Broad Discovery Requests and Objecting with Specificity

Drafting discovery requests is an art. Knowing how to object is a skill. Producing responsive information takes both skills.

Federal Courts are serious about objections now must “state with specificity” the reasons for an objection pursuant to Federal Rule of Civil Procedure Rule 34(b)(2(B). Judge Richard Bourgeois stated the following after citing the new Rule in a trucking accident case: Any general objection presumably applicable to all discovery requests, that fails to comply with Rule 34, is insufficient and will not be considered by the Court. Nkansah v. Martinez, No. 15-646-JWD-RLB, 2016 U.S. Dist. LEXIS 154078, at *10 n.1 (M.D. La. Nov. 7, 2016).

The Defendants propounded the following Request for Production: “all accident reports, incident and/or investigation reports, correspondence, e-mails, notes, telephone or text messages, logs or any other documents pertaining in any way to the subject matter of this litigation.” Nkansah, at *12. The Plaintiffs in turn produced the Accident Report and did not object. Id.

Businessman is Giving a lot of file

The Plaintiff testified at his deposition that the trucking company maintained driver logs that could have included when each driver slept. The Court stated that while the request was arguably broadly worded, “the information sought is relevant and within the scope of discovery.” Nkansah, at *12.

Judge Bourgeois ordered the Plaintiffs to supplement their production with any “additional reports, correspondence, e-mails, notes, telephone or text messages, logs or any other documents pertaining to the claims and defenses in this action, including any driver logs.” Id. The Court took the addition step to require the Plaintiffs to identify what efforts they took to locate responsive documents and communications in a signed declaration by counsel, if they had no further responsive information. Nkansah, at *12-13.

Explaining what efforts were done to locate responsive ESI can take multiple forms. The attorneys might include an affidavit or report from their forensic collection experts to explain the locations of data in the case and how the data was collected. There could also be a discussion of document review that explains what search strategies were used to identify responsive ESI, including search terms, predictive coding, email threading, and other advanced analytics. Some might be concerned this is requiring a party to prove a negative. Other might argue that this is requiring the disclosure of attorney-work product. However, requiring the producing party to demonstrate they took reasonable steps that did not miss accessible data is reasonable when a party is claiming none exists or producing a small amount of responsive ESI. The solution could be stating what steps were taken based on the text of the request for production and the technology used to identify the responsive ESI.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.