Five years ago, the Federal Rules of Civil Procedure underwent its most significant overhaul in decades. This revamp included amendments to Rule 34, which governs production of documents in litigation. Effective Dec. 1, 2015, Rule 34(b)(2)(B) requires litigants to "state with specificity the grounds for objecting to the [document] request, including the reasons" and Rule 34(b)(2)C) mandates that "[a]n objection must state whether any responsive materials are being withheld on the basis of that objection."

Further, litigants must specify the timing of production. Per the Advisory Committees' note, these changes were intended to "reduc[e] the potential to impose unreasonable burdens by objections to requests to produce" as well as "end the confusion that frequently arises when a producing party states several objections and still produces information."

This article will briefly survey notable cases finding Rule 34 violations, examine various remedies courts have implemented, and offer practice pointers to ensure compliance. Rule 33, which governs interrogatories, underwent similar revisions and though this article does not chronicle the judicial response to those changes, certain best practices identified herein are also applicable in that context.

In broad stroke, the Rule 34 amendments aim to proscribe "boilerplate objections." Such an objection "merely states the legal grounds for the objection without (1) specifying how the discovery request is deficient and (2) specifying how the objecting party would be harmed if it were forced to respond to the request." Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 170 n.1 (N.D. Iowa 2017) quoting Matthew L. Jarvey, Boilerplate Discovery Objections: How They are Used, Why They are Wrong, and What We Can Do About Them, 61 Drake L. Rev. 913, 914 (2013). As examples, courts have labeled objections stating simply that a request is "overly broad and unduly burdensome" or seeks irrelevant documents as boilerplate.

Overview of Noteworthy Decisions

One of the first cases giving teeth to amended Rule 34 was Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694, (S.D.N.Y. Feb. 28, 2017). The opinion begins by "issu[ing] a discovery wake-up call" as "despite the clarity of the no-longer-new 2015 Amendments, the court still sees too many non-compliant Rule 34 responses." Id. at *1-2. The court held that defendants violated Rule 34 by: i) incorporating general objections into each response, ii) objecting to specific requests as "overly broad and unduly burdensome," and iii) failing to indicate a production timeline. Id. at *3.

Defendants' objections failed because they did not provide enough information as to their basis, in other words, "Why is it burdensome? How is it overly broad?" The court ordered that defendants revise their responses and warned future litigants that "[f]rom now on in cases before this Court, any discovery response that does not comply with Rule 34's requirement…will be deemed a waiver of all objections (except as to privilege)." Id.

Though Fisher portended a sea change for future litigants, its reverberations have varied in severity and kind. In Liguria Foods, the court railed against lawyers' "addict[ion] to 'boilerplate' discovery objections" despite being "unable to cite a single reported or non-reported judicial decision…that authorizes, condones, or approves of this practice." 320 F.R.D. at 170. As both parties failed to "show specifically how" the requests were "not relevant" or "overly broad, burdensome or oppressive," the court demanded briefing as to why it should not issue sanctions for discovery abuses. Id. at 180, 185.

While ultimately declining to sanction the parties because of their "cooperative and professional relationship," the court unveiled its new "Supplemental Trial Management Order" which required that objections be "specific and state an adequate individualized basis" and advised that "form or boilerplate objections shall not be used, and, if used, may subject the party and/or its counsel to sanctions." Id. at 191. A similar result occurred in In re Haynes, 577 B.R. 711, 725 (Bankr. E.D. Tenn. 2017), where the court declined to issue sanctions but noted "in the future, however, boilerplate objections will not be considered by this Court, which will follow the thorough approach to boilerplate objections set forth in Liguria." Litigants should therefore review their judge's individual rules for comparable warnings.

Other courts have followed Fischer's remedy of revision or granted motions to compel where a party's responses were insufficient. In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13CV2581PKCJLC, 2019 WL 3334503, at *11 (S.D.N.Y. July 25, 2019), though defendants asserted that their objections were generally applicable, the court "[did] not agree that each of the general objections applie[d] to each discovery request." The court ordered that defendants "withdraw their general objections and may not include general objections in their revised responses unless they truly apply to each request" and revise their responses to comply with Rule 34. Id.

Similarly, in Burrell v. Duhon, No. 518CV00141TBRLLK, 2019 WL 5260481, at *5 n.5 (W.D. Ky. Oct. 17, 2019), while defendants asserted that the requests were "vague, overbroad, unduly burdensome, and [] not proportional to the needs of the case" the court noted that "[n]o examples of the vagueness, overbreadth, undue burden, proportionality are specifically addressed" and therefore granted plaintiff's motion to compel. As these cases demonstrate, the failure to explain why the party was lodging objections doomed the response.

Courts have awarded attorney fees for particularly egregious Rule 34 violations. In Wesley Corp. v. Zoom T.V. Prod., LLC, No. 17-10021, 2018 WL 372700, at *3 (E.D. Mich. Jan. 11, 2018), defendants objected, without explanation, that nearly all of plaintiff's requests for production were "vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant." As the court detailed, "[w]hen objections lack specificity, they lack effect: an objection that does not explain its grounds (and the harm that would result from responding) is forfeited." Id at *4.

The court awarded attorney fees, in part to deter future use of boilerplate objections. Id. at *5. Likewise, in Connor Sport Court Int'l, LLC v. SportsCourt, Inc., No. 1:17-CV-00954-WKS, 2019 WL 5101942, at *2 (W.D.N.Y. Mar. 27, 2019), defendants "d[id] not provide any basis for the assertions that the requests are overly burdensome" and were ordered to revise their responses and pay attorney fees.

Finally, as an important warning, at least one court has waived certain objections, including privilege, because of boilerplate responses. In Mitchell v. Capital Records LLC, No. 3:15-CV-00174-JHM, 2018 WL 2011934, at *4 (W.D. Ky. Apr. 30, 2018) (overruled in part on other grounds), defendants objected to requests for production a combined 60 times on the basis of attorney-client privilege or work product doctrine and a combined 80 times on the basis of proportionality. However, defendants did not identify what, if any, documents they were withholding for privilege, nor did they explain how the requests were disproportionate. Id. at *6.

The court granted the motion to compel and request for attorney fees and concluded that, because of the frivolous nature of their objections, defendants waived their attorney-client privilege, work product doctrine, and proportionality objections for those requests. Id. at *7. While waiver of objections is a less-often used sanction, litigants should recognize that the risk exists.

Best Practices

These decisions provide a number of important takeaways. Objecting parties should strive to limit "general objections" to those applicable to all or most requests. Litigants should also indicate why they are making specific objections. For example, if objecting to a request as vague or undefined, the litigant should identify the specific phrase at issue and either request to meet and confer or state its own reasonable construction and respond accordingly. As another example, a litigant may object to a request as overbroad but propose a more narrow scope, such as a shorter time period. A response indicating that the party will only produce documents related to X dates or Y matter is sufficient to indicate that the party is withholding documents. If unable to identify a date certain for production, litigants should make a principled suggestion such as production will occur on a rolling basis beginning on Z date, or within a reasonable time.

Courts have not limited their sanctions to responding parties and therefore requesting parties should ensure that they issue narrowly tailored requests, lest they end up bearing the brunt of the court's ire. See, e.g., Michael Kors, L.L.C. v. Su Yan Ye, No. 1:18-CV-2684 (KHP), 2019 WL 1517552, at *3, *7 (S.D.N.Y. Apr. 8, 2019) (party ordered to revise requests for production that were "neither tailored to the needs of this case nor consistent with Rule 34" and "clearly overbroad and unreasonable"). Finally, parties should meet and confer regarding any discovery disputes pursuant to their good faith obligations under Rules 26(c)(1) and 37(a), as well as any relevant local rules, before seeking court intervention.

Conclusion

Judicial frustration with deficient discovery responses is not a new phenomenon, yet many litigants are still relying on boilerplate objections. However, courts are increasingly punishing non-compliant responses. As the above cases reflect, a little specificity can go a long way in preventing discovery sanctions.

Jessica L. Falk is a partner and Rachel Kaplowitz is an associate in the Complex Commercial Litigation practice group at Weil, Gotshal & Manges.