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Responses to Discovery Objections

Lawyers 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 asking 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

its scope or otherwise limit it in some meaningful way.

The simplest way to evaluate whether a request is appropriate is to practice how you will explain to the judge what evidence a complete response would generate and how you would use that evidence to support an element of your client’s claim. If you cannot give the judge an example of responsive evidence and explain how the jury or factfinder would use that evidence to answer a question at the end of the case, then think long and hard before complaining about the objections. But if you can easily provide an explanation, then you should consider asking the judge to overrule this objection.

How Bad Are the Objections? Once you are satisfied that your requests are appropriate and have offered to limit requests as needed, the next step is to thoroughly review the objections and identify what is inappropriate.

While many more inappropriate objections exist, the following examples represent improper objections and tactics that frequently appear in initial responses. • “General” Objections/Preliminary Statements: Neither the Federal nor the Texas Rules of Civil Procedure allow a party to rely on a preliminary statement or general objections. 3 General objections are typically made once at the beginning of a set of responses and purport to apply to requests “to the extent” they are overly broad, unduly burdensome, irrelevant or not reasonably calculated to lead to the discovery of admissible evidence, vague, harassing, duplicative, or privileged. But these general objections are simply not valid in federal or Texas state courts.

The Rules make clear that a party is to lodge objections and respond to requests based on the information available at the time of the response. 5 If the facts later change, then the party must amend or supplement their objections and responses. But no provision in the Federal or Texas Rules of Civil Procedure allows a party to make prophylactic objections. • “Subject to and Without Waiving” Responses: A party may not assert objections and then produce information (or promise to produce information) “subject to and without waiving” those objections. 6 Federal courts consistently chastise counsel for this tactic: “[T]he practice of responding to interrogatories and documents requests ‘subject to’ and/or ‘without waiving’ objections is ‘manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.’” 7 Along the same lines, a party who objects to only part of a request must respond to the remainder of the request that is not objectionable. 8 • Unsupported Broad and Burden- ‘‘ We all just need to stop it. Stop asking 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.”

• Prophylactic Objections: Similarly, neither federal nor Texas law allows a party to assert objections “just in case” they might apply. 4

some Objections: Without explanation and evidence, objections that a request is “overly broad” and “unduly burdensome” are meaningless boilerplate. Even if the request seems obviously “overly broad” and “unduly burdensome,” the Federal and Texas Rules of Civil Procedure still require the resisting party to explain why. If responding to the request would require an unreasonable amount of time or money as compared against the reasonable needs of the case (proportionality), then the response must include specific, persuasive facts that explain why, preferably in an affidavit. 9 If the response to your request fails to include this information, then point out to opposing counsel that they must comply with this obligation. 10

• Failure to File a Proper and Timely Motion for Protective Order: If a party seeks to avoid responding and, instead, requests protection from responding to discovery requests based on claims of undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights, then that party must file a motion for protective order—an objection is not enough. 11 Importantly, a party seeking protection must support its request with evidence of a particular, specific, and demonstrable injury that justifies a protective order—the party may not simply make conclusory allegations. 12

• Failure to Supply a Complete Privilege Log: If the responses assert privileges, was a privilege log provided? This is one of the most frequently overlooked (and incorrectly completed) discovery obligations. Be sure to follow up to make sure a log is provided when required and that it is complete and correct, and then review the log for any documents that do not appear to be truly privileged. 13

What Does the Court Require in Discovery Disputes? One of the most embarrassing moments in a lawyer’s life comes when a judge asks whether that lawyer bothered to look at the court’s procedures. Given the frequency of discovery disputes, many courts have developed very specific requirements for handling them. And a lawyer’s failure to find and follow those procedures all but guarantees a loss— even if the objection was particularly poorly made. Counsel should also meaningfully follow the court’s procedures. If the court requires an in-person conference, then meet in person. If the court requires a short letter explaining the dispute, then send a short letter—not a 10-page assault on opposing counsel. If they have told us once, they have told us 1,000 times: judges hate discovery disputes. Do not make things even worse by complaining about opposing counsel’s behavior if you have not identified and followed the Rules and the court’s procedures yourself.

How Long Do You Have Left to Work This Out? Consider the posture of the case. Is it early in the discovery process or are you close to trial? How long does it take to get a hearing? Has the court already heard other motions to compel in the case? If so, what did you learn about the judge’s approach to that motion? Would the testimony of a particular witness provide context or persuasive support for your need for the information? If so, then do you have time to get that testimony before you have to file a motion to compel? Always think strategically about timing in discovery disputes. For example, after you confer with opposing counsel and reach an agreement on amended objections and responses, it is critical to include a deadline for your receipt of those amended responses. Do not be dissuaded by a comment that you are insisting on an “arbitrary” deadline. The actual deadline was when their initial responses were due. The Rules require you to meet and confer with opposing counsel, but they do not require you to give them an unreasonable amount of time to comply with discovery obligations that existed in the first place. So look at the other deadlines in your case, and include a deadline for the amended responses that will allow you enough time to file a motion to compel if the responses still do not comply with the Rules.

What Is Your History With Opposing Counsel? If you have handled other cases with the opposing counsel, consider that relationship. Sometimes a frank phone call can work through the issues. Sometimes you can discover what the underlying issues truly are. You may learn that opposing counsel agrees that a particular objection is inappropriate, but it is the client who refuses to respond without a court order requiring them to do so. In that instance, it may be helpful to remind opposing counsel that a Texas lawyer’s obligations include a promise to “endeavor to achieve [a] client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible,” but “[a] client has no right to instruct [a lawyer] to refuse reasonable requests made by other counsel,” and a lawyer must advise a client “that we will not pursue tactics which are intended primarily for delay” and “will not pursue any course of action which is without merit.” 14 On the federal side, cite Rule 26(g) (1)(B), which makes clear counsel’s certification when signing discovery objections and responses: they have made a reasonable inquiry and, to the best of their knowledge, the responses and objections are consistent with the Rules, warranted by existing law, and not meant for any improper purpose, among other certifications.

Some lawyers continue to treat boilerplate objections as an appropriate first response to discovery requests, choosing to sit back and wait for opposing counsel to complain. This approach is

a delay tactic that every court agrees is wrong.

Appropriate objections certainly have their place. But objections should not be a first line of defense. Countless cases say so. Common sense says so. Let’s all just answer the questions, folks.

April Strahan is of counsel to The Ammons Law Firm and handles complex plaintiff’s personal injury and product liability cases across the country.

Endnotes 1. Robert K. Wise, Ending Evasive Responses to Written Discovery: A Guide for Properly Responding (and Objecting) to Interrogatories and Document Requests Under the Texas Discovery Rules, 65 BAYLOR L. REV. 510, 512–13 (Spring 2013). 2. F or comprehensive guides to drafting proper discovery responses in Texas cases, see Harper v. City of Dallas, No. 3:14-CV-2647-M, 2017 WL 3674830 (N.D. Tex. Aug. 25, 2017); Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014); Wise, supra; Hon. X. Rodriguez & J.W. Christian, Making A Plan: Select Discovery Issues That Are Important to the Practitioner, available at https://www.texasbar. com/AM/Template.cfm?Section=articles&Template=/ CM/HTMLDisplay.cfm&ContentID=44485 (last visited Dec. 18, 2019). 3. S ee, e.g., Heller, 303 F.R.D. at 483; In re Park Cities Bank, 409 S.W.3d 859, 878 (Tex. App.—Tyler 2013, no pet.). 4. In re Park Cities Bank, 409 S.W.3d at 878 (citing Tex. R. Civ. P. 193.2(c), (e)); Heller, 303 F.R.D. at 484 (quoting Anderson v. Caldwell Cty. Sheriff’s Office, No. 1:09cv423, 2011 WL 2414140, at *3 (W.D.N.C. June 10, 2011)) (“[T] here is no provision in the Federal Rules that allows a party to assert objections simply to preserve them.”). 5. Se e Tex. R. Civ. P. 193.1, 193.2(c)–(d) (“A party may object to written discovery only if a good faith factual and legal basis for the objection exists at the time the objection is made. An objection or response to written discovery may be amended or supplemented to state an objection or basis that, at the time the objection or response initially was made, either was inapplicable or was unknown after reasonable inquiry.”); see also Fed. R. Civ. P. 26(e). 6. See Tex. R. Civ. P. 193.2(a) (requiring the responding party to “state... the extent to which the party is refusing to comply with the request”). 7. Heller, 303 F.R.D. at 486–87 (quoting Sprint Commc’ns Co., L.P. v. Comcast Cable Commc’ns, LLC, No. 11-2684- JWL, 2014 WL 545544, at *2 (D. Kan. Feb. 11, 2014)). 8. H eller, 303 F.R.D. at 489; Tex. R. Civ. P. 193.2(b) (“A party must comply with as much of the request to which the party has made no objection unless it is unreasonable under the circumstances to do so before obtaining a ruling on the objection.”). 9. H eller, 303 F.R.D. at 488 (“If a discovery request is overbroad, the responding party must, to comply with Rule 33 or Rule 34, explain the extent to which it is overbroad and answer or respond to the extent that it is not—and explain the scope of what the responding party is answering or responding to.”); In re Alford Chevrolet–Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig. proceeding). 10. See Tex. R. Civ. P. 196.2(b). 11. See Tex. R. Civ. P. 192.6. 12. In re Alford Chevrolet–Geo, 997 S.W.2d at 181. 13. See Tex. R. Civ. P. 193.3 (setting forth the requirements when withholding privileged information or material). 14. Texas Lawyer’s Creed (Nov. 7, 1989), available at https:// www.legalethicstexas.com/Ethics-Resources/Rules/ Texas-Lawyer-s-Creed/Texas-Lawyer-s-Creed (emphasis added).

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