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Judge Peck: Specify or Waive Objections

Monday, March 6, 2017   (0 Comments)
Posted by: Mary Mack
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On February 28, 2017, The Honorable Judge Peck used his judicial megaphone to warn litigants in his court (and the many courts who look to Judge Peck for guidance on eDiscovery) that objections without sufficient detail will be deemed waived, except for privilege.

In his eDiscovery opinion and order, Fischer v Forrest,  _ F. Supp. 3rd _, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Judge Peck counts the ways the defendants violated the Federal Rules of Civil Procedure (FRCP) as amended in 2015.

Taking defendants' counsel to task, Judge Peck listed the following transgressions:

  1. Including old language no longer in the Rules, like "subject matter" and not "likely to lead to the discovery of relevant, admissible evidence."
  2. Claiming requests are overly broad or unduly burdensome without saying more about how and why
  3. Incorporating General Objections into each response, stating that use of boilerplate "violates Rule 34(b)(2)(B)'s specificity requirement as well as Rule 34(b)(2)(C)'s requirement to indicate whether any responsive materials are withheld on the basis of an objection."
  4. Not stating when productions will be made.

Three takeaways:

  1. Read current forms and boilerplate objections.  Remove repetitive language.  Remove or adjust outdated language.
  2. Include a standard fill in the blank for when productions will be made with a note to file to speak with litigation support before assigning a date.
  3. Review Early Case Assessment process for tighter analysis of claims, defenses and metrics for estimating burden and overreach.

Download the case at K&L Gates ediscoverylaw blog.

See Ralph Losey's analysis here.  One of Ralph's e-discoveryteam blog's graphics:


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