By April Strahan
When and Why to Force Responses to Discovery Objections
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awyers often overcommit themselves, stretch themselves too thin, and wearily whittle away at their never-ending todo lists. So, the temptation is strong to object to discovery requests and conserve the time it would otherwise take to investigate and provide substantive responses. Both sides of the “v.” face daily challenges in managing tasks and deadlines, and both sides sometimes use the “objections-instead-ofresponses” tactic just so they can move to the next task. But this tactic is at least one root cause of our ever-expanding task lists, as well as the plague of discovery disputes that infects virtually every courthouse today. We all just need to stop it. Stop ask-
ing for extensions only to serve nothing more than objections. Stop sending the same requests you used in your last case without tailoring it to your current case. And stop lodging objections that don’t apply or which you haven’t adequately explained. “That’s how I’ve done it for years” is not a good reason to keep doing it, and courts are beginning to push back on lawyers who do. Still, lawyers often insist on a “bargaining” approach to discovery in which initial responses are simply treated as a “first offer” that leads to a lengthy series of negotiations and motion practice.1 So, when you get a batch of responses that are little more than objections, run through this list before filing a generic motion to compel everything. Maybe you ultimately will try to compel it all. But think through at least these considerations before you do: (1) the evidence you need (versus the evidence you want), (2) the objections at issue, (3) the judge’s discovery dispute procedures, (4) the case posture, and (5) your history with opposing counsel. What Did You Ask For (and Why Does it Matter)? It goes without saying that discovery requests should be specific to your case and appropriately tailored to seek only discoverable information.2 But just as the pressures of an active practice can tempt lawyers to lodge an objection rather than take time to find the answer, those same pressures also tempt lawyers to reuse discovery requests from past cases without taking the time to tailor those requests to the current case. So, the first thing you should do is take an honest look at each one of the requests you sent. Is it appropriate for this case? Is it sufficiently specific? Will it likely result in discovery of relevant evidence? If not, then think about whether you really want to argue over the objections to that request. And if a request is not specific enough or needs to be amended to better suit the current case, then consider offering to narrow
