Subject to and Without Waiving These Objections

I frequently receive responses to written discovery that feature a slew of objections, followed by some variant of “subject to and without waiving these objections” and then some form of answer.  By responding like this, the objection is waived and the answer stands as drafted.

In Estridge v. Target Corp. “Defendant has asserted various objections and then proceeded to answer the interrogatories and responded to the requests for production ‘subject to and without waiving’ its objections.”[1]  “Although this practice has become commonplace, … whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.”[2]  Objections like this “preserve nothing and serve only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.”[3]

In Herrera v. AllianceOne Receivable Mgmt. the defendant’s responses to a request for production “included a conditional response in its objection, which leaves Plaintiffs and the Court guessing as to whether all responsive documents will be produced. Conditional responses and/or the purported reservation of rights by a responding party are improper and ultimately have the effect of waiving the objections to the discovery requests.”[4]  “Providing conditional responses to discovery requests is improper, the objections are deemed waived, and the response to the discovery request stands.”

In Sprint Communs. Co., L.P. v. Comcast Cable Communs., LLC Sprint’s responses to three requests for production “concluded with the statement, ‘[s]ubject to and without waiver of the foregoing objections … Sprint will produce non-privileged responsive documents within its custody and control.”  This response left the court “wondering whether Sprint planned to withhold certain documents based on its objections.”  Spring could have appropriately replied “by objecting to a specified part of the request (i.e., only the part seeking privileged information) and producing documents requested in the rest of the request.”[5]

What do you do?  Specify the part of the discovery request that is objectionable, why it is objectionable, and then respond within those parameters.  For example:

Request for Production:
Please produce all documentation of all slip and falls at [retail chain].

Defendant objects to this request as over broad and exceeding the proportional needs of this case.  If limited to 1) the store where this fall occurred, 2) the general area in the store where this fall occurred; 3) in the three years preceding this fall; and 4) excluding trip and falls, please see [insert bates range].

Why do I believe this response is proper?  It specifically specifies the objection and informs both the court and opposing parties the exact scope of the response.  This should leave no doubt that the responsive documents to this scope have been produced and the responding party objects to the remainder of the request for production.  The parties will probably then debate whether that scope is adequate.

[1] No. 11-61490-CIV, 2012 U.S. Dist. LEXIS 21593, 2012 WL 527051 (S.D. Fla. Feb. 16, 2012).
[2] Id. (citing a slew of other 11th Circuit district court orders).
[3] Id. (quoting Consumer Elecs. Ass’n v. Compras and Buys Magazine, Inc., No. 08-21085-Civ, 2008 U.S. Dist. LEXIS 80465, 2008 WL 4327253 (S.D. Fla. Sept. 18, 2008)).
[4] No. 14-cv-1844, 2016 U.S. Dist. LEXIS 40474 (S.D. Cal. Mar. 28, 2016).
[5] No. 11-2684, 2014 U.S. Dist. LEXIS 53971, 2014 WL 1569963 (D. Kan. Apr. 18, 2014).