“Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses

New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests
December 8, 2021
Notice of Proposed Changes to the Maryland Rules
December 18, 2021

In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests.  Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with District of Maryland authority.

The “old” Responding Primer is, in many ways, a mirror image of the new Requesting Primer.  Both emphasize the need for specificity or reasonable particularity, and both recommend abandoning discovery forms that pre-date the December 2015 amendments to the Federal Rules of Civil Procedure.  In the words of the Responding Primer, “[i]t is now time for all counsel to learn the now-current Rules and update their ‘form’ files.”  Id. at 453 (citation omitted).

Rule 34 requires that an objecting party “state with specificity the ground for objecting to the request” Fed.R.Civ.P. 34(b)(2); cf. Md. Rule 2-422(c)(“The grounds for each refusal shall be fully stated.”).  This mandate parallels the “reasonable particularity” requirement for document requests.

Briefly summarized, Sedona’s Responding Primer presents three themes:  1) meet and confer, early and often; 2) state objections with specificity; and, 3) state whether any responsive materials are being withheld under an objection.  However, it also covers much more.  For example, Sedona addresses “general objections,” notes the impropriety of “to the extent” objections, and points to the general ineffectiveness of “reservation of rights” and “subject to and without waiving these objections” objections. As always, the Sedona Conference makes a number of concrete suggestions.  For example:

When a responding party is willing to search for some or all of the requested documents but does not yet know if those documents exist and where, it can meet Rule 34’s requirements by describing the scope of what it is willing to search for.

Among many excellent suggestions, Sedona also provides a format for memorializing “good faith” discussions.  Id. at 462.

Much of what Sedona describes is not new to Maryland practitioners.  For example, the Response Primer points to the importance of Rule 26(g), a point brought home by District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case and The Duty of Inquiry and Sanctions for Failure to Investigate Client’s Claim, as well as decisions such as Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-58, passim (D. Md. 2008)(“ Rule 26(g) also was enacted over twenty-five years ago to bring an end to the equally abusive practice of objecting to discovery requests reflexively—but not reflectively—and without a factual basis.”).  In fact, Judge Grimm wrote in Mancia:

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver.

As additional examples of agreement, Sedona states that boilerplate objections, even if made “out of ‘an abundance of caution,’ are not allowed.” 19 Sedona Conf.J. at 474.  To the same effect, it is well-established in the District of Maryland that “general” objections, conclusory assertions of privilege without a privilege log, “vanilla” confidentiality objections, “to the extent” objections, and unsupported objections that requests are “vague, overly broad, and unduly burdensome” are ineffective, at a minimum.  Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021); Stone v. Trump, 453 F. Supp. 3d 758, 766 (D. Md. 2020); Waterkeeper All., Inc. v. Alan & Kristin Hudson Farm, 2011 WL 13217389, at *3 (D. Md. June 1, 2011); Mezu v. Morgan State Univ., 269 F.R.D. 565, 573 (D. Md. 2010); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008); Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 231 (D. Md. 2005); Hall v. Sullivan, 231 F.R.D. 468, 470 (D. Md. 2005); Marens v. Carrabba’s Italian Grill, Inc., 196 F.R.D. 35, 38 (D. Md. 2000) (privilege is waived by general objection); E.g., Liguria Foods, Inc. v. Griffith Lab’ys, Inc., 320 F.R.D. 168, 186 (N.D. Iowa 2017).

For example, as in the Sedona Response Primer, in Maryland “to the extent” objections are “worthless for anything beyond the delay of discovery.”  Mancia, 253 F.R.D. at 359; accord Sedona Response Primer at 475.  Similarly, ipse dixit justifications of search methodology are unpersuasive.  See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 261 (D. Md. 2008) (“[I]pse dixit pronouncements from lawyers unsupported by an affidavit or other showing that the search methodology was effective for its intended purpose are of little value to a trial judge….”).

Further, District of Maryland Discovery Guidelines are consistent with the Sedona Response  Primer.  For example:

  • Guideline 10.a  has long complemented the more recent Rule Fed. R. Civ. P. 34(b)(2)(C), which requires that a responding party state if it is withholding documents under its objections.  Guideline 10.a provides that: “If a partial or incomplete answer is provided, the answering party shall state that the answer is partial or incomplete.”
  • Guideline 1.f states that unresolved discovery disputes should be brought to the Court’s attention promptly after efforts to resolve a dispute have been unsuccessful.[1]
  • Guideline 1.f also states: “Counsel may bring the unresolved dispute to the Court’s attention by filing a letter, in lieu of a written motion, that briefly describes the dispute, unless otherwise directed by the Court.” [Emphasis added].
  • Guideline 1.b provides that, if “either side believes that the Court’s assistance would be helpful in framing or implementing such a [discovery] plan, then the Court will make itself available with reasonable promptness, in response to a brief, written request for a discovery management conference that identifies the issues for consideration.”
  • Guideline 1.g authorizes the Court to employ “other expedited procedures” to resolve a discovery dispute.

Additionally, the ESI Principles of the District of Maryland complement the Sedona Response Primer.  For example, Principle 1 encourages early discussion and cooperation.  Principle 2.02 and Appendix 1 list recommended discussion topics.  Principle 2.04 addresses production format, privilege logs, and discovery of search methodologies and litigation hold materials, and the Principles provide detailed appendices.  Principle 5 provides for bringing disputes to the Court “at the earliest reasonable opportunity.”

However, although critical of “general objections,” the Sedona Response Primer carves out a “very limited” role for them.  19 Sedona Conf.J. at 472, et seq.  I would argue that, on a close reading, what Sedona suggests is permissible is not a “classic” general objection.  For example, Sedona would permit a general privilege objection if the responding party states that it will serve a privilege log within 14 days. Id. at 473.  It would permit a general confidentiality objection stating that the objection remains “until a Protective Order is in place.”  And, it would permit a general overbreadth objection after “multiple” efforts to discuss specific issues and resolve the dispute. Id. at 474.

Taken together, the Requesting Primer and the Responding Primer remain solid, peer-reviewed, readable, concise, and authoritative resources focused on requiring specificity in responses and reasonable particularity in requests.

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[1] Additionally, ESI Principle 2.05 states: “Disputes regarding ESI that the parties are unable to resolve shall be presented to the Court at the earliest reasonable opportunity.”

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