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It has been said that “the proof is in the pudding.” In a lawsuit in the American legal system, the best way to find out what is in the pudding is to conduct discovery.
Whether you are in state or federal court, a series of procedural rules and laws exists to facilitate this process. A litigant can serve requests for production, interrogatories, and requests for admissions that help elucidate the pudding’s nature.
Of course, not all discovery requests are created equal. Sometimes, when a party receives a discovery request, that party wishes to object for some reason.
Maybe the request is designed to harass or is a fishing expedition that has nothing to do with the litigation at hand. Maybe it is impossible to interpret because it is written poorly. Maybe it requests privileged information that only the party’s attorney should know! Whatever the case, there are reasons to withhold information.
When a party seeks to withhold information in response to a discovery request, that party needs to serve an objection. That is discovery 101. But how a party handles the objection is a source of increasing abuse and therefore scrutiny.
Many attorneys, even from the most prestigious law firms or with 30 years of experience, commit the sin of serving a list of boilerplate objections. Then, “subject to and without waiving” the objections, they proceed to provide information in response to the request!
You cannot have it both ways. You cannot claim the protection of an objection and then give the information anyway. Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D. Fla. 2008) (holding such objections improper).
Either the objection is valid, entitling you to withhold the information, or it is not, in which case you provide the information. It is difficult for a party receiving such a response (the objection and the information) to tell whether or not information has been withheld. Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008). And it is burdensome to resolve the matter in court.
That is why federal courts in particular are coming down hard on this discovery abuse. They are increasingly holding that such objections are bad form and that providing information automatically waives the benefit of any objection. Pepperwood of Naples Condo. Ass’n, Inc. v. Nationwide Mut. Fire Ins. Co., 2011 WL 3841557, at *3 (M.D. Fla. Aug. 29, 2011) (lamenting the increasing prevalence of the practice and clearly holding it impermissible under federal rules).
So why do so many lawyers do it anyway, forcing the opposing party to call their bluff? Probably for several reasons. The objections can double, triple, or even quadruple the length of a discovery response, justifying far greater billing. Or maybe the lawyer is just ignorant.
Either way, at Waugh Grant, we never play that game.