In the ancient year of 2009, Gil Greenman and James Weingarten, of Williams & Connolly LLP, wrote “Beware the Use of Absolute Language Regarding Electronically Stored Information,” 9 Digital Discovery and e-Evidence 11 (BNA Nov. 1, 2009).
Their thesis was simple and correct:
“All,” “any,” and “every” are dangerous words when describing electronically stored information (“ESI”).
They explained, that, “[l]eft unqualified,” these terms “lead almost inevitably to over-promising and to exposing lawyers and their clients to criticism and even sanctions….” They point to the fragility and dispersal of ESI as presenting the danger.
In The Hon. Paul Grimm, Charles Fax, and Paul Sandler, “Maryland Discovery Problems and Solutions” (Md. State Bar Ass’n. 2020), 28-29, 83, the authors wrote that: “Questions that ask for ‘all facts’ are generally considered overly broad and unduly burdensome.” Instead, the inquiry should be for material or principal facts. Id. at n. 17. The authors suggest: “Limitation of the inquiry to ‘material’ and ‘principal’ facts, as opposed to ‘all’ facts makes the interrogatory acceptable in form.” Id. at 59.
To the same effect, The Sedona Conference recommends that requesting parties avoid the use of “any and all” document requests. “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sed.Conf.J. 447, 464, 467, 469 (2018).
The Sedona Conference asserts that: “Any increase in scope gained by such language is likely to be offset by wasted time spent resolving objections or narrowing the scope of the request, or by motion practice in which the request may be viewed as overbroad.”
Sedona provides a solution:
Bogging down requests for specific documents with the “any and all” preamble usually serves to draw objections and delay production. Instead, make the request a simple one, such as “Produce plaintiff’s work performance evaluations from 2012 to 2015.”
Id. at 467 (emphasis added).
One problem with “any and all” requests in the context of ESI is that a prudent producing party may realize the impossibility of producing “all” of anything. Does “all” include every identical copy on each system backup? That legitimate concern triggers an objection.
That said, requests for “any and all” documents have been in attorney’s toolkits since discovery began and remain in use today. Sandoz, Inc. v. United Therapeutics Corp., 2021 WL 287874, at *1 nn. 1-4 (D.N.J. Jan. 28, 2021).
Some decisions continue to permit their use. Solano-Sanchez v. State Farm Mut. Auto Ins. Co., 2021 WL 229400, at *4 (E.D. Pa. Jan. 22, 2021).
Discovery is, of course, fact and case-sensitive. On other facts, other courts have concluded that “documents requests seeking ‘any and all’ documents ‘relating to’ are overly broad.” Donnelly v. Arringdon Dev., Inc., 2005 WL 8167556, at *1 (M.D.N.C. Nov. 8, 2005).
The Arrington court cited precent that “’any and all’ document requests ‘ask for everything under the sky’ and ‘are anything but appropriate’.” Id. (citation omitted). It wrote that “any and all” document requests are “clearly over broad.” Id. (citation omitted); accord C.D.S. Inc. v. Zetler, 2016 WL 11651898, at *2 (S.D.N.Y. Dec. 14, 2016); cf. In re Application of Vale S.A., 2021 WL 311236, at *3 (S.D.N.Y. Jan. 29, 2021) (request for “any and all information” over 13 year span); Walker v. Newman Univ., Inc., 2020 WL 6708667, at *10 (D. Kan. Nov. 16, 2020) (request for any and all call records from October 2017 to the present).
To paraphrase The Hon. Paul W. Grimm, a “court may look for guidance to the many reported decisions on this issue. However, when it does so, it will quickly discover that, as at ‘Alice’s Restaurant,’ one can find what one wants.” Sullivan v. Glock, Inc., 175 F.R.D. 497, 505 (D. Md. 1997).
At a minimum, a litigant asking for “any and all” documents should do so with great care: “Courts within the Tenth Circuit have noted that discovery requests may be facially overbroad when they use terms such as ‘any and all,’ ‘referencing,’ or ‘pertaining to’ with respect to a broad category of documents.” J White, L.C. v. Wiseman, 2020 WL 3507408, at *2 (D. Utah June 29, 2020).
There is no silver bullet and there are no magic words. One problem is that boilerplate often meets boilerplate. Where a discovering party uses absolute language, the following exchange is typical:
By RFP No. 3, Plaintiff requested that Defendant: “Identify and produce a complete copy of any and all written or official certification of Defendant Lugo receiving or being issue training and/or supervision regarding (CSP-LAC) written policy and procedure issuing out loss of privilege from January 16, 2014 to December 31, 2019.” Dkt. 68 at 16; Dkt. 72 at 13. Defendant responded to RFP No. 3, as follows:
Defendant objects to this Request on the following grounds: (1) it is vague, ambiguous, and overly broad as to the phrase “any and all written or official certification,” “receiving or being issue training and/or supervision,” “written policy and procedure,” “issuing out,” and “loss of privilege,” requiring Defendant to guess as to the intended meaning; (2) it is overly broad as to time and scope; (3) it lacks foundation and does not describe the material requested with reasonable particularity to determine what is sought and allow the opportunity for appropriate objection; (4) it is compound; (5) it seeks information that is irrelevant to any party’s claim or defense and is not proportional to the needs of the case, considering the importance of the issues at stake in the action and the importance of the discovery in resolving the issues; (6) it seeks information shielded from disclosure by the official information privilege pursuant to federal common law, and seeks information that invades the privacy rights of Defendant in peace officer personnel records protected by state and federal privileges, California Penal Code section 832.7 and the California Peace Officer’s Bill of Rights and disclosure violates the procedures outlined in California Evidence Code sections 1043 and 1045. Based on the foregoing objections, no documents will be produced.
Castle v. Lugo, 2020 WL 4354230, at *3 (C.D. Cal. Apr. 29, 2020) (emphasis added); see also Telecomm. Sys., Inc. v. Houserman, 2020 WL 5500372, at *4 (W.D. Wash. Sept. 11, 2020).
That does not further the goal of the just, speedy, and inexpensive determination of the action. Fed.R.Civ.P. 1.
This post focused on “any and all” discovery requests; however, the concern is equally applicable to responses. When a litigant states that, without waiving its objections, it will produce “all” relevant documents in its possession, custody, or control, it should exercise great care. Or, perhaps it should heed the advice and avoid over-promising? That is the topic for a future post.
In Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 at *8 (W.D. Ky. Apr. 20, 2021), a party requested “[d]ocuments sufficient to disclose” annual revenue.
In “Rules Matter: A ‘Perry Mason Moment’ Was Derailed by a Discovery Violation,” there is a discussion of the import of promising to disclose “all” communications and then failing to do so.