Fed.R. Civ. Pro. 34: Can You Require a Verified Statement That the Responding Party Has Searched for Responsive Documents

Often,  parties answers Requests for Production by stating that they have "no documents".  Because written responses to Requests for Production are not verified, it is difficult to insure that the responding party has made a meaningful search for the requested documents. 


Some courts will require a responding party to verify, under oath, that they have searched for responsive documents and none have been found. This is particularly true where there is extrinsic evidence that the documents should exist.

if there is reason to believe that the response is incomplete or incorrect, the court may require a certification that the respondent "ha[s] conducted a search for the information reasonably available to them through their agents, attorneys, or others subject to their control and has[] determined that the information requested either does not exist or that is has been produced." Ordinarily, a sworn statement that a party has no more documents in its possession, custody or control is sufficient to satisfy the party's obligation to respond to a request for production of documents

Eramo v. Rolling Stone LLC, 2016 U.S. Dist. LEXIS 80794, *5-6 (W.D. Va. June 21, 2016) quoting Meeks v. Parsons, No. 1:03-cv-6700, 2009 U.S. Dist. LEXIS 90283, (E.D. Cal. Sept. 18, 2009)(emphasis added)

Fed.R. Civ. Pro. 33 and 34: Are Objections to Discovery Waived If the Discovery Responses Are Served Late?

Yes. If you serve discovery late, you have waived objections,  potentially even objections at to privilege and work product. 

“[O]bjections to [written discovery] must be stated with particularity in a timely answer, and that a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown”

Precision Fabrics Group, Inc. v. Tietex Int'l, Ltd., 2015 U.S. Dist. LEXIS 104382, *9 (M.D.N.C. Aug. 10, 2015)(citations omitted)(emphasis in original) see also Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005) ("[I]mplicit within Rule 34 is the requirement that objections to document production requests must be stated with particularity in a timely answer, and that a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown." (emphasis added)); Phillips v. Dallas Carriers Corp., 133 F.R.D. 475, 477 (M.D.N.C. 1990) (Sharp, M.J.) ("It is well settled that the failure to make a timely objection in response to a Rule 34 request results in waiver."). 

Fed.R. Civ. Pro. 33 (d): How Detailed Does a Response Need to Be Under Federal Rule of Civil Procedure 33(d) (Answering by Reference to Documents)

Courts have held that a party can only answer an Interrogatory by reference to documents if the reference is specific, detailed and identifies the documents that answer the question posed in the Interrogatory:

“[T]he producing party must adequately and precisely specify, for each interrogatory, the actual documents where the requested information will be found. Hillyard Enters. V. Warren Co. , 2003 U.S. Dist. LEXIS 27922,  (E.D.N.C.2003) ; Securities and Exchange Commission v. Elfindepan, 206 F.R.D. 574, 576 (M.D.N.C. 2002) ("Document dumps or vague references to documents do not suffice."). This requirement is meant "to make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived." Fed. R. Civ. P. 33 advisory committee's note (1980 Amendment).”

Brown v. Blue Cross & Blue Shield of Ala., 2014 U.S. Dist. LEXIS 96105, *9 (W.D.N.C. July 15, 2014)(emphasis added)

Fed.R. Civ. Pro. 33 (d): How Detailed Does a Response Need to Be Under Federal Rule of Civil Procedure 33(d) (Answering by Reference to Documents)

Courts have held that a party can only answer an Interrogatory by reference to documents if the reference is specific, detailed and identifies the documents that answer the question posed in the Interrogatory:

“[T]he producing party must adequately and precisely specify, for each interrogatory, the actual documents where the requested information will be found. Hillyard Enters. V. Warren Co. , 2003 U.S. Dist. LEXIS 27922,  (E.D.N.C.2003) ; Securities and Exchange Commission v. Elfindepan, 206 F.R.D. 574, 576 (M.D.N.C. 2002) ("Document dumps or vague references to documents do not suffice."). This requirement is meant "to make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived." Fed. R. Civ. P. 33 advisory committee's note (1980 Amendment).”

Brown v. Blue Cross & Blue Shield of Ala., 2014 U.S. Dist. LEXIS 96105, *9 (W.D.N.C. July 15, 2014)(emphasis added)

Fed. R. Civ. Pro. 37: Can A Prevailing Party Obtain Attorney Fees for Preparing Meet and Confer Letters

Courts sometimes require parties who lose discovery disputes to pay for the prevailing parties attorneys fees related to the dispute.  The losing party will often agree that time spent on the Motion to Compel and work subsequent to the Motion to Compel is appropriate.  They argue, however, that any and all time spent before filing the Motion to Compel “was spent in the normal course of litigation”.  This argument seeks to exclude the often time consuming "meet and confer" process.

This limitation is inconsistent with the Federal Rules. Both the Federal Rules of Civil Procedure and many Local Rules require the movant to have “conferred or attempted to confer” with the opposing party before filing a Motion to Compel. Fed. R. Civ. Pro. 37(a)(1); EDVA Local Rule 37(E).  The party bringing the discovery dispute is obligated to identify the Plaintiffs’ deficient discovery responses and seek supplementation. 

Fed.R. Civ. Pro. 33(a)(1): How Do You Count Interrogatory Sub-parts?

Often, a party will refuse to answer Interrogatories by claiming that the Interrogatories served exceed the federal limit (25 interrogatories) or a state limit ( generally between 25 and 30).  The Rules count " discrete sub-parts" as interrogatories, i.e: "Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts" FRCP 33(a)(1).


How does one determine if a clause, phrase or adjective is a "discrete subpart" that counts as an additional interrogatory?  Most Courts follow the "related question" test.  If the clause, phrase, or adjective is logically and factually related to the overall interrogatory then it is not "discrete" and does not count as a separate interrogatory:

 

"District courts in the Eleventh Circuit, like most district courts in other circuits, have adopted and applied 'the "related question" test to determine whether the subparts are discrete, asking whether the particular subparts are "logically or factually subsumed within and necessarily related to the primary question.'" The Mitchell Company, Inc. v. Campus, No. CA 07-0177-KD-C, 2008 U.S. Dist. LEXIS 47505, 2008 WL 2468564, at *14 (S.D. Ala. June 16, 2008) (quoting Forum Architects, LLC v. Candela, No. 1:07CV190-SPM/AK, 2008 U.S. Dist. LEXIS 4705, 2008 WL 217119, at *1 (N.D. Fla. Jan. 23, 2008)); see also Powell v. The Home Depot USA, Inc., No. 07-80435-Civ, 2008 U.S. Dist. LEXIS 49144, 2008 WL 2473748, at *2 (S.D. Fla. June 16, 2008) (Hopkins, M.J.) ("Courts within the jurisdiction of the Eleventh Circuit have recently followed what is known as the 'related question test' to determine whether a subpart in an interrogatory should be considered discrete."). "If the subparts are subsumed and necessarily related to the primary question, then the subpart is not 'discrete' within the meaning of Rule 33(a)." Oliver v. City of Orlando, 2007 U.S. Dist. LEXIS 80552 at *2 (M.D. Fla. Oct. 31, 2007).”

Perez v. Aircom Mgmt. Corp., 2012 U.S. Dist. LEXIS 136140, *2-3 (S.D. Fla. Sept. 24, 2012) (emphasis added)[1]

 

            Indeed, the  “related question” test is followed by most courts, nationwide:

 

“[M]ost courts have followed what is sometimes referred to as the "related question" approach. In an effort to give some specificity to the inquiry, the test applied under the "related question" approach is generally stated as follows: subparts that are logically or factually subsumed within and necessarily related to the primary question" should not be treated as separate interrogatories. Kendall v. GES Exposition Servs., Inc., 174 F.R.D. 684, 686 (D. Nev. 1997) (quoting Ginn v. Gemini Inc., 137 F.R.D. 320, 322 (D. Nev. 1991)); see also Gilmore v. Lockard, No. 1:12-cv-925, 2015 U.S. Dist. LEXIS 118059, 2015 WL 5173170, at *8 (E.D. Cal. Sept. 3, 2015); In re Lithium Ion Batteries Antitrust Litig., No. 13-md-2420, 2015 U.S. Dist. LEXIS 45976, 2015 WL 1221924, at *2 (N.D. Cal. Mar. 17, 2015); Klein v. Federal Ins. Co., No. 7:03-cv-102, 2014 U.S. Dist. LEXIS 95482, 2014 WL 3408355, at *6 (N.D. Tex. July 14, 2014); Makaeff v. Trump Univ., LLC, No. 10-cv-940, 2014 U.S. Dist. LEXIS 94732, 2014 WL 3490356, at *4 (S.D. Cal. July 11, 2014); Perez v. Aircom Mgmt. Corp., No. 12-60322, 2012 U.S. Dist. LEXIS 136140, 2012 WL 6811079, at *1 (S.D. Fla. Sept. 24, 2012); Thermal Design, Inc. v. Guardian Bldg. Prods., Inc., No. 08-C-828, 2011 U.S. Dist. LEXIS 50108, 2011 WL 1527025, at *2 (E.D. Wis. Apr. 20, 2011); Calderon v. Reederei Claus-Peter Offen GmbH & Co., No. 07-61022, 2008 U.S. Dist. LEXIS 76323, 2008 WL 4194810, at *1 (S.D. Fla. Sept. 11, 2008); State Farm Mut., Auto. Ins. Co. v. Pain & Injury Rehabilitation Clinic, Inc., No. 07-cv-15129, 2008 U.S. Dist. LEXIS 50507, 2008 WL 2605206, at *2 (E.D. Mich. June 30, 2008); Madison v. Nesmith, No. 9:06-cv-1488, 2008 U.S. Dist. LEXIS 16130, 2008 WL 619171, at *3 (N.D.N.Y. Mar. 3, 2008); Williams v. Taser Int'l, Inc., No. 1:06-cv-51, 2007 U.S. Dist. LEXIS 40280, 2007 WL 1630875, at *2 (N.D. Ga. June 4, 2007); Trevino v. ACB Am., Inc., 232 F.R.D. 612.,614  (N.D. Cal. 2006); Safeco of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998).

Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., 2016 U.S. Dist. LEXIS 63199, *7-8 (E.D. Tex. May 13, 2016)(emphasis added)

 

In sum, Courts around the country follow the “related question” test.