In 2015, the discovery rules contained in the Federal Rules of Civil Procedure received a massive overhaul. The intent was to place the burden on the parties to establish a more level playing field in discovery matters, and to encourage reasonableness, proportionality, and cooperation among the parties. Federal Rule of Civil Procedure 26(b)(1) was amended to give the parties new guidelines (with one notable omission) in engaging in discovery.
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
The notable omission? The requirement that a discovery request appear “reasonably calculated to lead to the discovery of admissible evidence,” as stated in the old FRCP 26(b)(1). Instead, there are now six factors for the parties to consider in discovery.
The Practical Effects of Objecting to Discovery Requests under FRCP 34
What I want to look at today is the practical effects of objections made to discovery under the amended Federal Rule of Civil Procedure 34, in light of the amendments to FRCP 26. FRCP 34(b)(2) saw the following changes (in bold):
(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(B) 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 with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. 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.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
Notably under the new FRCP 34(b)(2)(B), broad objections to discovery — “overly broad, unduly burdensome, not properly limited in time and scope, and not reasonably calculated to lead to the discovery of admissible evidence” — aren’t supposed to work any more. Kristen K. Orr of Stites & Harbison, PLLC, recently addressed the issue of handling objections to overly broad document production requests in her article, “Reconsidering Model Discovery Responses in Federal Action,” in DRI’s In-House Defense Quarterly. Rather than responding only with blanket objections that are no less specific than the requests themselves, the responding party should go a step farther and inform the requesting party how it will respond in a manner that is limited to relevant time periods or subject areas.
This isn’t to say objections are improper when subjected to a request for “any and all documents….” But rather, you should tailor your otherwise boilerplate objections to consider the proportionality analysis set forth in FRCP 26 and what documents are due to be produced. Orr provides an example of a suitable objection to a overly broad request for production under the new federal discovery rules.
“This discovery request is not proportional to the needs of the case considering that the burden and expense of the requested discovery outweighs its likely benefit, and, as such, the producing party has limited its search to [a specified time frame] as maintained by [the appropriate custodians or department].
The short of it is this, the federal courts don’t want to deal with your discovery disputes. So if you’re going to object to discovery requests under FRCP 34, you’d better offer solid reasons for doing so, while also producing the relevant, discoverable, or non-objectionable documents. Now, if you’re in state court, all bets are off – polish up those boilerplate objections and use them to your heart’s content.
For more reading on discovery objections: Objecting to Social Media Discovery, Beware of Bogus Requests for Admission, Refusals to Accept Discovery Served via Email, and A Party’s Duty to Supplement Discovery.
Photo by Shelah.