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A Year In Amended Rule 34

It has been over a year since the 2015 amendment to the Federal Rules of Civil Procedure went into effect. Among the changes were Rules 34(b)(2)(B) and (C), which require:

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.

The amended Rules make clear that boilerplate and general objections are not appropriate. Each objection to a request must be stated with specificity. The level of specificity that is required is still evolving; however, the Rules unequivocally mandate that if a party objects to a document request, it must state whether any responsive materials are being withheld. Note, however, that a party need not use the phrase “it is withholding documents,” because (according to the Committee notes on the 2015 Rule amendments) “[a]n 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.’”

Prior to the 2015 amendment, practitioners answering a document request would often offer a response that looked like:

Defendant objects to this demand on the grounds that it is overbroad, unclear, vague and ambiguous, unduly burdensome and oppressive, not reasonably calculated to lead to the discovery of admissible evidence, requests information outside the defendant’s knowledge and control, and seeks information that is already in the custody and control of the plaintiff or is accessible to the plaintiff.

Subject to and without waiving the foregoing objections, defendant will produce the following documents . . . .

The foregoing response would not tell the party propounding the document request the bases for these objections nor whether the responding party was limiting its production based on its objections. Amended Rule 34(b)(2)(C) was meant to cure this confusing, or even misleading, method of responding.

Presumably, most attorneys have endeavored to strictly comply with Rule 34(b)(2)(B) and (C). Nevertheless, courts have routinely had to remind attorneys and their clients of their obligations under the amendment. For example, in KeyCorp v. Holland, No. 3:16-cv-1948-D, 2016 U.S. Dist. LEXIS 147926 (N.D. Tex. Oct. 26, 2016), the defendant repeatedly objected to requests for production as “vague, ambiguous, overbroad, misleading, inaccurate, based upon facts not in evidence, based upon incorrect assumption, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.” The court found not only that these “boilerplate objections” violated the 2015 amendment, but went further to hold that the defendant’s unsupported objections resulted in waiver of the objections.

Similarly, in Williams v. Gyrus ACMI, LP, No. 5:14-cv-00805 BLF (HRL), 2016 U.S. Dist. LEXIS 166124 (N.D. Cal. Dec. 1, 2016), the court found that while the defendant could not be compelled “to produce what does not exist,” the defendant’s response ran afoul of the 2015 amendment because it did not specifically state whether certain documents were being withheld. Accordingly, the court ordered the defendant to submit supplemental responses.

Further, in Asphalt Paving Sys. v. Gen. Combustion Corp., No. 6:15-cv-49-Orl-41TBS, 2016 U.S. Dist. LEXIS 74014, at *5 (M.D. Fla. June 7, 2016), the court overruled a defendant’s objections because the defendant had failed to explain specifically how the discovery requests were “irrelevant, overbroad, vague, unduly burdensome, or otherwise objectionable.” The court also found that the defendant had not stated whether it was withholding documents on the basis of its objections in violation of Rule 34(b)(2)(C). Pursuant to Rule 37(a)(5)(A) and (d)(3), the court awarded the plaintiff reasonable legal expenses, including attorneys’ fees, to prosecute the motion to compel.

One example of how attorneys may respond with Rules 34(b)(2)(B) and (C) in mind is set forth below:

Response: Plaintiff will produce the call details of her cellular phone number for the time period of year preceding the call she received from Defendant on April 1, 2016 up to and including the present.

To the extent Defendant seeks additional documents, Plaintiff objects to this request on the basis that the request seeks discovery exceeding the scope of Rule 26(b)(1) because: (a) the definition of “you” is overbroad in that it includes Plaintiff’s attorneys and, thereby, seeks documents which are protecting by attorney-client privilege; (b) calls details of Plaintiff’s landline are not relevant to whether Defendant made calls to her cellular telephone in violation of 47 U.S.C. § 227(b)(1)(A)(iii); and (c) obtaining call records for each phone number, including non-cellular numbers, for the past 10 years is not proportional to the needs of the case based the issues at stake in this litigation, Plaintiff’s resources, the importance of the non-cellular records for the past 10 years, unlikely benefit of the documents when measured against the burden to Plaintiff to produce them.

Plaintiff has therefore limited its production to the above-stated documents.

Practitioners should heed the clear mandate of the 2015 amended Rules and be aware of the possibility for paying the propounding party’s attorneys’ fees on a motion to compel if they fail to meet their obligations.