Monday, March 06, 2017

Compliance with Rule 34 is Not Optional

By Steve Stapleton

For those of you who practice in federal court, you might want to read the opinion and order on Rule 34 *1  from Magistrate Judge Peck out of New York's Southern District.  In Fischer v. Forrest, 14-cv-1307 (S.D.N.Y., February 28, 2017) Judge Peck wrote, “It is time, once again, to issue a discovery wake-up call to the bar in this district.”

For at least the second time,*2  Peck held that Rule 34 requires a litigator to state the grounds for discovery objections with specificity; state whether any responsive materials are being withheld on the basis of that objection; and specify the time for production — and, if it’s a rolling production, state when production will begin and end.  "Most lawyers who have not changed their "form file" violate one or more (and often all three) of these changes."

The court noted that the defendants in Fisher filed their seventeen General Objections (the first of which reads, "Defendant [sic] objects to the requests to the extent they call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence") and then incorporated the General Objections into each subsequent response -- all of which Peck found to be in violation of the now 15 month-old revised rule.

“Incorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirements….”  And the Court went further:  Objections “on the basis of non-relevance to the subject matter of this litigation” … are “no longer permitted.”  Objections that state the requested discovery is not “likely to lead to the discovery of relevant, admissible evidence” is the wrong standard.  The test under the revised rule “is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.’”

Similarly, boilerplate objections stating that the requests are “overly broad and unduly burdensome” are “meaningless.”  “Why is it burdensome?  How is it overly broad?  This language tells the court nothing.”

Although Peck ordered the Defendants in Fisher to “revise their Responses to comply with the Rules,” going forward Peck issued a warning to all litigants with cases before his Court, copying the presiding judge, Paul Engelmayer. Although the Court did not highlight the warning, this author thinks the warning is important enough to be highlighted.  It reads in full below:

[A]ny 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 [the] objection) will be deemed a waiver of all objections (except as to privilege).

You’ve been warned.


1.  See Federal Rule of Civil Procedure 34 (revised, eff. December 1, 2015).

2.  See William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y.)(“This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).”).

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