Producing Documents “Subject to and Without Waiving” Objections May Render Your Objections Null and Void
Including the conditional language “subject to and without waiving the foregoing objection” is considered standard procedure in discovery production. Because this practice is so widespread, many litigators never give a second thought to adding this boilerplate language when responding to an opposing party’s discovery requests. With a growing number of federal court decisions condemning the validity of this language, it may be time for attorneys and their clients to rethink their discovery approach. Federal courts in Kansas, Florida, Arizona, Ohio and California have recently held that the practice of producing documents “subject to and without waiving” objections is confusing, misleading and impermissible under the Federal Rules of Civil Procedure and may ultimately waive a party’s objections to the specific document requests.
Federal Court Decisions – Conditional Responses can Waive Your Objections to Discovery Requests
In Sprint Comm. Co. L.P. v. Comcast Cable Comm., LLC, a U.S. Magistrate Judge in the District of Kansas held that Sprint’s conditional responses to the defendant’s document requests waived any objections that Sprint may have had to the defendant’s requests. 2014 WL 545544 (D. Kan. Feb. 11, 2014). The Sprint Court followed decisions by its sister courts holding “whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.” Id. at *3 (citing Estridge v. Target Corp., 2012 WL 527051 at *2 (S.D. Fla. Feb. 16, 2012), quoting Tardif v. People for the Ethical Treatment of Animals, 2011 WL 1627165 at *2 (M.D. Fla. Apr. 29, 2011)).
In the Sprint case, the plaintiff, Sprint, produced documents stating: “Subject to and without waiver of the foregoing objections . . . Sprint will produce non-privileged responsive documents within its custody and control.” Id. at *2. Although the Sprint court acknowledged that including conditional language in discovery requests has “become common practice” it held that Sprint’s “purported reservations of rights [were] improper and ultimately [had] the effect of waiving Sprint’s objections to these specific document requests.” Id. In reaching its decision the Sprint court explained that these types of practices are “confusing” and “misleading” and can leave the opposing party wondering whether all documents have been produced or if some documents have been withheld on the basis of the objection. Id.
The Sprint court also reasoned that the Federal Rules of Civil Procedure Rule 34(b)(2) does not permit conditional responses. Id at 3. According to the Sprint court, Rule 34(b)(2) only provides for three responses to a document discovery request: (1) produce the documents as requested, (2) state an objection to the request in whole, or (3) respond to the non-objectionable part and state an objection in part that specifies what part is being objected to.
In Martin v. Zale Delaware, Inc., the United States District Court for the Middle District of Florida also pointed to Rule 34(b)(2) in its reasoning, stating that that because the Rule “requires a party objecting to a discovery request to include reasons for the objection,” a party’s use of “conclusory, boilerplate objections that fail to explain the precise grounds that make the request objectionable” are not permitted. 2008 WL 5255555, *1 (M.D. Fla. Dec. 15, 2008). The Martin court further explained that these types of answers and objections “[preserve] nothing and [waste] the time and resources of the parties and the court.” Id. at *2 (quoting Consumer Elec. Assoc.v. Compras and Buys Magazine, Inc.2008 WL 4327253 at *3 (S.D. Fla. Sept. 18, 2008)).
Exercise Caution When Responding to Discovery Requests
While a number of federal courts across the nation have held conditional responses to discovery requests to be improper and impermissible under the Federal Rules of Civil Procedure, state courts in Pennsylvania and West Virginia have not yet spoken on this issue. With the law still developing in this area, our firm will keep a close eye on state court decisions and continue to monitor activity in the federal courts. In the meantime, attorneys and their clients would be wise to use caution when responding to discovery requests. We recommend taking the following actions to help avoid future problems:
1. Do Not Use Boilerplate Objections. The federal courts do not look favorably upon boilerplate objections. Where a party seeks to object to discovery production, the party should narrowly tailor the objection and include clear and specific language that explains why it is making the objection.
2. State the Objections and the Documents Being Withheld. If a party objects in whole to a particular discovery request, the party should clearly indicate that documents are being withheld and explain the reason. Should a party decide to produce the documents and merely include the standard “subject to and without waiving the foregoing objection” language, the party runs the risk of waiving its stated objection.
3. Limited/Partial Production. When a party is responding in part to a discovery request, the party should produce the non-objectionable documents, explaining what documents will be produced in response to the request and providing a precise explanation of what part is being objected to.