Learn Rule 34 Updates or Face Consequences, Judge Peck Says

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By Tera Brostoff

It’s time to toss out those “form” files or risk catastrophe during discovery.

Parties using general objections in discovery responses must revise their responses to comply with the now 15- month-old amendments to the Federal Rules of Civil Procedure, the U.S. District Court for the Southern District of New York held Feb. 28 ( Fischer v. Forrest , 2017 BL 61463, S.D.N.Y., No. 14 Civ. 1307 (PAE) (AJP), 2/28/17 ).

Magistrate Judge Andrew J. Peck, who is known for his eDiscovery expertise and championship of technology-assisted review and the amendments to the FRCP, concluded a recent opinion with a serious wake-up call for the bar. His comments reflect the frustration that many courts feel about the bar’s slow adoption of the new rules.

“It is time for all counsel to learn the now-current Rules and update their “form” files,” the court said. “From now on in cases before this Court, any discovery response that does not comply with Rule 34‘s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).”

The amendments to Rule 34 require that discovery request responses must state grounds for objections with specificity and must specify the time for production.

Judge Peck lamented that most lawyers haven’t changed their “form file” and continue to violate the changes.

In the case at issue, the defendants responded to requests for production of documents by stating that the request was “overly broad and unduly burdensome.”

Judge Peck said that language was “meaningless boilerplate,” and the responses didn’t say when documents and electronically-stored information would be produced.

Cuomo LLC represented Fischer.

Clements Bernard PLLC represented Forrest.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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