Judge Peck has issued a second wake-up call type of opinion in Fischer v. Forrest, _ F. Supp. 3rd _, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). Judge Peck’s first wake-up call in 2009 had to do with the basics of keyword search – William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009), which is still one of my favorite all time e-discovery opinions. His second wake-up call has to do with the basics of Rule 34, specifically subsections (b)(2)(B) and (b)(2)(C):
It is time, once again, to issue a discovery wake-up call to the Bar in this District:1/ the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:
* State grounds for objections with specificity;
* An objection must state whether any responsive materials are being withheld on the basis of that objection; and
* Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.
Most lawyers who have not changed their “form file” violate one or more (and often all three) of these changes.
Judge Peck is right about that. But there are so many technical rules that lawyers do not exactly follow. Nothing new here. Boring. Right? Wrong. Why. Because Judge Peck has added teeth to his observation.
It is well known that most lawyers will continue to use their old forms unless they are pried out of their dying hands. Mere changes in the rules and resulting technical violations are not about to interfere with the basic lethargy inherent in legal practice. The law changes so slowly, even big money saving improvements like predictive coding are met with mere lip service praise followed by general neglect (hey, it requires learning and change).
So how to get lawyers attention? Judge Peck knows a way, it involves threats. Here is his conclusion in Fischer.
The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now
15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files. From 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).
Yes. Judge Peck used the “w” word that lawyers all fear – WAIVER. And waiver of all objections no less. Lawyers love their objections and do not want anyone taking them away from them. They may even follow the rules to protect them. At least, that is Judge Peck’s thinking.
What does that rule say that so many are thoughtlessly violating. What has made dear Judge Peck so hot under the collar? You can read his opinion to get the answer, and I strongly recommend that you do, but here are the two subsections of Rule 34(b)(2) that no one seems to be following. You might want to read them through carefully a few times.
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
(2) Responses and Objections.
(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.
(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.
As to what that means you have no higher authority than the official Comments of the Rules Committee itself, which Judge Peck also quotes in full and adds some underlines for emphasis:
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection. An objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such an objection, the statement of what has been withheld can properly identify as matters “withheld” anything beyond the scope of the search specified in the objection.
Rule 34(b)(2)(B) is further amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. The response to the request must state that copies will be produced. The production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production.
Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.”
2015 Adv. Comm. Notes to Rule 34 (emphasis added by Judge Peck).
Going back to Judge Peck’s analysis of the objections made in Fischer v. Forrest:
Let us count the ways defendants have violated the Rules:
First, incorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).
Second, General Objection I objected on the basis of non-relevance to the “subject matter of this litigation.” (See page 3 above.) The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material “relevant to any party’s claim or defense . . . .” Discovery about “subject matter” no longer is permitted. General Objection I also objects that the discovery is not “likely to lead to the discovery of relevant, admissible evidence.” The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon. See In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (Campbell, D.J.) (“The 2015 amendments thus eliminated the ‘reasonably calculated’ phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts [and lawyers] continue to use the phrase. Old habits die hard. . . . The test going forward is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.”‘).
Third, the responses to requests 1-2 stating that the requests are “overly broad and unduly burdensome” is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections. See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (Grimm, M.J.) (“[B]oilierplate objections that a request for discovery is ‘over[broad] and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence,’ persist despite a litany of decisions from courts, including this one, that such objections are improper unless based on particularized facts.” (record cite omitted)).
Finally, the responses do not indicate when documents and ESI that defendants are producing will be produced.
Attorneys everywhere, not just in Judge Peck’s Court in New York, would be well advised to follow his wake-up call. Other courts around the country have already begun to follow in his footsteps. District Court Judge Mark Bennett has bench-slapped all counsel in Liguria Foods, Inc. v. Griffith Laboratories, Inc., 2017 BL 78800, N.D. Iowa, No. C 14-3041, 3/13/17), and, like Judge Peck, Iowa D.C. Judge Bennett warned all attorneys of future sanctions. Opinion found at Google Scholar at: https://scholar.google.com/scholar_case?case=13539597862614970677&hl=en&as_sdt=40006
The quick take-aways from the lengthy Liguria Foods opinion are:
- “Obstructionist discovery responses” in civil cases are a “menacing scourge” that must be met in the future with “substantial sanctions.”
- Attorneys are addicted to “repetitive discovery objections” that are “devoid of individualized factual analysis.”
- “Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the ‘boilerplate’ discovery culture and do our part to solve this cultural discovery ‘boilerplate’ plague.”
- Only by “imposing increasingly severe sanctions” will judges begin to change the culture of discovery abuse.
- Instead of sanctions, the court accepted the “sincere representations” from the lead attorneys that they will be “ambassadors for changing the ‘boilerplate’ discovery objection culture” in both of their law firms.
- “NO MORE WARNINGS. IN THE FUTURE, USING ‘BOILERPLATE’ OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS,” the court said in ALL CAPS as the closing sentence.
This opinion is full of colorful language, not only about bad forms, but also over-contentious litigation. Judges everywhere are tired of the form objections most attorneys still use, especially if they don’t conform to new rules (or any rules). You should consider becoming the ambassador for changing the ‘boilerplate’ discovery objection culture in your firm.
Judge Bennett’s analysis points to many form objections, including Interrogatory objections, not just those saying “overbroad” that were discussed by Judge Peck under Rule 34 in Fischer. Here are a few general boilerplate objections that he points, which all look familiar to me:
- Objection “to the extent they seek to impose obligations on it beyond those imposed by the Federal Rules of Civil Procedure or any other applicable rules or laws.”
- Objection “to the extent they call for documents protected by the attorney-client privilege, the work product rule, or any other applicable privilege.”
- Objection “to the extent they request the production of documents that are not relevant, are not reasonably calculated to lead to the discovery of admissible evidence or are not within their possession, custody and control.”
- Objection “overbroad, unduly burdensome”
- Objection “insofar as they seek information that is confidential or proprietary.”
- “subject to [and without waiving] its general and specific objections”
- Objection “”as the term(s) [X and Y] are not defined.”
Here are a few quotes to give you the flavor of how many judges feel about form objections:
This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.
Indeed, obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them. As I remarked at an earlier hearing in this matter, “So what is it going to take to get . . . law firms to change and practice according to the rules and the cases interpreting the rules? What’s it going to take?”
On January 27, 2017, I entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing. In the Order To Show Cause, I directed that every attorney for the parties who signed a response to interrogatories or a response to a request for documents in this case, with the exception of local counsel, appear and show cause, at a hearing previously scheduled for March 7, 2017, why he should not be sanctioned for discovery abuses.
Judge Bennett held a long evidentiary hearing before issuing this Order where he questioned many attorneys for both sides under oath. (Amazing, huh?) This lead to the following comments in the Opinion:
As to the question of why counsel for both sides had resorted to “boilerplate” objections, counsel admitted that it had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses. Indeed, one of the attorneys indicated that some clients—although not the clients in this case—expect such responses to be made on their behalf. I believe that one of the attorneys hit the nail squarely on the head when he asserted that such responses arise, at least in part, out of “lawyer paranoia” not to waive inadvertently any objections that might protect the parties they represent. Even so, counsel for both parties admitted that they now understood that such “boilerplate” objections do not, in fact, preserve any objections. Counsel also agreed that part of the problem was a fear of “unilateral disarmament.” This is where neither party’s attorneys wanted to eschew the standard, but impermissible, “boilerplate” practices that they had all come to use because they knew that the other side would engage in “boilerplate” objections. Thus, many lawyers have become fearful to comply with federal discovery rules because their experience teaches them that the other side would abuse the rules. Complying with the discovery rules might place them at a competitive disadvantage.
Heed these calls and be your law firm’s ambassador for changing the ‘boilerplate’ discovery objection culture. Stop lawyers from making form objections, especially general objections, or risk the wrath of your local judge. Or, to put it another way, using other quaint boilerplate: Please Be Governed Accordingly.