Judge Peck Has Had Enough of “Meaningless Boilerplate Responses”
Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017) In this trademark infringement case, Magistrate Judge Andrew Peck delivered a stern message to attorneys in the Southern District of New York: get your act together. The source of the court’s frustration is the continued use of discovery responses citing old jargon that runs afoul of FRCP amendments enacted on December 1, 2015. Using this case to prove his point, Judge Peck focused on the “not so new” amendments to Rules 26(b)(1) and 34(b)(2). The defendants objected to 17 of the plaintiff’s requests for production of documents using the former “overbroad and unduly burdensome” language, violating two requirements of new Rule 34(b)(2) to specify objections and to indicate whether any materials are being held on the basis of their objections. To stem this tide of noncompliance, Judge Peck issued this warning: “From now on in cases before this Court, any discovery response that does not comply with Rule 34's requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).” Further, Judge Peck also rejected the defendant’s use of former language in Rule 26(b), “likely to lead to the discovery of relevant, admissible evidence,” and warned lawyers to remove it from their jargon.