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S.D.N.Y. Litigators Hit Snooze Button, Magistrate Judge Peck Issues Second “Wake-Up Call” for “Every Litigator”

Renowned (e)discovery guru (and I use that term advisedly) Andrew Peck, a U.S. Magistrate Judge for the Southern District of New York, recently issued what he termed a “wake-up call” to the Bar in his District. It was actually the second such “wake-up call” Judge Peck has issued. The first was in 2009 and involved ESI keyword searching. See William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 134 (S.D.N.Y. 2009) (“This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).”).

In Fischer v. Forrest, 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Judge Peck again sounded the alarm, this time with respect to the 2015 amendments to Fed. R. Civ. P. 34. In Fischer, the defendants objected to Rule 34 document requests with what Judge Peck called “form file” objections:

Defendant objects to this Request for Production to the extent that it is overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence. Defendant further objects to this Request as it requests information already in Plaintiff’s possession.

Judge Peck held that these and similar objections did not satisfy three of Rule 34’s requirements:

  • State grounds for objections with specificity;
  • An objection must state whether any responsive materials are being withheld on the basis of that objection; and
  • Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.

Judge Peck ordered the defendants to revise their responses to comply with the Rules. Concluding his order, Judge Peck was clear: “[t]he December 1, 2015 amendments to the Federal Rules of Civil Procedure are now 15 months old. It is time for all counsel to learn the now-current Rule and update their “form” files.” Peck cautioned his audience that any future discovery response not complying with Rule 34’s specificity requirement will be deemed a waiver of all objections except privilege.

We’ll wait and see whether this second order really does raise counsel from their apparent slumber, but they ought to get about smelling the coffee.

 

by John H. Dollarhide

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