Hide-the-Ball Document Production No Longer Being Tolerated by Some Courts

It is a common practice in Hatch-Waxman and other civil litigation for parties to try to hide the ball in producing documents by interposing vague objections to document requests and then producing select documents subject to their vague objections.  Some courts are beginning to deem that such conditional responses to requests for production are not permitted by Rule 34 of the Federal Rules of Civil Procedure, and deeming their objections waived.

Rule 34 permits three options in responding to a request for production:  (1) to produce the requested documents; (2) to “state an objection to the request;” or (3) to “state an objection to part of [the] request” provided that the response specifies part objected to and responds to the non-objectionable portion.  However, it has become commonplace for litigants, including parties to document-heavy Hatch-Waxman litigation, to interpose broad and vague objections and then to offer to produce documents “subject to” or “without waiving” their objections.  Such was the case in the recent decision in Sprint Communications v. Cable One, out of the District of Kansas, 2014 U.S. Dist. LEXIS 16938.  But there, Magistrate Judge James P. O’Hara would have none of this game-playing, ordering that the objections in such conditional document request responses were waived.

In that case, in-house attorneys of the plaintiff testified in a previous trial about the plaintiff’s evaluation of the patentability of the inventions of the patents-in-suit.  In light of that testimony, the defendant sought documents related to the assessment of patentability of the inventions and the preparation and prosecution of the applications for the patents.  In response to the document requests, the plaintiff interposed several objections, including that the requested information was protected by the attorney-client privilege.

Judge O’Hara held that the objections to those document requests had been waived and ordered the production of the documents.  Importantly, the court never mentioned the asserted attorney-client privilege at all, instead relying solely on the fact that the defendant offered to produce documents, albeit subject to the objections.

The judge provided a number of grounds for his well-reasoned decision.  First, the court reasoned that conditional responses are confusing, leaving the requesting party guessing as to what documents might be being withheld and leading to wasteful motion practice, wasting not only the parties’ time, but that of the court.  Second, the court noted that conditional responses are not permitted by Rule 34, which gives a party no right to object and then produce documents subject to the objection.  Finally, conditional responses violate common sense, according to the court, in that, were such responses permitted, discovery would break down in virtually every case because of the obfuscation such responses cause.  Judge O’Hara cited to a number of decisions from other courts to support his decision, including other decisions from the District of Kansas, as well as decisions out of Florida and Arizona.

Litigants and their counsel would be well advised to interpose objections only when appropriate, and not to offer to produce documents conditioned on objections.  And, parties who face the game-playing tactics of providing conditional responses to document requests should avail themselves of Rule 34 and these decisions finding the objections in such responses waived.