It is common practice for litigators to respond to discovery requests by reciting a litany of objections, followed by a conditional response: “Subject to and without waiver of the foregoing objections, defendant will produce non-privileged, responsive documents….” This practice serves a legitimate purpose: allowing responding parties to substantively respond to discovery requests, while at the same shielding from disclosure objectionable materials. A series of recent federal court decisions, however, have now called this practice into question.
The most recent of these decisions was handed down by the United States District Court for the District of Kansasearlier this year.Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL (Feb. 11, 2014). In that case, the plaintiff, Sprint, conditionally responded to certain document requests by objecting on the basis of privilege, but then stating “that it would produce non-privileged and responsive documents ‘subject to and without waiving’ its objections.”
On defendant’s motion to compel, the District Court held that Sprint’s “purported reservation of rights . . . was improper and ultimately [had] the effect of waiving Sprint’s objections” to the requests at issue. The Court held that such conditional responses to discovery requests were:
1. Confusing and potentially misleading (“‘such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered’”);
2. Improper under the Federal Rules of Civil Procedure (“‘[o]bjecting but answering subject to the objection is not one of the allowed choices under the Federal Rules’”); and
3. In derogation of common sense (“‘answering subject to an objection lacks any rational basis. There is either a sustainable objection or there is not’”).
The District Court cited with approvalsimilar decisions from district courts in Arizona (Haeger v. Goodyear Tire & Rubber Co., 906 F. Supp.2d 938 (D. Ariz 2012)); Florida (e.g., Consumer Electronics Assoc. v. Compras and Buys Magazine, Inc., 2008 WL 4327253, at *2 (S.D. Fla. Sept. 18, 2008); and Kansas (e.g., Pro Fit Management, Inc. v. Lady of Am. Franchise Corp., 2011 WL 939226, at *7-9 (D. Kan. Feb. 25, 2011)).
Whether this amounts to a trend remains unclear, but the lesson for litigators seems clear: when confronted with a discovery request that seeks both objectionable and non-objectionable materials (as most do), the safest practice is to either (a) object to the request in its entirety; or (b) specifically identify the portion of the request objected to, perhaps also identifying the specific documents or information being withheld on the basis of the asserted objection(s). As the District Court stated, “Rule 34(b)(2) permits only three responses to a request for production of documents: produce the documents as requested, ‘state an objection to the request’ as a whole, or state an ‘objection to part of [the] request, provided that the response specifies the part objected to and responds to the non-objectionable portion.” Perversely, this practice will likely increase the burden on respondents (who will need to spend greater time and resources analyzing potentially responsive materials and carefully framing their objections to discovery requests, especially to broad and cumbersome requests) and on courts (which will likely be called upon to intervene when parties object to requests in their entirety for fear of waiving their objections).