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Fischer v. Forrest
United States District Court, S.D. New York
February 28, 2017
JAMES H. FISCHER, Plaintiff,
STEPHEN T. FORREST, JR., SANDRA F. FORREST, SHANE R. GEBAUER, and BRUSHY MOUNTAIN BEE FARM, INC., Defendants.
OPINION & ORDER
J. PECK, United States Magistrate Judge
time, once again, to issue a discovery wake-up call to the
Bar in this District:the Federal Rules of Civil Procedure were
amended effective December 1, 2015, and one change that
affects the daily work of every litigator is to Rule 34.
Specifically (and I use that term advisedly), responses to
discovery requests must:
• State grounds for objections with specificity;
• An objection must state whether any responsive
materials are being withheld on the basis of that objection;
• Specify the time for production and, if a rolling
production, when production will begin and when it will be
lawyers who have not changed their "form file"
violate one or more (and often all three) of these changes.
34(b)(2)(B)-(C) as amended states (new language in bold):
(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.
2015 Advisory Committee Notes to Rule 34 emphasize the
reasons for the amendments:
Rule 34(b)(2)(B) is amended to require that objections to
Rule 34 requests be stated with specificity. This
provision adopts the language of Rule 33(b)(4), eliminating
any doubt that less specific objections might be suitable
under Rule 34. The specificity of the objection ties to
the new provision in Rule 34(b)(2)(C) directing that an
objection must state whether any responsive materials are
being withheld on the basis of that objection. An
objection may state that a request is overboard, but if the
objection recognizes that some part of the request is
appropriate the objection should state the scope that is not
overbroad. Examples would be a statement that the responding
party will limit the search to documents or electronically
stored information created within a given period of time
prior to the events in suit, or to specified sources. When
there is such an objection, the statement of what has been
withheld can properly identify as matters
"withheld" anything beyond the scope of the search
specified in the objection.
Rule 34(b)(2)(B) is further amended to reflect the common
practice of producing copies of documents or electronically
stored information rather than simply permitting inspection.
The response to the request must state that copies will be
produced. The production must be completed either by the
time for inspection specified in the request or by another
reasonable time specifically identified in the
response. When it is necessary to make the production in
stages the response should specify the beginning and end
dates of the production.
Rule 34(b)(2)(C) is amended to provide that an objection
to a Rule 34 request must state whether anything is being
withheld on the basis of the objection. This amendment 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. The producing party does
not need to provide a detailed description or log of all
documents withheld, but does need to alert other parties to
the fact that documents have been withheld and thereby
facilitate an informed discussion of the objection. An
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