United States: Objections To Document Demands Under Amended Rule 34

The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this approach is no longer acceptable in federal courts. December 1, 2015, marked the enactment of a substantial package of amendments to the Federal Rules of Civil Procedure that was driven in large part by concerns related to e-discovery and the production of electronically stored information (ESI). Although the amendments to Rule 26(b)(1) and Rule 37(e) have received greater attention, a major revision to Rule 34 will result in a more significant day-to-day change for litigators. Notably, objections to discovery requests must now (1) state with specificity the grounds for objecting and (2) state whether any responsive materials are being withheld on the basis of that objection. Additionally, producing parties must indicate when a document production will be completed.

Rule 34 of the Federal Rules of Civil Procedure (as Amended December 1, 2015)

The relevant sections of amended Rule 34 provide as follows:

Rule 34(b)(2)(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

Rule 34(b)(2)(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

Consequently, boilerplate objections are no longer acceptable in federal courts. In fact, general objections by their very nature appear entirely prohibited under amended Rule 34.

Time will tell as to the level of specificity that will be required of parties objecting to document demands (though it is noted that Rule 33(b)(4) has required since 1993 that "the grounds for objecting to an interrogatory must be stated with specificity"). But the drafters have provided clear guidance as to stating whether responsive materials are being withheld on the basis of an objection. As confirmed in the Rule 34 Committee Notes, it is acceptable to indicate whether materials have been withheld by stating "the limits that have controlled the search for responsive and relevant materials." In other words, by identifying the scope of a search (i.e., search terms, custodians or data locations), the producing party is stating that materials outside of that scope have been withheld.

Considering the nature of the amendment to Rule 34, there is perhaps no longer such a thing in federal courts as form responses to document demands. That being said, litigators can operate under a general framework while individually tailoring objections to specific document demands. It also must be noted that counsel's success cooperating with plaintiff's counsel and reaching an agreement on the scope of discovery could significantly impact the manner in which objections need to be asserted. Regardless, litigators must develop a new method for objecting to document demands and can no longer rely on the "kitchen sink" approach when asserting objections.

General Framework for Objections under Amended Rule 34

The traditional approach of first asserting objections and then identifying responsive documents should be reversed. Some litigators have been taking this approach for years (though without necessarily complying with the requirements under amended Rule 34) in a desire to indicate a level of cooperation and avoid an appearance of obstructionist tactics. When incorporating the requirements of amended Rule 34, a response to document demands should include three sections: (1) identification of responsive documents, (2) objections and (3) an indication of how a search is limited in scope.

By way of example, a response to an overbroad demand could be structured as follows:

Following a reasonable search, Defendant has identified the following documents responsive to this request.... [identify documents, indicate Bates numbers, or refer to production media, etc.]

To the extent Plaintiff's request seeks additional materials, Defendant responds as follows:

This request is overbroad as it places no limitation on relevant time frame despite the subject matter of this litigation occurring from [indicate date range]. Defendant has therefore limited its search to materials from [indicate date range]; and,

Materials pertaining to [indicate the reason why the referenced materials are not relevant] are not relevant to any party's claim or defense. [An objection in the product liability context might state "materials pertaining to product lines other than the product line at issue in this litigation are not relevant to any party's claim or defense."] Defendant has therefore limited its search based upon previously disclosed / agreed upon search terms, document custodians and data locations and/or in accordance with the Discovery Order / Agreement entered on _____________. See Appendix ___.

This request is not proportional to the needs of the case considering (1) the marginal importance of the materials to the claims and defenses in this litigation and (2) the substantial cost to identify additional responsive materials balanced against the amount in controversy. Defendant has therefore limited its search based upon previously disclosed / agreed upon search terms, document custodians and data locations and/or in accordance with the Discovery Order / Agreement entered on _____________. See Appendix ___.

Upon request by Plaintiff, Defendant is willing to meet and confer regarding its response to this document demand.

Regarding the above objection as to proportionality, this format can be used for any of the proportionality considerations in Rule 26(b)(1), as amended on December 1, 2015. However, it may be necessary to provide additional detail to explain the asserted lack of importance of materials or to support an objection based on cost to comply versus amount in controversy. (When possible, of course, the preferred approach is to cooperate with plaintiff and reach an agreement in advance to avoid a discovery dispute.) Counsel should also remember to indicate, perhaps within a preliminary statement, when documents are being withheld pursuant to the attorney-client privilege or work product doctrine. The objections otherwise follow the requirements of amended Rule 34; they are specific by articulating a basis for limiting the search while indicating whether responsive materials are being withheld on the basis of the objection in a manner approved within the Committee Notes.

Specifying Time for Production

In addition to requiring that objections be stated with specificity, Rule 34(b)(2)(B) mandates that "the production must ... be completed no later than the time for inspection specified in the request or another reasonable time specified in the response."

A defendant might specify a time for production as follows:

Defendant anticipates that it will begin producing materials responsive to this request, as limited by the asserted objections, within [indicate number of days] following entry of an ESI protocol. Defendant intends to complete its production, including any subsequent rolling productions, within [indicate number of days] following entry of an ESI protocol. Defendant will amend this response or otherwise place all parties on notice should additional time be required to complete the production.

Upon request by Plaintiff, Defendant is willing to meet and confer regarding its response to this document demand.

Determining what constitutes a "reasonable time" for purposes of Rule 34(b)(2)(B) will hinge primarily on the volume and complexity of ESI that must be searched and reviewed by a defendant. In many situations, commencing production within 30 days following entry of an ESI protocol and completing a final rolling production within 120 days could be deemed reasonable.

Final Thoughts

Best practices for responding to document demands under amended Rule 34 will emerge in the coming months. Although the framework set forth above has not been fully tested, it presents a reasonable approach that meets the requirements of Rules 34(b)(2)(B) and (C) while remaining consistent with the critical concepts of cooperation and proportionality in discovery. As always, we are interested in hearing the thoughts and comments of our readers on this subject.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions