Luke van Houwelingen

In a recent article published in Law360, Beware of Conditional Reponses to Discovery, Gregory J. Leighton, Kevin C. May, and Andrew S. Fraker of Neal Gerber & Eisenberg LLP discuss the growing number of cases in which federal judges have scrutinized conditional discovery responses—responses that assert objections but state that documents will be produced “subject to” or “reserving” the objections. Because the use of this type of response is commonplace, and because the potential consequences—including wholesale waiver of objections—suggested by recent decisions could be severe, the issue is worth careful consideration.

Leighton and his co-authors discuss several recent decisions by federal magistrate judges in Kansas, Florida, and Arizona, in particular one by U.S. Magistrate Judge James P. O’Hara of the District of Kansas. In a decision in Sprint Communications Co., LP v. Comcast Cable Communications LLC, Judge O’Hara held that “whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.” No. 11-2684-JWL, 2014 WL 545544, at *3 (D.Kan. Feb. 11, 2014). The reasoning of this and other decisions for rejecting conditional responses is generally consistent. As Leighton and his co-authors note, “For these judges, the plain language of Rule 34 does not permit conditional responses,” but rather only allows parties to “(1) produce the documents as requested, (2) object to the request as a whole or (3) object to a specifically identified part of the request while responding to the nonobjectionable portion.” As Judge O’Hara put it: “[N]o objections may be ‘reserved’ under the rules; ‘they are either raised or they are waived.’” 2014 WL 545544, at *3 (quoting Tardif v. People for the Ethical Treatment of Animals, No. 2:09-cv-537-FtM-29SPC, 2011 WL 1627165, at *2 (M.D.Fla. Apr. 29, 2011)). (Although both the article and the cases focus mainly on document requests under Rule 34, some of the cases apply similar reasoning to interrogatories or requests for admission as well. E.g., Tardif, 2011 WL 1627165).

A common theme of these decisions is that vague or ambiguous objections mixed with substantive responses leaves the requesting party guessing whether the opposing party has fully responded to its requests. The courts that have rejected conditional responses reason that such responses waste time and create needless uncertainty by leaving “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.” 2014 WL 545544 at *2 (quoting Consumer Electronics Assoc. v. Compras & Buys Magazine, Inc., No. 08-21085-CIV, 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18. 2008)). This concern is consistent with the general disfavor with which federal courts view “boilerplate” objections. See, e.g., Tardif, 2011 WL 1627165 at *2 (deeming as waived and overruling the “same formulaic objection” plaintiff made to most of the defendant’s discovery requests before answering); Athridge v. Aetna Casualty & Surety Co., 184 F.R.D. 181, 190 (D.D.C. 1998) (stating that “boilerplate” general objections “do not comply with Fed. R. Civ. P. 34(b) and courts disfavor them” because, inter alia, they “leave[] the [responding party] wondering what documents are being produced and what documents are being withheld” and concluding that objecting party had waived its right to object).

Litigants perhaps can satisfy the concern of Judge O’Hara and other courts and avoid such consequences as waiver of objections simply by being clear and specific in their discovery responses. Leighton and his co-authors state that the courts in the cited decisions have “correctly recognized that the discovery process is improved when litigants are specific about what categories of documents they are withholding based on specific objections.” Such specificity “puts the requesting party in a position to evaluate the objection and determine whether a motion to compel is appropriate.”

But, as Leighton and his co-authors point out, a categorical rule against conditional responses can be problematic. The article addresses objections based on the attorney-client privilege as an example of where conditional responses may be appropriate. As the authors explain, because Rule 26(b)(5) requires the use of privilege logs that identify any withheld documents, there is no unreasonable uncertainty about what a party is withholding when it agrees to produce documents “subject to” an objection that a request seeks privileged material. Thus, as the article concludes, “the issue may be better addressed by focusing on the adequacy of the privilege log than by categorically rejecting conditional responses in the context of the attorney-client privilege.” Yet, the conditional responses at issue in Sprint Communications asserted objections based on the attorney-client privilege. And as Leighton and his co-authors point out, Judge O’Hara “made no reference to whether an appropriate privilege log was provided in that case,” which suggests the court found the conditional responses improper without considering whether a privilege log had obviated (or would obviate) the uncertainty the court was concerned about.

A categorical rule against conditional responses presents challenges for discovery even beyond privilege assertions, though—such a rule actually could impede discovery. Parties routinely serve broad discovery requests. Sometimes this is inadvertent, perhaps because the requesting party does not realize how broad the request is as written, as opposed to what is intended in the mind of the drafter. Other times it is deliberate, but with good intentions—for example, the requesting party does not know enough about the case yet to craft narrowly-targeted requests and so it feels forced to cast a broader net early in discovery, or the requesting party fears that the responding party will exploit any perceived gaps in the request to withhold relevant documents.

Regardless of the reason a party receives overbroad discovery requests, conditional responses can be a highly effective means of advancing discovery, by providing the requesting party what it needs while preserving the responding party’s objections to the balance of what is requested. In other words, the responding party can assert and preserve all appropriate objections to an improper discovery request while nonetheless providing some—and perhaps much—of the information requested. In this way, conditional responses can facilitate compromise and advance discovery expeditiously.

Where the parties have a good faith dispute over the discoverability of requested information, impasse can be avoided by the responding party agreeing to provide some of that information while preserving its objections to the request overall. For example, if a request seeks voluminous information on a particular topic and the responding party believes the topic is wholly irrelevant, it can object to the request on relevance grounds—and preserve that objection—but nonetheless agree to provide some of the information because the burden or prejudice is not substantial. Indeed, this is a very common approach to overbroad requests. A categorical rule against conditional responses would prevent this sort of compromise, because the responding party would be forced to stand on its relevance objection and produce nothing rather than produce some of the requested information subject to its objections and risk wholesale waiver of its objections.

Given the concern of Judge O’Hara and similar courts about the uncertainty conditional responses can generate, it would seem the real problem is not with the conditional nature of the responses, but with their lack of clarity. Again, perhaps if parties providing conditional responses were clear and specific about exactly what it is they will and will not produce, even the courts that have rejected conditional responses would be satisfied. Indeed, this is essentially what another District of Kansas magistrate judge ordered in Pro Fit Management v. Lady of America Franchise Corporation, No. 08-CV-2662 JAR/DJW, 2011 WL 939226, at *9 (D. Kan., Feb. 25, 2011). There, Judge David J. Waxse required the responding party to amend its responses to certain requests to “make it clear whether it is withholding any documents on the grounds of privilege and to specifically identify those responsive documents by Bates number” on its privilege log. Id.

Similarly, if a party objects to a request on, say, five different grounds but agrees to produce responsive material “subject to” its objections, it should specifically identify those objections—and the corresponding aspects of the request, where applicable—for which it is not producing documents, or otherwise state with specificity what it is and is not producing. This approach should avoid the sort of uncertainty that Judge O’Hara and other courts have found unacceptable while preserving the responding party’s objections. If a court were to reject conditional responses even under this approach, doing so likely would do more harm than good in the long run, by depriving parties of an effective tool for avoiding discovery disputes and keeping discovery moving.