The Lawletter Vol 42 No 3
Rule 34 of the Federal Rules of Civil Procedure permits a party to request the responding party, within the scope of Rule 26(b), to produce for inspection designated documents and electronically stored information. See Fed. R. Civ. P. 34(a)(1). The request for production must, among other things, "describe with reasonable particularity each item or category of items to be inspected." Id. R. 34(b)(1)(A).
The responding party generally must respond within 30 days after being served with the request for production. Id. R. 34(b)(2)(A). Effective December 1, 2015, Rule 34(b)(2)(B) was amended to require that for each item or category of items requested, "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." Id. R. 34(b)(2)(B) (emphasis added). The amendment to Rule 34(b)(2)(B) clarifies that general or boilerplate objections, such as that a request is harassing, are improper and result in a waiver of the unsupported objections. See, e.g., Leibovitz v. City of New York, No. 15-CV-546 (LGS) (HBP), 2017 WL 462515, at *2 (S.D.N.Y. Feb. 3, 2017) (collecting cases); see also Fed. R. Civ. P. 34 advisory comm. note to 2015 amend. ("This provision . . . eliminat[es] any doubt that less specific objections might be suitable under Rule 34.").
An objection may still state that a request is overbroad under Rule 34(b)(2)(B), as amended, but the responding party should, if possible, produce documents in response to any part of the objection that is not overbroad. See Fed. R. Civ. P. 34(b)(2)(C) ("An objection to part of a request must specify the part and permit inspection of the rest."). For example, the responding party may state that it "will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources." Id. R. 34 advisory comm. note to 2015 amend. If the responding party objects in such a manner, then it must also comply with Rule 34(b)(2)(C), which was amended at the same time as Rule 34(b)(2)(B) to direct that "an objection must state whether any responsive materials are being withheld on the basis of that objection." Id. R. 34(b)(2)(C). In our example, the responding party would "identify as matters ‘withheld' anything beyond the scope of the search specified in the objection." Id. R. 34 advisory comm. note to 2015 amend.; see also id. ("An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been 'withheld.'"). This amendment to Rule 34(b)(2)(C) was adopted to "end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections." Id. When indicating that items have been "withheld" based on the objection, the responding party "does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection." Id.
The practical impact of the amendments to Rule 34 is that courts have a much easier time dealing with discovery disputes over the production of documents. If a responding party objects to a request for production, then the court will be able to examine the specific reasons provided by the responding party for objecting to the request. See, e.g., Leibovitz, 2017 WL 462515, at *2-4 (going through the defendant's specific objections, after striking the party's general, boilerplate objections to each of the plaintiff's requests for production). That will greatly facilitate the court's decision as to whether the request falls within the permissible scope of discovery under Rule 26(b).