The problem with general objections On the ACEDS Blog, Kelly Twigger analyzes Bocock v. Innovate Corp. as a case she says is a prime example of the importance of specificity in responses to discovery requests because of the amendments to Federal Rule of Civil Procedure 34 made in 2015.In this case, plaintiffs were served interrogatories and requests for production on May 5, 2023. The plaintiffs were granted a 15-day extension by defendants on June 5. The plaintiffs responded on the day of the extended deadline, June 20, but with seven pages of “General Objections” that lacked a specific or substantive response to even one of the interrogatories or requests for production. Two days later, defendants insisted that the plaintiffs provide proper responses by June 28, noting that by failing to provide specific responses and objections, they would waive all objections to the discovery. The next day, plaintiffs said they were “working on the responses,” would “serve the plaintiffs’ respective discovery responses on a rolling basis – most likely starting next week,” and proposed a meet and confer for July 5 or 6. Defendants replied 90 minutes later, indicating their availability to meet, but plaintiffs did not respond.On July 12, defendants filed a motion to c

re. Such changes include:Aligning the scope of discovery found in 210.27 with that of Fed. R. Civ. Pro. 26. In particular, the proposed changes include deleting the reference to information that “appears reasonably calculated to lead to the discovery of admissible evidence” and inserting language emphasizing that discovery must be proportional to the needs of the investigation.Updating 210.28, which governs the procedures and limits associated with depositions. Proposed updates include adding language that clarifies that third-party depositions count toward a party group’s overall deposition limit, changing the number of depositions a complainant may take from five fact depositions per respondent to 20 total fact depositions, and limiting deposition time to one day of seven hours per witness (which may be altered upon agreement of the parties or order of the presiding administrative law judge).Adding a clarification to 210.30, which governs the production of documents, to conform with Fed. R. Civ. Pro. 34 by requiring that if a party is withholding documents based on an objection, it must affirmatively state that it is doing so.Codifying 210.32 to provide that the administrative law judge, in rare situations, may seek foreign judicial assistance on the Commission’s own authority rather than through a US district court when seeking to enforce a subpoena on a foreign entity.Interested parties may submit feedback regarding the proposed amendments at the Federal eRulemaking Portal or directly via the Commission’s website. Written comments must be received no later than 5:15 pm EDT on May 20, 2024.[View source.]

comply can lead to the waiver of crucial objections. This case exemplifies the judiciary’s dwindling patience for non-specific objections and the severe implications for parties and counsel alike.Privilege Preservation Requires Diligence: While the court stopped short of declaring a waiver of privilege, the narrow escape experienced by the plaintiffs in Bocock v. Innovate Corp. should not be misconstrued as leniency. It’s a clear signal that maintaining privilege necessitates meticulous care in crafting objections and responses.Costs and Consequences: Beyond the immediate directive to comply with discovery requests, the ruling also highlights the financial ramifications of noncompliance. The plaintiffs were ordered to bear the motion costs, reinforcing the principle that unfounded or poorly justified discovery practices can have tangible financial consequences.Conclusion:The Bocock v. Innovate Corp. decision is yet another example of how parties need to be aware of the 2015 changes to Federal Rule of Civil Procedure 34 that require specific objections to a written discovery response. Failure to abide by the change may result in waiver of objections that may cripple a matter.[View source.]

sed ESI Protocols and/or Requests for Production. I can’t make this point too strongly, because you’re not likely to discover that the other side didn’t collect and search cloud attachments until AFTER they make a production, putting you in the unenviable posture of asking for families produced without cloud attachments to be reproduced with cloud attachments.Craig Ball.If you’re smart, Dear Reader, you won’t fail to address cloud attachments explicitly in your proposed ESI Protocols and/or Requests for Production. I can’t make this point too strongly, because you’re not likely to discover that the other side didn’t collect and search cloud attachments until AFTER they make a production, putting you in the unenviable posture of asking for families produced without cloud attachments to be reproduced with cloud attachments. Anytime a Court hears that you are asking for something to be produced a second time in discovery, there’s a risk the Court may be misled by an objection grounded on Federal Rule of Civil Procedure Rule 34(b)(2)(E)(iii), which states that, [a] party need not produce the same electronically stored information in more than one form.” In my mind, “incomplete” and “complete” aren’t what the drafters of the Rule meant by “more than one form,” but be prepared to rebut the claim.At all events, a party who failed to collect cloud attachments will bewail the need to do it right and may cite as burdensome the challenge of distinguishing items reviewed without cloud transmittals from those requiring review when made whole by the inclusion of cloud attachments.Once a party collects cloud attachments and transmittals, there are various ways to distinguish between messages updated with cloud attachments and those previously reviewed without cloud attachments. Identifying families previously collected that have grown in size is one approach. Then, by applying a filter, only the attachments of these families would be subjected to supplementary keyword search and review. The emails with cloud attachments that are det

the court to sift through filings on its own. Courts do not act and should not be requested to act, in effect, as archaeologists and do the work counsel should have done.M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024).Similarly, there was a failure to provide pinpoint, or “PIN,” cites. The court wrote: “Ideally, when asking for relief, a party should direct the court to docket entries and pages necessary to support its contentions, rather than leaving the court to sift through filings on its own. Courts do not act and should not be requested to act, in effect, as archaeologists and do the work counsel should have done.”One issue was that the rolling productions continued while the motion to compel was pending. This created what the court called “moving targets.” For example, the court wrote: “But, we are not given a date for completion except we are told it will be fairly soon. And that is manifestly insufficient by any fair measure.” Under Fed.R.Civ.P. 34(b)(2)(B): “The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”Another problem was animosity. The court wrote: “M1st takes the opportunity to take a shot at M1, accusing them of being blasé about confidentiality…. It’s probably to be expected when the other side wants you to swear you’re not lying.”One last issue was likely important. The court found M1’s “oft-repeated” and “conclusory” assertions that the discovery at issue is “highly relevant” to be unhelpful. The court wrote that “not every piece of discovery is ‘highly relevant.’” Hyperbole seemed to characterize much of this dispute.My concern is with the requirement for a sworn statement. What are the mechanics of it?If the sworn statement is from the attorneys, I have two questions.First, what will a sworn statement add to the certification provision of Fed.R.Civ.P. 26(g)(1)(B)? Under Rule 26(g)(3): “If a certification violates this ru

At the time, many legal teams attempted to argue that emails were not discoverable because they weren’t, in fact, documents. This rule amendment stated that the wide variety of computer systems in use, as well as the speed of technological change, meant that the rule could not be limited to a precise definition of electronically stored information (ESI). Instead, the amendment addressed information “stored in any medium,” which not only included emails, but was flexible enough to encompass future technological changes and developments.FRCP Rule 34 and Team Collaboration PlatformsWith communication and collaboration platforms like Slack, Microsoft Teams, and Workplace by Meta first augmenting and now supplanting email usage, Rule 34’s amendment is once again having profound implications on eDiscovery. As with email two decades ago, legal teams are wrestling with the preservation and production requirements of ESI stored in these platforms.Some legal teams are once again attempting to say that these new forms of digital communication aren’t discoverable. Their arguments range from claims that Slack or Teams messages simply aren’t documents, to more practical complaints that the time and cost associated with extracting, processing, and ultimately reviewing thousands of messages is prohibitive.It’s not hard to see why some are pushing back on the basis of sheer data volumes—collaboration platforms can easily contain hundreds of thousands of messages spread across countless channels and direct conversations, making the ESI process c

ages violated the rules of discovery. And this turns in some measure on whether the source of the text messages, Ms. Forrest, falls within those rules.Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).Under Maryland Rule 4263(c)(2), in a criminal case:[t]he obligations of the State’s Attorney . . . extend to the material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case. [emphasis in Court’s opinion]Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).This Rule is quite different from the “possession, custody, and control” aspect of civil discovery. The disclosure obligations under this Rule of criminal procedure are significantly narrower than the discovery obligations imposed on litigants in civil cases. Fed.R.Civ.P. 34(b)(1) permits a civil litigant to request documents “in the responding party’s possession, custody, or control….” The scope of Maryland Rule 2-422(a)(1) is the same.Under that narrower rule, the Pointer Court rejected both of Mr. Pointer’s challenges to the late disclosure of the texts.First, it rejected the argument that the victim’s multiple pre-trial meetings with the State equated to “reporting” under the Rule.This argument fails in several ways. For one, the prosecution gave Mr. Pointer the text messages as soon as it could. More importantly, Rule 4-263 didn’t even oblige the State to produce the text messages under these circumstances. Mandatory disclosure is required only in narrow circumstances.Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).In short, the victim meeting with the prosecution to prepare her testimony did not trigger the Rule. In a civil case, a jurisdiction following the “practical” control standard might have reached a different result. SeeThe

tead, the mindless machine righted itself, executed a 180-degree turn, and charged downhill toward the dazed Burgett. The mower’s blades caught Burgett’s foot, nearly amputating a toe in his front yard. Any respite was only temporary; as part of his medical treatment, Burgett ultimately lost two toes. There were no other witnesses, no one who could contest Burgett’s Terminator-like description of the lawnmower’s relentless bloodlust. Or were there?“You’ll know it when you see it.”Ted Lasso, S2 Ep 6Someone else was at the scene that day in 2010; or rather, something else. And whether it’s a lawnmower, a wheelchair, a surgical handpiece, or any other product at the center of a personal injury products liability suit, that allegedly defective product often contains information critical to the claims and defenses of the parties. In addition to being the single most important piece of evidence in such a case, the product can often supply key “testimony” to the details of the accident.Enter Fed. R. Civ. P. 34. In day-to-day civil litigation, Rule 34 defines and governs the production of documents, the lifeblood of discovery. But the rule also contains a lesser-used provision for a party to “inspect, copy, test, or sample … any designated tangible thing.” Rule 34(a)(1)(B). Such requests are not limitless; the rule demands reasonableness as to descriptions of the “thing” to be inspected and as to time, place and manner of inspection. Rule 34(b)(1)(A) and (B). In Robert Burgett’s case, the parties inspected the Bronco lawnmower twice in 2012. Ultimately, the lawnmower’s good working condition at the 2012 inspections had “something to say” to rebut Robert Burgett’s allegations. The specific parameters of a Rule 34 product inspection are as follows:Rule 34(a) – Within the scope of Rule 26(b) – Fed. R. Civ. P. 26(b)(1) is the “go to” rule for the scope of permissible discovery, with its familiar refrain: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any par

23 WL 6977394 (S.D.N.Y. Oct. 23, 2023), U.S. District Judge Lewis J. Liman.Defendants argued that they required access to the electronic medical records in native form to (1) see the templates, functions, dropdowns, and buttons available when completing a chart; (2) identify who prepared, reviewed, viewed, or documented entries in a particular chart; (3) confirm that there are no other records or documents stored on the electronic medical record system that relate to the claims at issue; (4) examine “the full medication records and history maintained by the practice for the entire universe of patients at issue”; and (5) obtain access to all medical records for that universe of patients. Id. at *2. Plaintiffs responded that Defendants had not requested that the ESI be produced in native format and that they produced the ESI in a reasonably usable form, the same form in which such information is produced in the ordinary course of business to insurance carriers.Judge Liman explained that Federal Rule of Civil Procedure 34(b)(2)(E) sets forth the procedures applicable to the production of ESI and provides in pertinent part that “unless otherwise stipulated or ordered by the court … (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing [ESI], a party must produce it in the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same [ESI] in more than one form.”Judge Liman quoted from the Advisory Committee Notes to the 2006 Amendment to Rule 34, which provided that “the option to produce [ESI] in a reasonably usable form does not mean that a responding party is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.”Jud

ow need to establish that they fully and timely responded to each request. For example, does an institution need to document and track a request made over the phone that a customer service representative was able to resolve immediately during that phone call?Financial institutions covered by Section 1034(c) will need to assess their ability to track customer requests and determine if their current approach to logging and tracking customer inquiries is sufficient to meet the CFPB’s expectations for timely and fully responding to requests for information.The Advisory Opinion Suggests the CFPB Interprets Possession and Control BroadlySection 1034(c) states that an institution must provide the consumer with responsive information in the institution’s “possession or control.” In the advisory opinion, the CFPB explores the scope of this concept by referencing the obligations placed on government agencies in responding to Freedom of Information Act requests and on parties to litigation under Federal Rule of Civil Procedure 34. In particular, the reference to the “possession, custody, or control” standard of Rule 34 is a novel approach and introduces some ambiguity because courts have developed differing tests: Some apply the “practical ability” test, meaning a party must produce documents that it has the practical ability to obtain, even if they don’t have the legal right to obtain them. Other courts apply the “legal right” test, under which parties need only produce documents that they have the legal right to produce on demand. The Advisory Opinion references both standards, suggesting that the Bureau is taking a broad interpretation of the terms “possession and control” used in the statute.Time will tell how the CFPB will approach the application of this discovery concept to customer requests for information. For now, institutions should review or develop policies and procedures around this issue in consultation with their subpoena and legal order response teams to ensure the institution meets the “posse