carefully assert objections. There is little benefit to making objections and then producing the very documents that the objection pertains to. This conduct may create a waiver.
Obviously if attorneys have to identify whether documents are being withheld, simply making an objection without withholding documents will become a tactic of the past.
The change to the Federal Rules was long over-due and will be very helpful to the discovery process.
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