Some Pitfalls of the Newly Amended Federal Rules of Civil Procedure

The upcoming amendments to the Federal Rules of Civil Procedure contain a number of pitfalls for the unwary federal court practitioner. Just about the biggest mistake a practitioner could make in 2016 would be to use his or her tried and true discovery response template under the new regime.

For starters, it will now be a bad idea to respond to a Rule 34 document request by stating:

“Without waiver of or prejudice to these objections, Defendant produces the documents attached to this response.”

The recitation of this discovery mantra has maddened litigators and trial judges alike for years. The problem with this objection is that it does not communicate whether, having recited a litany of objections, the objector is producing all of its responsive documents or withholding documents pursuant to the objection. The amended rule seeks to address this uncertainty.

Under the amended rule, the use of broad boilerplate objections that do not state whether responsive documents are being withheld subject to an objection is now prohibited. The amendment to Rule 34 now provides that objections have to be stated “with specificity.” Therefore, it is not enough to merely state that a request is overly broad or vague and ambiguous. It is now the obligation of the responding party to state, for example, that it will limit the search for documents or ESI within a given stated time period. Playing coy with the adversary by not communicating the scope of the production should no longer be acceptable.

Another new Rule 34 wrinkle is that a litigant may now serve a Rule 34 request in advance of the Rule 26(f) conference. Although the adversary’s time to respond to the Rule 34 request will not start to run until 30 days after the conference, the early service of a document requests provides the parties the opportunity to discuss document production issues prior to the Rule 26(f) conference, if possible, but certainly before the Rule 16 conference. Being able to discuss document production issues at an early stage in the litigation can avoid discovery disputes later on, particularly if the court weighs in on some of the issues under discussion at the Rule 16 hearing.

Litigation Tip. From a defense perspective, keep in mind that plaintiffs will be on the lookout for defendants’ responses that do not contain the requisite specificity. The flip side is that if defense counsel specifies the basis for an objection and makes a limited production, the plaintiff runs the risk of waiving his objection to the limited scope of the production if he fails to act with alacrity.

The 2015 amendments to the Federal Rules of Civil Procedure amend Rules 1, 4, 16, 30, 31, 33, 34, 37 and 55. Rather than tackle all of the amended rules in a single article, this will be a continuing series of articles about the new regime and how practitioners can avoid compliance pitfalls.