Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the week of April 15-21. Here’s what’s happening.
The problem with general objections
On the ACEDS Blog, Kelly Twigger analyzes Bocock v. Innovate Corp. as a case she says is a prime example of the importance of specificity in responses to discovery requests because of the amendments to Federal Rule of Civil Procedure 34 made in 2015.
In this case, plaintiffs were served interrogatories and requests for production on May 5, 2023. The plaintiffs were granted a 15-day extension by defendants on June 5. The plaintiffs responded on the day of the extended deadline, June 20, but with seven pages of “General Objections” that lacked a specific or substantive response to even one of the interrogatories or requests for production.
Two days later, defendants insisted that the plaintiffs provide proper responses by June 28, noting that by failing to provide specific responses and objections, they would waive all objections to the discovery. The next day, plaintiffs said they were “working on the responses,” would “serve the plaintiffs’ respective discovery responses on a rolling basis – most likely starting next week,” and proposed a meet and confer for July 5 or 6. Defendants replied 90 minutes later, indicating their availability to meet, but plaintiffs did not respond.
On July 12, defendants filed a motion to compel. The plaintiffs opposed the motion but didn’t attempt to justify their failure to provide discovery. The court heard arguments on the motion on December 4.
Plaintiffs argued they were working to collect responses to the discovery both prior to and after the motion was filed. The court found that argument was without merit: The plaintiffs requested and were granted a 15-day extension to serve their discovery responses. The plaintiffs could have asked for a further extension to provide proper responses, either from the defendants or by filing an application with the court, but they did neither.
The plaintiffs also described their “delay” in providing discovery as “modest, isolated, and non-prejudicial.” The court disagreed: “A failure to provide discovery for more than five months cannot be characterized as a mere delay.”
The motion to compel was granted and plaintiffs were given five business days to serve discovery responses. In addition, all objections to the requests were waived, except for objections that the information requested was protected by the attorney-client privilege or work-product doctrine, and defendants were awarded all of their reasonable attorneys’ fees and expenses incurred in connection with the motion.
The chief takeaway from the court’s ruling: As Twigger writes, specificity is not negotiable under Rule 34, so asking for an extension to provide proper responses is better than just ignoring the issue and hoping it will go away. Also by not providing specific examples, the defendant gave up their ability to claim objections to discovery. The case also proves the axiom that failing to plan is planning to fail: When anticipating litigation, an experienced eDiscovery provider can help you organize data and create a discovery plan.
Five more states enact data privacy laws
Doug Austin at eDiscovery Today points out that five states have passed new data privacy laws in 2024, putting the total number of states with similar laws at 17. The five states who’ve passed laws this year: New Jersey, New Hampshire, Kentucky, Maryland, and Nebraska.
Although the laws differ from state-to-state, the main points cover:
- How data controllers must fulfill duties regarding custodians’ assertion of their rights, transparency, purpose specification, data minimization, avoiding secondary use, care, avoiding unlawful discrimination, and sensitive data;
- Requirement of data controllers to conduct a data protection assessment for each of their processing activities involving personal data that present a heightened risk of harm to consumers; and
- Specifics on how a violation of its requirements is defined, who may enforce it and any penalties associated with the violation.
Before these laws take effect, companies in these states will need to update their data retention policies to comply with the law. As we’ve written before, a Data Map can help in instances where data is cross-referenced: For example, data is scheduled to be deleted to comply with privacy laws but is also subject to a litigation hold.
Other recent eDiscovery news and headlines:
- April’s Notable Cases and Events in E-Discovery (Sidley E-Discovery Update)
- Intentional Deletion of Text Messages Leads to Sanctions: eDiscovery Case Law (eDiscovery Today)
- Court Orders Parties to Enter Into ESI Protocol for a Foreign Proceeding (EDRM Blog)
