To address this frustration and streamline the discovery process, the Federal Rules of Civil Procedure were amended in 2015. While other rule amendments have garnered more attention (e.g., the scope of discovery under Rule 26), most litigators have failed to recognize that the newly amended Rule 34 essentially prohibits general objections.
This article seeks to address judges' increasing frustration in counsel not adopting the amended rules in their discovery practices. Based on the current trend of case law, lawyers who appear in federal court would be wise to familiarize themselves with the new rules and modify their forms accordingly.
2015 Amendment to Federal Rule of Civil Procedure 34
Effective Dec. 1, 2015, amended Rule 34 was "aimed at reducing the potential to impose unreasonable burdens by objections to requests to produce," Fed. R. Civ. P. 34 advisory committee's note.
Rule 34(b)(2) provides: 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 an objection with specificity the grounds for objecting to the request, including the reasons.
The deletion of two words—"an objection"—has sparked a judicial crackdown on litigants using general objections in responding to requests for production. In fact, the advisory committee's note in Rule 26 stated that the changes to the rules were not "intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional."
District Courts' Reactions to Amended Rule 34
Even before the 2015 amendments, many federal district judges had made fairly clear that they did not appreciate boilerplate discovery objections. However, since the 2015 amendments to the Federal Rules of Civil Procedure, some federal district court judges have renewed their focus on attorneys who continue to use the standard boilerplate general objections. Although there is not any case law on this issue from within the Pennsylvania district courts, the trend elsewhere counsels in favor of taking
the issue seriously.
In February 2017, a case from the Southern District of New York garnered national attention when Magistrate Judge Andrew Peck (already renowned in e-discovery circles) admonished those lawyers who continued to file form objections, 15 months after the new rules became effective in Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP),(S.D.N.Y. Feb. 28).
Peck stated: "It is time, once again, to issue a discovery wake-up call to the bar in this district. ... 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.
- 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.
The Dec. 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 will be deemed a waiver of all objections (except as to privilege).
Peck also rejected a discovery tactic used by most, if not all, litigators: incorporating your general objections into each of your specific objections. In response to this tactic, Peck stated "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 Dec. 1, 2015, unless each such objection applies to each document request (e.g., objecting to produce privileged material).
In Fischer, Peck allowed the party to amend its discovery requests, while other district judges have imposed orders producing more draconian results. See, e.g., Sagness v. Duplechin, No. 4:16CV3152, (D. Neb. Mar. 29) (striking all general objections from a party's discovery responses); Liguria Foods v. Griffith Labs, No. C 14–3041–MWB, (N.D. Iowa Mar. 13) ("It is clear to me that admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense."); In re Adkins Supply, No. 1:14–CV–095–C, (Bankr. N.D. Tex. July 26, 2016) (striking all of defendant's general objections made on the basis of work product and attorney-client privilege, relevance, and that the requests were unduly burdensome); Moser v. Holland, No. 2:14-cv-02188- KJM-AC, (E.D. Cal. Feb. 4, 2106) (commenting that defense counsel's use of boilerplate general objections violated Rules 33 and 34 and awarding plaintiff's costs in bringing a motion to compel).
Overall, it seems that this is the start of a trend—blanket objections will generally not suffice under the new rules. While Peck seemed to leave some room for the use of blanket objections (e.g., if the objection applies to each document request), this seems to be a risky gamble for attorneys to make.
Instead, the more prudent course is to forego the tried-and-true general objections and simply use specific objections.
Pennsylvania federal court litigators should not be overly concerned with this change for four reasons. First, general objections probably never provided as much of a safety net as attorneys thought. (See, e.g., Liguria Foods ("The idea that ... general or 'boilerplate' objections preserve any objections is an 'urban legend.'"); Gonzales v. Volkswagen Group of America, No. A–14–CV–574–LY–ML (W.D. Tex. Aug. 28, 2015), ("In particular, the practice of asserting a general objection to the extent it may apply to particular requests for discovery has been found ineffective to preserve the objection.")
Second, this change could cut down on discovery costs: "The problems with using boilerplate objections, however, run deeper than their form or phrasing. Their use obstructs the discovery process, violates numerous rules of civil procedure and ethics, and imposes costs on litigants that frustrate the timely and just resolution of cases."
Third, most of the typical general objections were and remain protected by other Federal Rules of Civil Procedure. For example, oftentimes the general objections will conclude with a general objection stating that the party will supplement its responses and the current responses are based on information currently known to the party. Yet this is not preserving a new right; in fact, under Rule 26(e), parties are already required to supplement their discovery responses as new information becomes known.
Finally, amended Rule 34 does not eliminate all future use of the commonly used general objections. Instead, Rule 34 requires that if an objection is made, it must be made specifically. For example, if you think a request is vague, you now must explain why it is vague. One district court instructed the parties to "explain its understanding of the allegedly vague and ambiguous terms or phrases and explicitly state that its answer is based on that understanding," as in Heller v. City of Dallas, 303 F.R.D. 466,
488 (N.D. Tex. 2014).
To avoid these negative consequences, litigants responding to requests for production must specify the precise basis for any objection, and list objections specifically rather than relying on general objections. Pennsylvania lawyers appearing in federal court should refresh their forms and ensure they are familiar with the 2015 amendment to Rule 34, before finding themselves on the opposite side of a motion to compel.