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Wakeup Call to the Bar -- FRCP Rule 34 Changes Will be Enforced (SDNY)


March 8, 2017 at 4:06:06 AM

Last week the Southern District added some "teeth" to the newly updated Federal Rule of Civil Procedure 34, which pertains to pretrial discovery.  In <em><a href="">Fischer v. Forrest</a></em>, 14 Civ. 1304 (S.D.N.Y. 2017) the Southern District heard a claim for copyright and trademark violations. During the course of discovery, defendant responded to plaintiff’s discovery demands with 17 “general objections” stating:
“Defendant objects to the requests to the extent that 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.  Subject to and without waiver of the foregoing general objections which are hereby incorporated by reference into each response, Defendant’s responses to plaintiff’s request for production of documents are as follows…” <em>Id</em>.   These "general objections" are often employed by attorneys seeking to avoid unnecessary evidentiary disclosures during the discovery process.  The result -- stagnant discovery -- is exactly what the amended FRCP 34 is designed to avoid.
The Court found defendant’s objections failed to comply with Rule 34, which had purposely been amended in 2015 to prompt more specificity to now require the responding party to state grounds for objections with <em>specificity</em>, indicate whether any responsive materials are being withheld on the basis of that objection, and provided a new relevance standard for discovery.
The Court found that defendant’s use of general objections violated the specificity requirements of Rule 34, and indicated that general objections should rarely be used unless such objection applies to each and every specific document requested.  Similarly, defendant’s objection that plaintiff’s demand is “overly broad and unduly burdensome,” without further explanation, is meaningless boilerplate and an improper objection.
Furthermore, the defendant failed to state the correct standard of relevance in their objection.  The Court noted, the amended standard for discovery is “material relevant to any party’s claim or defense.” Not, as defendant stated, “relevant to the subject matter of this litigation reasonably calculated to lead to admissible evidence.”
Judge, Andrew Peck not only required defendants to revise their responses to comply with the FRE but held that any discovery responses before his part that do not comply with Rule 34’s requirement to state objections with specificity and indicate whether responsive material is being withheld on the basis of objection will be deemed a waiver of <em>all objections </em>(except as to privilege).
This court’s ruling demonstrates the importance of staying current with procedural laws and providing responsive, specific objections, lest you inadvertently waive all objections.  Moreover, we should strive to hold our adversaries to the same standard.  Thanks to Patrick Burns for his contribution to this article.  Please email <a href="">Brian Gibbons</a> with any questions.

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