United States: Fischer v. Forrest: An SDNY Magistrate Judge Issues A Stern Warning To Litigants Who Ignore The Specificity Requirements Of Amended Rule 34

Last week, Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York issued a stern rebuke to counsel in Fischer v. Forrest for what he viewed as a failure to adhere to the specificity requirements of the December 2015 amendments to Federal Rule of Civil Procedure 34.1 Issuing a "discovery wake-up call" to attorneys practicing in the Southern District of New York, Magistrate Judge Peck emphasized that the 2015 revisions to Rule 34 prohibited the use of general boilerplate responses to discovery requests.2 While Magistrate Judge Peck permitted the defendants in Fischer v. Forrest to amend their responses and objections, he warned that going forward, litigants who submitted responses that failed to adhere to Rule 34's specificity requirements would be deemed to have waived all objections to the discovery requests, except for those objections based on privilege.3

December 2015 Revisions to Rule 34

Rule 34, a federal civil procedure rule governing discovery requests and responses, was amended in December 2015 to require parties objecting to discovery requests to do so with increased specificity. Prior to the December 2015 amendments, standard responses and objections to discovery requests included a set of broadly crafted and generic "general objections" which may or may not have applied to the enumerated requests received from the requesting party. The responses and objections would then list particular objections to each of the discovery requests, both incorporating the general objections and identifying particular issues with each request.

Under the revised Rule 34, however, litigants may no longer include a generic list of general objections in their responses, but must "state with specificity the grounds for objecting" to each document request and "whether any responsive materials are being withheld." The rule also requires that any production made in response to a document request must be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. As a further clarification, the 2015 FRCP Advisory Committee noted that "[w]hen it is necessary to make the production in stages the response should specify the beginning and end dates of the production."4

Fischer v. Forrest

In issuing his wake-up call, Magistrate Judge Peck lamented that most members of the SDNY bar had been too slow in conforming their practices to the requirements of amended Rule 34. In Fischer v. Forrest, two related cases asserting copyright and trademark violations on behalf of inventor James Fischer, Magistrate Judge Peck ordered the defendants to revise their discovery responses and objections, finding that the defendants' responses were little more than "meaningless boilerplate" which failed to advise the Court of the specific nature of the defendants' objections.5

By way of example, Magistrate Judge Peck discussed defendants' responses to Fischer's first two discovery requests, which had asked for (1) all communications between the defendants and the plaintiff and (2) all versions of the defendants' sales catalogs. Although the defendants agreed to produce certain documents in response to these requests, at the same time they also objected to the requests on the grounds that they were "broad and unduly burdensome," "not likely to lead to the discovery of relevant evidence," and sought information already in the plaintiff's possession. The defendants also asserted general objections which they incorporated into each of their specific responses to the plaintiff's requests.6

Holding that the defendants' objections violated Rule 34, Magistrate Judge Peck listed four ways in which the responses were inappropriate. First, Magistrate Judge Peck held that the defendants' decision to indiscriminately incorporate all of their general objections into each response was a clear violation of Rule 34's specificity requirement, as well as the Rule's requirement to state whether any responsive materials were being withheld on the basis of the objection. Magistrate Judge Peck further noted that general objections should "rarely be used" following the 2015 amendments unless such objections actually apply to each document request (for example, objecting to producing privileged material).7  

Second, Magistrate Judge Peck held that the defendants' objections to the plaintiff's requests on the grounds that they were "not likely to lead to the discovery of relevant evidence" or were irrelevant to the "subject matter" of the litigation had no place in a post-December 2015 world. As Magistrate Judge Peck noted, under Federal Rule of Civil Procedure 26, which was also amended in December 2015, parties are only entitled to request material relevant to the actual litigation at hand, not to the "subject matter" of the litigation. Furthermore, the 2015 amendments to Rule 26 removed any reference to whether a discovery request is reasonably calculated to lead to admissible evidence and instead, changed the standard to whether the discovery requested is relevant to "any party's claim or defense."8   

Third, Magistrate Judge Peck described the defendant's objections that the requests were "overly broad and unduly burdensome" as "meaningless boilerplate" as they failed to provide the Court with any specific detail establishing the basis for the objections. Fourth and finally, Magistrate Judge Peck chastised the defendants for failing to indicate in their responses when they intended to produce documents pursuant to the requests.9

In the end, Magistrate Judge Peck ordered the defendants in Fischer v. Forrest to revise their responses to comply with Rule 34, but he also issued a stern warning to the parties and to all future litigants before the Court: "[f]rom 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)."10

Conclusion

SDNY Magistrate Judge Peck's decision in Fischer v. Forrest strongly suggests that going forward judges will have little tolerance for broad and imprecise discovery objections that fail to adhere to the specificity requirements of amended Rule 34. To avoid the potentially weighty consequences of non-compliance, litigants responding to discovery requests should specify: the precise basis for any objection; whether any materials are being withheld pursuant to the objection; and the manner and timing of any agreed production.

Footnotes

Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 2017 WL 128705 (S.D.N.Y. Feb. 28, 2017).

Id. at *1.

Id. at *6.

4  2015 Adv. Comm. Notes to Rule 34.

5 Fischer v. Forrest at *5.

Id. at *4-*5.

7  Id.

Id.

Id.

10  Id. at *6.

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