In a recent order, S.D.N.Y. Magistrate Judge Andrew J. Peck provided a simple yet blunt discovery reminder to all litigators: "the December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old, [and] [i]t is time for all counsel to learn the now-current Rules and update their 'form' files." Despite the clarity of the "no-longer-new" 2015 Amendments, Judge Peck noted that the Court still sees too many non-compliant Rule 34 responses.
In this decision, the Court discussed four examples of non-compliant discovery responses served by the defendants in Fischer v. Forrest, No. 1:14-cv-01307-PAE-AJP (S.D.N.Y. Feb. 28, 2017), a case asserting claims for, among other things, copyright and trademark violations. The Court highlighted Rule 34(b)(2)(B)'s specificity requirement, reminding litigators that general objections should rarely be used after December 1, 2015, unless each objection applies to each document request. The Court then noted that the December 1, 2015 amendment to Rule 26(b)(1) limiting discovery to material "relevant to any party's claim or defense" rendered objections on the basis of non-relevance to the "subject matter of the litigation" impermissible. The Court also noted that objecting to requests as "overly broad and unduly burdensome" is meaningless boilerplate language that "tells the Court nothing." Finally, the Court stated that the discovery responses did not comply with the rules because they did not indicate when documents and ESI that the defendants were agreeing to produce would actually be produced.
Here, the Court required the defendants to revise their responses to comply with the rules. Judge Peck warned that moving forward, any discovery response that does not comply with Rule 34's current requirement to state objections with specificity and to clearly indicate whether responsive material is being withheld, will be deemed a waiver of all objections, except as to privilege.
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