Judge Is Fed Up with Lazy Discovery Responses

    Mar 22, 2017

    Lawyers need to get up to speed on the 2015 rule changes to the Federal Rule of Civil Procedure (FRCP), according to a federal magistrate judge in Manhattan.

    Southern District Magistrate Andrew Peck said too many attorneys are not adhering to the 2015 revisions to Rule 34 of the FRCP, according to The revisions were designed to speed up responses to discovery requests, clear up objections to requests, and eliminate the confusion that can slow down production.

    “It is time, once again, to issue a discovery wake-up call to the bar in this district,” Peck wrote in Fischer v. Forrest, a Lanham Act trademark infringement case, in which he issued a report and recommendation on motions to dismiss in January.

    Peck said Rule 34 requires a litigator to state grounds for objections with specificity; state whether any responsive materials are being withheld on the basis of that objection; and specify the time for production—and, if it’s a rolling production, state when production will begin and end.

    “Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes,” he said.

    The 2015 Advisory Committee Notes on Rule 34(b)(2)(C) said requiring lawyers to state whether anything is being withheld based on a particular objection “should 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.”

    Peck is handling discovery in two related cases brought by James Fischer, inventor of “Fischer’s Bee-Quick,” which is designed to facilitate the harvesting of honey. Fischer sued the principals of Brushy Mountain Bee Farm Inc. and the company, an authorized dealer of Bee-Quick that was permitted to use Fischer’s copyrighted works on its sales website and catalog.

    But Fischer said the defendants began in 2011 to market “Natural Honey Harvester,” an unauthorized imitation of Bee-Quick.

    Peck said that “despite the clarity of the no-longer-new 2015 amendments, this court still sees too many non-compliant Rule 34 responses.”

    The defendants made 17 “general objections” in their latest Rule 34 response, prompting him to say, “Let us count the ways the defendants have violated the rules.”

    For instance, a response to two requests stated they were “overly broad and unduly burdensome”– phrases the judge called “meaningless boilerplate.”

    Peck said anyone who doesn’t comply with Rule 34′s requirements on specificity and clearly indicate whether material is being withheld based on the objection “will be deemed a waiver of all objections (except as to privilege).”

    © 2017, ARMA International