Sample Objections to and Caselaw Regarding Written Discovery–Interrogatories, Requests to Produce, and Requests for Admission
Objecting to discovery (interrogatories, requests for production of documents, and requests for admission) is a necessary thing at times. As long as one is purposeful in approach, objections can assist your case. Take the wrong approach, or simply copy this objection cheat sheet without much thought, and you may find yourself sanctioned. Consider the counsel given in this ABA article by Andrew Fesler before drafting your discovery responses:
“How to present a winning objection:
- If the request would take an unreasonable amount of time or money to fulfill in relation to the reasonable needs of the case (proportionality), recite specific, persuasive facts that explain why, preferably in an affidavit.
- If the request is not reasonably related to any claim or defense, and if there is no good reason to go beyond the ordinary scope of discovery under Rule 26(b), take the time to explain why in your discovery response.
- Comply with Rule 34’s requirement that you state whether any responsive materials are being withheld on the basis of the objection.
- If you are not producing documents when your responses come due, state when the documents will be produced.
At any discovery conference, you want to sound like the most thoughtful and reasonable lawyer in the room. Start early. Build your discovery objections with the same care that you build your case in chief.”
For a review of what Nevada federal judges have to say about discovery under the proportionality standard, see this article
“Repeating the familiar phrase that each request is ‘vague, ambiguous, overly broad, unduly burdensome and oppressive, not relevant nor calculated to lead to the discovery of admissible evidence and, further, seeks material protected by the attorney/client or other privilege and the work product doctrine’ is insufficient. . . . The burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal discovery rules.” Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001) (citing Pleasants v. Allbaugh, 2002 U.S.Dist. Lexis 8941 (D. D.C. 2002); G-69 v. Degnan, 130 F.R.D. 326 (D. N.J. 1990); Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982)).
“When, instead of specific, particularized objections, a party asserts general objections to every interrogatory and request for production, that practice is improper. Use of such “general” objections is disfavored.” Id. (citing Ritacca v. Abbott Labs, 203 F.R.D. 332 (E.D.Ill. 2001); Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 181 (D. D.C. 1998). NRCP 33(a), 934(b) and EDCR 2.40 all contemplate specific objections or answers to each discovery request.)
“Boilerplate and generalized objections are inadequate and tantamount to no objection at all.” Partner Weekly, LLC v. Viable Mktg. Corp., No. 2:09-CV-2120-PMP-VCF, 2014 WL 1577486, at *2 (D. Nev. Apr. 17, 2014) (citing Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal.1999). “Therefore, the party opposing discovery must allege (1) specific facts, which indicate the nature and extent of the burden, usually by affidavit or other reliable evidence, or (2) sufficient detail regarding the time, money and procedures required to comply with the purportedly improper request.” Id. (citing Jackson v. Montgomery Ward & Co., Inc., 173 F.R.D. 524 (D. Nev.1997) (citations omitted); Cory v. Aztec Steel Bldg., Inc., 225 F.R.D. 667, 672 (D. Kan.2005)).
Basic— Relevant means germane and not “competent” or “admissible”. 8 Wright, Miller & Marcus, Federal Practice and Procedure Civil 2d § 2008 (cited by Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 526 (D. Nev. 1997)). The requests must be relevant and cannot be unreasonably cumulative, duplicative, or unnecessarily burdensome in light of their benefit. Id. (citing Oppenheimer Fund. Inc. v. Sanders, 437 U.S. 340, 352, 98 S.Ct. 2380, 2390, 57 L.Ed.2d 253 (1978)).
Objecting party must specifically detail the reasons why each request is irrelevant. Painters Joint Comm. v. Employee Painters Trust Health & Welfare Fund, No. 2:10-CV-01385-JCM, 2011 WL 4573349, at *5 (D. Nev. Sept. 29, 2011) order corrected on reconsideration sub nom. Painters Joint Comm. v. J.L. Wallco, Inc., No. 2:10-CV-1385 JCM PAL, 2011 WL 5854714 (D. Nev. Nov. 21, 2011); Koninklijke Philips Electronics N.V. v. KXD Tech., Inc., No. 2:05CV01532RLH-GWF, 2007 WL 778153, at *4 (D. Nev. Mar. 12, 2007) (citing Graham v. Casey’s General Stores, 206 F.R.D. 251, 253–4 (S.D. Ind. 2000).
Broad and Remote–The question is overly broad and remote and, as such, is not calculated to lead to the discovery of information relevant to the subject matter of this action, nor to the discovery of admissible evidence. An overly broad discovery request lacks specificity as to time, place, and/or subject matter being requested. Discovery is sufficiently limited and specific in its directive where compliance to its terms would not be unreasonably burdensome. Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 695 (D. Nev. 1994) (citing United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976)); CBS v. Super. Ct., 263 Cal. App. 2d 12, 19, 69 Cal. Rptr. 348, 352 (Cal. App. 2d 1968).
Requests were over broad because they used language so broad that it was impossible to determine what amongst numerous documents fell within the scope of the requests. Krause v. Nevada Mut. Ins. Co., No. 2:12-CV-00342-JCM, 2014 WL 496936, at *5 (D. Nev. Feb. 6, 2014) aff’d, No. 2:12-CV-342 JCM CWH, 2014 WL 3592655 (D. Nev. July 21, 2014) (citing Dauska v. Green Bay Packaging Inc., 291 F.R.D. 251 (E.D. Wisc. 2013)).
A discovery request is overly broad and unduly burdensome on its face if it uses an omnibus term such as ‘relating to,’ ‘pertaining to,’ or ‘concerning’ to modify a general category or broad range of documents or information. Id.
Right of Privacy-Seeks Irrelevant Personal Information–The question invades Plaintiff/Defendant’s right of privacy, is impermissibly overbroad and, therefore, oppressive, burdensome, and irrelevant to the subject matter of this action in that it seeks disclosure of personal and private information. Nesbit v. Dep’t of Pub. Safety, 283 F. App’x 531, 533 (9th Cir. 2008) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n. 21, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (noting that privacy interests may be a basis for restricting discovery)).
Objection. The discovery sought is unreasonably burdensome and overbroad, as it unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive. Defendant’s financial condition is irrelevant. Although financial condition may be relevant to the pursuit of punitive damages (Allstate Ins. Co. v. Nassiri, 2011 WL 318101 (D. Nev. 2011)), Plaintiff does not claim punitive damages here. This answering defendant exercises his general right of privacy in his financial information. Sweeney v. UNLV Research Foundation, 2010 WL 1756875 (D. Nev. 2010). Ordinarily, Rule 26 will not permit discovery of a defendant’s financial condition, since such matters are not relevant and cannot lead to the discovery of admissible evidence. Groupwell Intern. (HK) Ltd. v. Gourmet Exp., LLC, 277 F. R.D. 348, 359 (W.D.Ky., 2011). Discovery may not invade the defendant’s privacy without weighing the needs of the case, the amount in controversy, the importance of the issues at stake, the potential for finding relevant material, and the importance of the proposed discovery in resolving the issues. United Factory Furniture Corp. v. Alterwitz, 2012 WL 1155741, *4 (D. Nev. 2012).
Taxes–Objection. This answering defendant’s financial statements and/or tax returns are not relevant to the subject matter of the pending action. The Ninth Circuit recognizes a public policy against unnecessary public disclosure of tax returns. Copper Sands Homeowners Assoc., Inc. v. Copper Sands Realty, LLC., 2012 WL 1080291, *4 (D. Nev. 2012). The Court may only order their production if they are relevant and where the requesting party shows a compelling need for the same, which is a higher standard than regular discovery requests. Id.; Trilegiant Corp. v.Sitel Corp., 272 F.R.D. 360, 368 (S.D. NY 2010). Defendant’s financial condition is likewise irrelevant. Although financial condition may be relevant to the pursuit of punitive damages (Allstate Ins. Co. v. Nassiri, 2011 WL 318101 (D. Nev. 2011)), Plaintiff does not claim punitive damages here. This answering defendant exercises his general right of privacy in his financial information. Sweeney v. UNLV Research Foundation, 2010 WL 1756875 (D. Nev. 2010). Ordinarily, Rule 26 will not permit discovery of a defendant’s financial condition, since such matters are not relevant and cannot lead to the discovuyer of admissible evidence.” Groupwell Inter’l. (HK) Ltd. v. Groumet Express, LLC, 277 F. R.D. 348, 359 (W.D. Kent. 2011). Discovery may not invade the defendant’s privacy without weighing the needs of the case, the amount in controversy, the importance of the issues at stake, the potential for finding relevant material, and the importance of the proposed discovery in resolving the issues. United Factory Furniture Corp. v. Alterwitz, 2012 WL 1155741, *4 (D. Nev. 2012).
Indefinite Time–To answer this question would result in annoyance, embarrassment, or oppression to Plaintiff/Defendant in that the question is overly broad, indefinite as to time and without reasonable limitation in its scope. Courts will limit temporally over broad requests. Aevoe Corp. v. AE Tech Co., No. 2:12-CV-00053-GMN, 2013 WL 5324787, at *2 (D. Nev. Sept. 20, 2013); Painters Joint Comm. v. J.L. Wallco, Inc., No. 2:10-CV-1385 JCM PAL, 2011 WL 5854714, at *2 (D. Nev. Nov. 21, 2011); See First Interstate Bank of Oregon v. Natl. Bank and Trust Co. of Norwich, 127 F.R.D. 186, 188 (D. Or. 1989) (limiting time frame requested in interrogatories to dates of incident in question, rather than 10 year scope originally propounded in the interrogatory). For employment case, the entire period of employment may be the relevant temporal limitation. Cannata v. Wyndham Worldwide Corp., No. 2:10-CV-00068-PMP, 2011 WL 2923888, at *2 (D. Nev. July 18, 2011).
Requests for “any and all facts”—A request seeking “all facts” and “all information related to each and every allegation” is facially burdensome. In re MGM Mirage Sec. Litig., No. 2:09-CV-1558-GMN, 2014 WL 6675732, at *5 (D. Nev. Nov. 25, 2014); Wynn Las Vegas v. Zoggolis, No. 14–cv–157– MMD–VCF, 2014 WL 2772241, at *3 (D. Nev. June 17, 2014) (Ferenbach, M.J.); Switch Commc’ns Grp. v. Ballard, No. 2:11-CV-00285-KJD, 2011 WL 3957434, at *8 (D. Nev. Sept. 7, 2011) (quoting ” Steil v. Humana Kansas City, Inc., 1197 F.R.D. 445, 447 (D. Kan. 2000) “Steal [SIC] states that an interrogatory may reasonably ask for the material or principal facts which support a party’s contentions. “However, ‘to require specifically ‘each and every’ fact and application of law to fact … would too often require a laborious, time-consuming analysis, search, and description of incidental, secondary, and perhaps irrelevant and trivial details.’”)
“All-encompassing interrogatories which require the plaintiff to provide a detailed narrative of its entire case, including the identity every witness and document that supports each described fact. Courts have held that such “blockbuster” interrogatories are unduly burdensome on their face. See e.g. Hilt v. SFC, Inc., 170 F.R.D. 182, 186–87 (D. Kan. 1997) and Grynberg v.. Total S.A., 2006 WL 1186836, *6–7 (D. Colo. 2006).” F.T.C. v. Ivy Capital, Inc., No. 2:11-CV-00283-JCM, 2012 WL 1883507, at *9 (D. Nev. May 22, 2012).
Burdensome and Oppressive—“The court has broad discretion in determining whether discovery is burdensome and oppressive. See e.g. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). The court may also make any order which justice requires to protect a party or person from undue burden, oppression or expense. United States v. Columbia Broadcasting System, Inc., 666 F.2d 364, 369 (9th Cir.), cert. denied 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1329 (1982).” Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 696 (D. Nev. 1994). The Court has considerable authority to limit a party’s pursuit of otherwise discoverable information where the burden of a discovery request is likely to outweigh the benefits. Miller v. Ricci, No. 11-859, No. 3:2011cv00859 – Document 74 (D. N.J. Feb. 26, 2013).
Cumulative or Duplicative— The court may limit discovery where the documentation sought is unreasonably cumulative or duplicative. Shoen v. Shoen, 5 F.3d 1289, 1299 (9th Cir.1993) (concurring opinion), citing Fed.R.Civ.P. 26. Diamond State Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 697 (D. Nev. 1994).
Boilerplate–The question is boilerplate in form, requiring reference back to preceding questions, introductions, etc., thus, making the question oppressive, burdensome, ambiguous, and unintelligible. See Alpine Mutual Water Co. v. Super. Ct., 259 Cal. App. 2d 45, 66 Cal. Rptr. 250 (Cal. App. 2d 1968). “Boilerplate and generalized objections are inadequate and tantamount to no objection at all.” Partner Weekly, LLC v. Viable Mktg. Corp., WL 1577486, at *2 (D. Nev. Apr. 17, 2014) (Ferenbach, M.J.) (citing Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal.1999)). See Rule 34.
Boilerplate general objections, even if made out of “an abundance of caution,” are no longer allowed under the Federal Rules. FRCP 34; See, e.g., Fischer v. Forrest, No. 14 Civ. 01304, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017) (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).); Liguria Foods, Inc. v. Griffith Labs, Inc., No. 14 Civ. 3041, 2017 WL 976626 (N.D. Iowa Mar. 14, 2017) (Using “boilerplate” objections to discovery in any case places counsel and their clients at risk for substantial sanctions.) By creating meaningful disincentives to the use of boilerplate objections, courts are using the Rule 34 amendments to strike at the core of the culture of discovery paranoia that has made boilerplate objections so pervasive. The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests, The Sedona Conference Journal (2018).
Ambiguous/Speculation–The question is oppressive and burdensome because it is vague, ambiguous, and unintelligible so as to make a response impossible without speculation. US v. Renault, Inc., 27 F.R.D. 23, 29 (S.D. N.Y. 1960).
Equally Available Information–The question seeks information which is available to all parties equally, and is therefore oppressive and burdensome to Plaintiff/Defendant. Pantzalas v. Super. Ct., 272 Cal. App. 2d 499, 503, 77 Cal. Rptr 354 (Cal. App. 2d 1969); but see F.D.I.C. v. Red Hot Corner, LLC, No. 2:11-CV-01283-GMN, 2013 WL 1758759, at *2 (D. Nev. Apr. 23, 2013) (Objecting party must still prove that the request is unduly burdensome. “These general objections do not provide sufficient detail regarding the time, money, and procedures required to produce the requested information and are mere unsupported allegations. The objections are therefore overruled and stricken”). On the other hand, the party propounding the discovery must show that publically available court dockets and filings cannot readily “be obtained from some other source that is more convenient, less burdensome, or less expensive,” see FED. R. CIV. P. 26(b)(2)(C)(i), like the internet. Rule 26(b)(2)(C) states that, “on its own, the court must limit” the extent of discovery allowed by the rules if “the burden or expense of the proposed discovery outweighs its likely benefit.”
Trade Secret–The question calls for the disclosure of a trade secret not essential to the proper ________ (defense or prosecution) of this action. Hartley Pen Co. v. U.S. Dist. Court, 287 F.2d 324, 330 (9th Cir. 1961) (“disclosure of trade secrets will be required only where such disclosure is relevant and necessary to the prosecution or defense of a particular case); Intl. Nickel Co. v. Ford Motor Co., 15 F.R.D. 392, 394 (S.D. N.Y. 1954); See also NRS 49.325.
General–The question seeks information which is protected from disclosure by the attorney work product privilege. Wardleigh v. Second Jud. Dist. Ct., 111 Nev. 345, 357, 891 P.2d 1180, 1188 (1995). Whitehead v. Nevada Com’n on Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1993).
Amer. Casualty v. Hotel and Restaurant Employees and Bartenders Intl. Union Welfare Fund, Discovery Commissioner Opinion #7, pp.16-17 (July, 1990); but see Soeder v. Gen. Dynamics Corp., 90 F.R.D. 253, 255 (D. Nev. 1980) (in-house counsel’s report which is prepared in the ordinary course of business and not in anticipation of litigation, may be discoverable); Navajo Nation v. Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)(“A party is entitled to discovery of attorney work-product only if the requesting party demonstrates that the requested information was not available from any other source.” Citing Holmgren v. State Farm Mutual Automobile Ins. Co., 976 F.2d 573, 576 (9th Cir.1992)).
“The test for determining whether materials were prepared in anticipation of litigation is “‘whether in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.’” U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-01588-LRH, 2014 WL 4987418, at *3 (D. Nev. Oct. 6, 2014) (quoting E.E.O.C. v. International Profit Associates, Inc., 206 F.R.D. 215, 220 (N.D. Ill. 2002)).
Analysis of Records–The question seeks to invade Plaintiff/Defendant’s counsel’s work product privilege in that it calls for an analysis of written data. See Kaiser Found. Hosp. v. Super. Ct., 275 Cal. App. 2d 801, 804, 80 Cal. Rptr. 263, 265 (Cal. App. 2d 1969).
Seeks Testimony of Non-Party Witness–The question seeks to ascertain the anticipated testimony of witnesses who are not “experts” and as such violates the attorney work product privilege. City of Long Beach v. Super. Ct., 64 Cal. App. 3d 65, 73, 134 Cal. Rptr. 468 (Cal. App. 2d 1976).
Interviews At Attorney’s Direction—The question seeks to ascertain the content of interviews obtained at the direction of attorney after the date the complaint was filed. U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-01588-LRH, 2014 WL 4987418, at *4 (D. Nev. Oct. 6, 2014) (citing E.E.O. C. v. International Profit Associates, Inc., 206 F.R.D. 215, 220 (N.D. Ill. 2002)).
Seeks Trial Secrets–The question seeks to ascertain all facts or other data which Plaintiff/Defendant intends to offer at trial and, as such, is violative of the attorney work product privilege. IBP, Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 322 (D. Kan. 1998).
Compilation of Information–The question seeks to invade Plaintiff/Defendant’s counsel’s work product privilege in that it seeks a compilation of data from records which are equally available to all parties. Leonia Amusement Corp. v. Lowe’s Inc., 18 F.R.D. 503, 507 (S.D. N.Y. 1955)
Seeks Plaintiff/Defendant’s Interpretation of Information–The question seeks Plaintiff/Defendant’s interpretation of data presented or referred to and, as such, the question is argumentative, oppressive, and invades the attorney work product privilege. Sheets v. Super. Ct., 257 Cal. App. 2d 1, 9-11, 64 Cal. Rptr. 753 (Cal. App. 2d 1967).
Thought Processes–The question invades Plaintiff/Defendant’s counsel’s work product privilege in that it seeks to obtain information through counsel’s mental impressions, conclusions, opinions or legal theories. U.S. E.E.O.C. v. Pioneer Hotel, Inc., No. 2:11-CV-01588-LRH, 2014 WL 4987418, at *4 (D. Nev. Oct. 6, 2014); Rumac, Inc. v. Bottomley, 143 Cal. App. 3d 810, 812, 192 Cal. Rptr. 104 (Cal. App. 4th 1983).
ATTORNEY-CLIENT PRIVILEGE Objection. The request seeks information subject to the attorney-client privilege. The attorney-client privilege is broadly construed, and extends to “factual information” and “legal advice.”
“Parties may not obtain discovery of privileged information, where the privilege has been properly protected and not waived.” Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001) (citing NRCP 26 (b)(1); Tidvall v. Eighth Judicial Dist. Ct. ex rel. County of Clark, 91 Nev. 520, 539 P.2d 456 (1975). However, privileges are narrowly construed. DR Partners v. Bd. of County Comm’s., 116 Nev.Adv.Op. 72, 6 P.3d 465 (2000). Ashokan v. State Dept. of Ins., 109 Nev. 662, 856 P.2d 244 (1993). The burden of establishing that a privilege exists is on the party claiming the privilege. See e.g., 6 Moore’s Federal Practice, § 26.47 (3d ed. 1997); Roesberg v. Johns-Manville Corp., 85 F.R.D. 292 (E.D.Pa. 1980); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir. 1984)).
General–Attorney-Client privilege protects disclosure of the information sought. Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987). Brown v. Super. Ct., 218 Cal. App. 2d 430, 32 Cal. Rptr. 527 (Cal. App. 3d 1963). NRS 49.095.
Amer. Casualty v. Hotel and Restaurant Employees and Bartenders Intl. Union Welfare Fund, Discovery Commissioner Opinion #7, p.7 (July, 1990).
Moyns v. Creviston, Discovery Commissioner Opinion #1, p.2 (June, 1988).
Objecting party must prepare a privilege log consistent with Alboum v. Koe, M.D., et al., Discovery Commissioner Opinion #10 (November 2001).
“The Ninth Circuit has adopted Dean Wigmore’s articulation of the elements of the attorney-client privilege: (1) where legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are, at that instance, permanently protected, (7) from disclosure by the client or by the legal advisor, and (8) unless the protection is waived. In re: Fischel, 557 F.2d 209, 211 (9th Cir. 1977); Admiral Insurance Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1492 (9th Cir. 1989).” Harter v. CPS Security (USA), Inc., 2013 WL 3108947, *4–5 (D. Nev. 2013).
OBJECTIONS TO FORM OF THE QUESTION
Vague/Ambiguous–The question is vague, ambiguous, and unintelligible so as to make a response impossible without speculation as to the meaning of the question in that…
Sattari v. Citi Mortgage, No. 2:09-CV-00769, 2010 WL 4782133, at *2 (D. Nev. Nov. 17, 2010) (An interrogatory should consist of a brief, simple, direct and unambiguous question. Hilt v. SFC Inc., 170 F.R.D. 182, 187 (D. Kan. 1997)); Tsangarakis v. Panama Steamship Co., 41 F.R.D. 219 (E.D. Pa. 1966).
Opinion Conclusion–The question seeks Plaintiff/Defendant’s opinion of conclusion without establishing a proper foundation. An interrogatory is not objectionable because it asks for an opinion or contention that relates to fact or the application of law to fact but the Court may order that it not be answered until discovery is completed. Rule 33; F.T.C. v. Ivy Capital, Inc., No. 2:11-CV-00283-JCM, 2012 WL 1883507, at *5 (D. Nev. May 22, 2012).
Argumentative— Objection. This discovery request as phrased is argumentative. It requires the adoption of an assumption, which is improper.
Calls for Expert Opinion of Lay Witness–The question calls for a professional opinion from a lay witness; consequently the question is oppressive, harassing, and without a foundational showing of competency.
Asked and Answered— Objection. This discovery request has, in substance, been previously propounded in Interrogatory No. __. Professional Career Colleges v. Superior Court, 207 Cal.App.3d 490, 493494, 255 Cal.Rptr. 5, 7-8 (1989).
Subparts–Objection. Compound and conjunctive. This interrogatory contains [NUMBER] discrete subparts, which count against the [NUMBER] per party limit as stated in [RULE]. See New Amsterdam Project Management Humanitarian Foundation v. Laughrin, 2009 WL 102816 (N.D. Cal. 2009); White v. Cinemark USA, Inc., 2005 WL 3881658 (E.D. Cal. 2005).
Vague, Ambiguous, and Overbroad–Objection. This Interrogatory is vague, ambiguous, and overbroad [because/in that] [DESCRIBE HOW]. [In responding to this interrogatory, Respondent[s] has interpreted [VAGUE OR AMBIGUOUS TERM] to mean [DEFINITION]].
Objection. This Interrogatory does not adequately define [IDENTIFY TERM THAT IS NOT CLEAR], making it difficult to answer with any specificity. This answering party assumes [TERM] means [DEFINITION] and therefore provides the following answer on that basis:______.
Legal Conclusion — Objection. This Interrogatory calls for a legal conclusion.
Improper Assumption–Objection. This Interrogatory requires the adoption of an assumption [DESCRIBE ASSUMPTION], which is improper.
Speculation–Objection. This Interrogatory calls for speculation as to [DEFINE SPECULATION].
Joint Defense Doctrine–Objection. This Interrogatory seeks information protected from disclosure by the joint defense doctrine.
Common Interest Doctrine–Objection. This Interrogatory seeks information protected from disclosure by the common interest doctrine.
Objection. The request is not proportional to the needs of the case because:
- the information requested is not important to the present action;
- the amount in controversy does not justify the expense required to comply with the discovery request;
- the requesting party has equal/similar access to relevant information;
- the requesting party is not burdened/disadvantaged by limited resources;
- the resources of the parties are similar and to force the expense associated with the proposed discovery on the producing party would impose an undue burden on that party;
- the proposed discovery is not important in resolving the issues in the action; or
- the burden or expense of the proposed discovery outweighs its likely benefit.
“This discovery request is not proportional to the needs of the case considering that the burden and expense of the requested discovery outweighs its likely benefit, and, as such, the producing party has limited its search to [a specified time frame] as maintained by [the appropriate custodians or department].” https://www.jeremywrichter.com/2017/10/30/objecting-discovery-requests-frcp-34/. For further treatment of proportionality, see this post.
MOTION TO COMPEL
Federal Rule of Civil Procedure 26(b)(1) governs discovery’s scope and limits. It provides for two forms of discovery: party-controlled discovery and court-controlled discovery. The first sentence of Rule 26(b)(1) governs party-controlled discovery. It states that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). The second sentence of Rule 26(b)(1) governs court-controlled discovery. It states that “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Id. While parties are expected to conduct party-controlled discovery independently, and only request judicial intervention to end discovery disputes, court-controlled discovery begins with judicial intervention.
Discovery, however, has limits. The Supreme Court has long mandated that trial courts should resolve civil matters fairly but without undue cost. Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962). This directive is echoed by Rule 26(b)(2)(C), under which the court, “on its own, must” limit the frequency and extent of discovery if the discovery sought is “unreasonably cumulative or duplicative,” can be “obtained from some other source that is more convenient, less burdensome, or less expensive,” is untimely, or if “the burden or expense of the proposed discovery outweighs its likely benefit.”
If a party resists discovery, the requesting party may file a motion to compel. See FED. R. CIV. P. 37(a)(1). A facially valid motion to compel has two components. First, the motion must certify that the movant has “in good faith conferred or attempted to confer” with the party resisting discovery. FED. R. CIV. P. 37(a)(1); LR 26-7(b); ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). Second, the motion must include a threshold showing that the information in controversy is relevant and discoverable under Rule 26. See Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978)).
If the requesting party makes these showings, the resisting party carries a “heavy burden” of demonstrating why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). The resisting party must specifically detail the reasons why each request is improper. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472–73 (9th Cir. 1992) (“Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”). Boilerplate, generalized objections are inadequate and tantamount to making no objection at all. Id.
In addition to the Federal Rules, discovery motions are governed by Local Rule 26-7(a), which states that “[a]ll motions to compel discovery . . . shall set forth in full the text of the discovery originally sought and the responses thereto, if any.” The District Court for Nevada court routinely denies motions to compel that do not comply with this rule. See, e.g., Plaintiffs Ins. Co. v. Peter MarioBalle, D.C., No. 2:10–cv–02205–APG–NJK, 2013 WL 5323968, at *4 (D. Nev. Sept. 20, 2013) (“The Court cannot determine that particular responses to requests for production were improper without knowing what request was made or what response was given.”).