Prior to the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), it was common practice in e-discovery for responding parties to object to discovery requests as “overly broad and burdensome” without providing much in the way of support. The 2015 amendments intended, in some measure, to curb this practice, requiring attorneys to offer specific grounds justifying both their motions and objections.
An example of the need for this change was found in the case ruling in Robinson v. City of Arkansas City, Kansas (D. Kan. Feb. 24, 2012). In this civil rights/employment law case, the plaintiff, Terence Robinson, served the defendant, Arkansas City, with production requests that the defendant claimed were “grossly overbroad" and “seeking irrelevant information."
This case originated out of a claim by the plaintiff that the defendant, his former employer, did not give him a promotion or a pay raise based on his race. The court granted and denied, in part, both motions from the defendant (protective order) and the plaintiff (motion to compel). The ruling found that on top of the numerous production gaps by the defendant in responding to the plaintiff's discovery request, the defendant failed to produce information collected from the most obvious custodian of all – the plaintiff. The ruling explained that “it is inexcusable, furthermore, to respond to a request for production without reviewing the computer of a primary actor in the sequence of events leading to litigation.” The defendant was then ordered by the court to produce a “mirror image" of the plaintiff's missing hard drives from the production response.
Throughout his lengthy opinion (45 pages, which can be read in full here), Judge Rushfelt provides an instructive framework for attorneys to brush up on civil procedure, particularly how to (A) fulfill the burden to search and respond to discovery requests and (B) what will be deemed adequate objections to discovery requests.
Outlined below are some of the key takeaways from that case:
- A reasonable search for responsive information must be conducted when responding to a production request. “Parties, along with their employees and attorneys, have a duty to act competently, diligently, and ethically with respect to discharging discovery obligations. This requires a joint effort to identify all employees likely to have been authors, recipients or custodians of documents responsive to the requests for production." In this case, the defendant failed to produce the most obvious “key player" information, reflecting “halfhearted and ineffective efforts to search for responsive documents."
- Don't waste the court's time with general objections. Rather than provide specific reasons for their objections, the defendant offered a vague, perfunctory claim that the production request was “not reasonably calculated to lead to the discovery of admissible evidence." The court emphatically rejected these objections, calling them “worthless" and used as a tool to “merely delay discovery." “When parties assert 'hypothetical or contingent possibilities' as an objection, they make 'no meaningful effort to show the application of an such theoretical objection' to any particular discovery request."
- Fulfilling the burden of relevancy is a low threshold in the discovery stage. Discovery requests will be deemed relevant “if there is 'any possibility' that the information sought may be relevant to the claim or defense of any party." Here, the defendant failed to prove that the evidence requested by the plaintiff was “of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure."
- Omnibus phrases like “any and all documents and things" do not make a discovery request “per se overly broad." The court, when ruling on scope of a discovery request, will take into account the overall wording of a request, not just individual phrases. Discovery requests should be specific enough so that respondents can identify what is wanted, but courts will allow broad language if “its breadth is sufficiently narrowed by other language."
These lessons are still instructive today, almost seven years after the original ruling, and more than three years after the passage of the FRCP amendments. After all, similar lessons can be found throughout more recent case law, including in the following instances:
- Fischer v. Forrest (S.D.N.Y. Feb. 28, 2017) In this copyright infringement case, Judge Andrew Peck strongly chastised counsel for their reliance on boilerplate objections like “overly broad” and “burdensome,” asking “Why is it burdensome? How is it overly broad? This tells the court nothing.” Furthermore, he stated that “any discovery response that does not comply with Rule 34’s requirements to state objections with specificity will be deemed a waiver of all objections (except as to privilege).”
- Michael E. Davis, et al v. Electronic Arts, Inc. (N.D. Cal. April 3, 2018) In this case, the plaintiffs’ failure to provide specific responses to discovery requests led to sanctions. “Plaintiffs served untimely, deficient responses, and continued to take indefensible positions that were not substantially justified,” leading to sanctions including (1) the inability to use certain testimony and claims in future arguments and (2) a $25,000 sanction for attorneys’ fees.
- Tingle v. Hebert (M.D. La. June 8, 2017) With the increasing attention courts are paying to proportionality, courts will not justify “fishing expeditions” for relevant information. With a request for “all texts and emails” with any former or current employee, the plaintiff’s request was certainly broad—so broad that the court limited it as the request was not proportional to the matter at hand. Remember to think twice before ever using the word “all” when requesting data because in today’s cost-conscious courtrooms that type of request will be rejected.
While the courts’ rulings following the FRCP amendments have followed a trend articulated well before 2015, the nuances of e-discovery law and case rulings are constantly evolving. That’s why it’s important to stay abreast of e-discovery case law. For a review of the most popular e-discovery case rulings of 2018, download Exterro’s year-end case law white paper today.