Magistrate Judge Andrew Peck is one of the leading judges on ediscovery and a longtime Sherlock Holmes fan. Judge Peck’s opinion in the trademark and copyright case Fischer v. Forrest is a study in scarlet for those who make boilerplate discovery objections. (Fischer v. Forrest (S.D.N.Y. Feb. 28, 2017) 2017 U.S.Dist.LEXIS 28102)
Federal Rule of Civil Procedure Rule 34(b)(2)(B)-(C) was supposed to be the Reichenbach Falls to boilerplate discovery objections. Attorneys for years would make objections to a discovery request, highlight the objection, then copy and paste the same objection to every remaining discovery request. The 2015 Amendments to the Federal Rules of Civil Procedure were intended to solve this final problem of nonsensical objections that do not define scope or answer if all responsive data has been produced. However, like Sherlock Holmes’ villain James Moriarty, judges are still hounded by boilerplate objections.
Judge Peck has a “new wake up call” for attorneys in Fischer. As Judge Peck noted, “Despite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses. This case is the latest.” (See Fischer, supra, at *5.)
There Is Nothing Like First-Hand Evidence
Judge Peck summarized the application of Rule 34(b)(2)(B)-(C) and Advisory Committee Notes for litigators as follows:
State grounds for objections with specificity;
An objection must state whether any responsive materials are being withheld on the basis of that objection; and
Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.
(See Fischer, supra, at *2.)
The “not-so-new” Rule 34(b)(2)(B)-(C) specifically states the following:
(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.
I Never Guess. It Is a Shocking Habit—Destructive to the Logical Faculty.
The Defendants made seventeen “general objections” in their discovery response that were incorporated into each discovery response. The first “general objection” stated, “Defendant objects to the requests to the extent that they call for the disclosure of information that is not relevant to the subject matter of this litigation, nor likely to lead to the discovery of relevant, admissible evidence.”
There are big problems with boilerplate general objections. First, general objections violate Rule 34(b)(2)(B)’s specificity requirement. Second, the standard for relevancy is limited to discovery “relevant to any party’s claim or defense; discovery over “subject matter” is no longer allowed.
The Court cited two discovery responses that contained the same first two sentences as examples of boilerplate objections:
Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Plaintiff’s possession.
In true Holmesian style, Judge Peck hammered the objection that the requests were “overly broad and unduly burdensome” was “meaningless boilerplate.” The objections told the Court nothing on why the request was burdensome or how it was overly broad. Moreover, the responses did not state when responsive ESI would be produced.
Boilerplate objections leave requesting parties, and judges, guessing whether there is responsive ESI, what needs to be done to produce the data as it is ordinarily maintained, and amount of responsive ESI. The “not-so-new” Rules have eliminated leaving the other side guessing the answers to those questions.
Nothing Clears Up a Case So Much as Stating it to Another Person
Many attorneys acted in denial of the 2006 Amendments to the Federal Rules of Civil Procedure for years. Judge Peck recognized attorneys were again ignoring the plain language of the 2015 Amendments. Judge Peck ended the Fischer opinion with a call to action to follow the Federal Rules of Civil Procedure or risk waiving objections:
The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files. 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).
Stating objections with specificity should be built into a party’s document review workflow. The first step is to identify the privileges in a case. These can run the gambit from attorney-client communications to trade secrets to spousal communications. The second step is to create issue codes for the privileges.
Attorneys reviewing discovery should identify privileged ESI with the relevant issue codes in the case. A short note explaining the privilege is also a best practice, so a privilege log will comply with the Federal or state Rules of Civil Procedure.
A privilege log can be exported as a CSV. The information in this file can be modified to be a privilege log that identifies ESI being withheld or incorporated into discovery responses that comply with Rule 34.
A Producing Party can specifically identify the number of files being produced by leveraging coding options. For example, issue codes can be created for each request for production. Attorneys conducting quality assurance testing can pull up all prospective responses to each individual request and add as an additional search add privileges to determine the number of files withheld for each request for production.
The need to provide dates in a rolling production can be met by leveraging Assignments in responding to discovery requests. A search can be created for each discovery request. For example, search terms could include a date range, email sent between specific individuals, and keywords from the discovery request. This search is then added to an Assignment to be divided among the review attorneys. Attorneys can increase their speed in reviewing discovery by using Presets to expedite issue coding. Preset 1 could be “Hot” and “Relevant” and Preset 2 “Cold” and “Irrelevant.” This simultaneously trains the Prediction Engine, so the predictive coding is learning from attorney review what is relevant and irrelevant. Other Presets can be created based on feedback from the reviewers on coding patterns they are seeing.
The project manager can gauge the speed of review using Case Analytics to provide estimates on when productions can be made for discovery responsive to different requests for production.
The Prediction Engine can identify other data to review, based upon what the system “learns” from the review teams. The project manager can then assign reviewing attorneys data from the “prediction model” to review for responsiveness.
Elementary, My Dear Watson
Courts do not want vague boilerplate objections in violation to the Federal Rules of Civil Procedure. Judges want specifics, such as how much data needs to be reviewed, how much is responsive, what is being withheld, and when it will be produced. Answers to these questions can be provided from effective workflows that leverage issue coding, searches, and smart review.