[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In CT Install America, LLC v. Boryszewski, 2025 WL 257127 (E.D. Pa. Jan. 21, 2025), the court wrote that: “Neither side distinguishes between waiver of untimely objections to interrogatories and waiver of untimely objections to RFPs, even though important differences exist in both the applicable rules of civil procedure and the case law construing them.” That doctrine, however, is not universal, and one takeaway from CT Install is to be aware of the principles applicable in the forum jurisdiction.
CT Install’s DIFFERING WAIVER STANDARD
As to interrogatories, the CT Install court wrote: “Rule 33, governing interrogatories, is unequivocal: ‘Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.’” See Fed.R.Civ.P. 33(b)(4).
Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
Fed.R.Civ.P. 33(b)(4).
However: “Unlike Rule 33, Rule 34, governing RFPs, does not address waiver of untimely objections…. Indeed, “[n]otably absent from Rule 34 is an automatic waiver provision as found in Rule 33.” [citation omitted].
Both Rules permit stipulated extensions under Fed.R.Civ.P. 29.
FACTS
In CT Install, defense counsel emailed plaintiffs’ counsel noting that discovery responses were overdue and asked when they would be served. Plaintiff’s counsel “responded that day that Plaintiffs would respond to the Discovery Requests by October 11, 2024.” However, before that October 11th milestone, but after the due date, Plaintiffs served numerosity objections to defendnats’ interrogatories. Plaintiffs also objected to the majority of defendants’ requests for production. Defendants moved to compel.
INTERROGATORIES
In CT Install, the court held that plaintiffs’ objections to defendants’ interrogatories were waived unless good cause could be shown. Plaintiffs asserted that defendants had agreed to an extension of time. The court cited precedent that “patience in agreeing to wait for answers beyond the [response] period cannot be considered as a stay or an extension of the time for filing objections….” It held that plaintiffs waived the objections.
The court then provided some relief, writing that it would not “rubber stamp” the discovery requests:
Although Plaintiff’s waiver of its objections affords the Court the authority to mandate “complete compliance” with the discovery at issue, “it is advisable that it examine the discovery sought.”
CT Install America, LLC v. Boryszewski, 2025 WL 257127 (E.D. Pa. Jan. 21, 2025).
In my words, the “scope of discovery” and its proportionality limit trumped the waiver of objections.
The CT Install court then examined each individual interrogatory. It held that some were permissible and others were not.
REQUESTS FOR PRODUCTION
Starting with the proposition that implicit waiver is not proper under Fed.R.Civ.P. 34, the CT Install court cited precedent that “Rule 34 does not by its terms provide that objections will be deemed waived; rather, a waiver appears to be more in the nature of a sanction for more egregious conduct.”
Turning to the facts presented:
Here, Plaintiff highlights that its conduct does not warrant the “disproportionate sanction” of finding a complete waiver of its objections…. This Court agrees, insofar as the RFPs are concerned. Although Plaintiff disregarded the 30-day deadline to provide responses and objections to the RFPs, it was responsive to Defendants’ inquiries and furnished some objections nine days after the original date to do so and the remaining ones a few days after that. In cases where courts have applied a blanket waiver of objections to RFPs, the nonmovant was often substantially more dilatory than Plaintiff was here.
Id.
As it did with the interrogatories, the CT Install court then reviewed each individual document request. It held that some were permissible and others were not.
ANOTHER VIEW
In Hall v. Sullivan, 231 F.R.D. 468, 472-23 (D. Md. 2005), the Hon. Paul W. Grimm noted that the textual differences between Rule 33 and Rule 34 may cause “understandable” confusion. Judge Grimm wrote:
If one looks at the commentary to Rule 34, however, it is clear that the procedures under Rule 34 were intended to be governed by the same procedures applied under Rule 33. The commentary under Rule 34 states, “The procedure provided in Rule 34 is essentially the same as that in Rule 33 and the discussion in the note appended to that rule is relevant to Rule 34 as well.” Fed.R.Civ.P. 34 advisory committee’s note, 1970 Amend.; Amendment to the Fed. Rules of Civil Procedure, 48 F.R.D. 487, 527 (1970).
Moreover, there are strong policy reasons favoring a requirement that a party raise all existing objections to document production requests with particularity and at the time of answering the request, so that counsel may meet and confer once to try to resolve the objections and, if unsuccessful, present the dispute to the court for prompt resolution. No benefit is achieved by allowing piecemeal objections to producing requested discovery, as this adds unnecessary expense to the parties and unjustified burden on the court. And, while it would be too harsh a result to say that a party that fails to raise a timely and particularized objection should be precluded absolutely from supplementing a discovery response to assert an additional ground not initially raised, the procedure set out in Rule 33(b)(4) wisely creates a presumption that objections not timely stated in an answer are waived, unless the court excuses the failure for good cause. Structuring the rule this way encourages diligence in answering discovery requests while, at the same time, recognizing that the time pressured environment in which “paper discovery” takes place often precludes leisurely reflection in advance of filing an answer. An authoritative commentator has observed “the discovery rules constitute an integrated mechanism and they must all be read in pari materia.” 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2204 (2d ed.1994); See also Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir.1958) (Discovery rules dealing with depositions and subpoenas are in pari materia to Rule 34, dealing with document production).
Further, other courts addressing this issue long have ruled that a failure to raise an objection in an answer to a Rule 34 document production request may constitute waiver.
Hall v. Sullivan, 231 F.R.D. at 473–74 (citations omitted).
Judge Grimm wrote that:
I hold that implicit 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.
Id.
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008); Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530, at *5 (D. Md. July 11, 2022). The Hall Court then enunciated the factors governing a good cause analysis.
Other courts have taken that approach: “I rule that if a party fails to file timely objections to a document request, such failure constitutes a waiver of any objections which a party might have to the request.” Slauenwhite v. Bekum Maschinenfabriken, G.m.b.H., 35 Fed. R. Serv. 2d 975 (D. Mass. 1983). “Any other result would, in my opinion, completely frustrate the time limits contained in the Federal Rules and give a license to litigants to ignore the time limits for discovery without any adverse consequences.” Id.
If a party fails to file timely objections to a document request, such failure constitutes a waiver of any objections which a party might have to the request.
Slauenwhite v. Bekum Maschinenfabriken, G.m.b.H., 35 Fed. R. Serv. 2d 975 (D. Mass. 1983).
“It is within the court’s discretion to determine that [i]f the responding party fails to timely object [to a Rule 34 request] or state the reason for the objection, he or she may be held to have waived any objections.” Brenford Env’t Sys., L.P. v. Pipeliners of Puerto Rico, Inc., 269 F.R.D. 143, 146 (D.P.R. 2010)(cleaned up).
MY 2 CENTS
I think Hall is the better approach. Rule 34(b)(2)(A) specifies the “time to respond” to a document request. The producing party “must” respond in writing within 30 days. Under Rule 34(b)(2)(B), the response “must” state either that inspection will be permitted “or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(C) provides that: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” In comparison to “must,” as relating to ESI, Rule 34(b)(2)(E) provides that a party “may” object to the requested form of production.
The Advisory Committee Note to the 2015 Amendment states that: “Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.” [emphasis added].
CONCLUSION
A litigant should be aware of the local decisional authorities regarding Rule 34. One takeaway is that a party requesting an extension of time to respond to interrogatories may wish to make clear that the extension applies to both answers and objections. While, under the CT Install approach, that may be less important as to document requests, it may be prudent to do so in that context also and there are jurisdictional differences to consider.
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