An End to the Kitchen Sink Approach to Discovery Objections

After constant complaints from litigants and lawyers on the length, breadth, and costs of discovery, there seems to be a real effort afoot to solve all three of these problems. The upcoming amendments to the Federal Rules of Civil Procedure, which go into effect on December 1, 2015, aim to decrease what have become the most expensive and time-consuming aspects of litigation.

One of the many ways that the amendments will do this is by expressly adopting what many courts have already done–barring the use of generalized boilerplate objections in responding to document requests. The use of such objections often results in a meaningless first round (or several rounds) of discovery before anything productive is actually accomplished. As amended, the Rules aim to preclude the use of these types of objections, resulting in faster progress in discovery and with a little less costly back-and-forth.

As amended, Rule 34 should eliminate the all too common practice of dumping kitchen sink objections into the initial written responses to document requests. For example, under the current Rules, it is not unusual for an attorney to list every conceivable objection to a set of document requests in an introduction, “incorporate by reference” those objections into each specific response, and then repeat the more applicable (though still generalized and boilerplate) objections in the specific responses. The attorney then concludes each response with an entirely unhelpful statement along the lines of, “any non-objectionable, non-privileged documents responsive to this request will be produced at a mutually agreed upon date and time.”

The practice does several things, none of them good. First, it wastes printer ink and paper. Second, it leaves opposing counsel with no understanding of whether the initial request was actually objectionable to the responding party, and, if so, why it was objectionable. Third, the opponent cannot discern whether any documents were actually withheld based on any of the myriad of objections. Fourth, and perhaps most important, it allows counsel to ignore the requests until the last minute and then to throw together a response that borders on the useless. In summary, this approach results in delay and confusion—the opposite of what the discovery process is supposed to achieve.

In an effort to curtail such tactics, the new Rule 34 expressly requires counsel to state with specificity the grounds for objecting to a request. In addition, an objection must state “whether any responsive materials are being withheld on the basis of that objection.” Under the new Rules, it is likely that courts will treat generalized objections as waived.

Also, the new Rule 34 should speed up the production of documents itself a good bit. Instead of relying on the vague “mutually agreed upon date and time” language in written responses, a party will have to specify a defined time by which documents will be produced, and “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.” Thus, the days of an attorney serving a written response and waiting months to produce any actual documents are, hopefully, over.

While it is unclear how these amendments will ultimately impact the initial phases of the discovery process, counsel who continue to “over object” or who do not specify whether documents are being withheld due to an objection risk incurring the wrath of judges nationwide. Attorneys who are used to a sloth-like pace of production will no longer have that luxury. Rather, from the moment discovery requests are received, counsel will need to focus on the request, discuss with their client what requests are really objectionable, why they are objectionable, determine what documents will be withheld under a (specific) objection, and get the rest ready to produce promptly. In other words, counsel will need to engage in prompt, meaningful discovery.