Magistrate Judge Peck
Magistrate Judge Peck (Carmen Natale/ALM)

A federal magistrate judge in Manhattan is telling lawyers to get up to par on 15-month-old rule changes designed to speed up responses to discovery requests, clarify objections to requests and eliminate the confusion that slows down production.

Southern District Magistrate Judge Andrew Peck, a leading figure in the development of e-discovery, said too many lawyers are not adhering to Federal Rule of Civil Procedure 34, which was amended effective Dec. 1, 2015.

“It is time, once again, to issue a discovery wake-up call to the bar in this district,” Peck wrote in Fischer v. Forrest. The case is a Lanham Act trademark infringement case, in which he issued a report and recommendation on motions to dismiss in January.

Peck said that Rule 34 requires a litigator to state grounds for objections with specificity; state whether any responsive materials are being withheld on the basis of that objection; and specify the time for production—and, if it’s a rolling production, state when production will begin and end.

“Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes,” he said.

The 2015 Advisory Committee Notes on Rule 34(b)(2)(C) said requiring lawyers to state whether anything is being withheld based on a particular objection “should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.”

Peck is handling discovery in two related cases brought by James Fischer, the inventor of “Fischer’s Bee-Quick,” a product for facilitating honey harvesting. Fischer sued the principals of Brushy Mountain Bee Farm Inc., and the company, which was an authorized dealer of Bee-Quick permitted to use Fischer’s copyrighted works on their sales website and catalog.

But Fischer said the defendants began in 2011 to market “Natural Honey Harvester,” an unauthorized knock-off Bee-Quick.

Peck said that “despite the clarity of the no-longer-new 2015 amendments, this court still sees too many non-compliant Rule 34 responses.”

Here, the defendants made 17 “general objections” in their most recent Rule 34 response, leading him to say, “Let us count the ways the defendants have violated the rules.”

For example, a response to two requests stated they were “overly broad and unduly burdensome”—phrases the judge called “meaningless boilerplate.”

“Why is it burdensome? How is it overly broad?” Peck stated. “This language tells the court nothing.”

Copying the presiding judge in the cases, Paul Engelmayer, Peck said that going forward, anyone who doesn’t comply with Rule 34′s requirements on specificity and clearly indicate whether material is being withheld based on the objection “will be deemed a waiver of all objections (except as to privilege).”

Seth Hudson of Clements Bernard Walker is counsel for the defendants.

Oscar Michelen of Cuomo LLC represents the plaintiffs.

The attorneys did not return phone calls and emails seeking comment.

A federal magistrate judge in Manhattan is telling lawyers to get up to par on 15-month-old rule changes designed to speed up responses to discovery requests, clarify objections to requests and eliminate the confusion that slows down production.

Southern District Magistrate Judge Andrew Peck, a leading figure in the development of e-discovery, said too many lawyers are not adhering to Federal Rule of Civil Procedure 34 , which was amended effective Dec. 1, 2015.

“It is time, once again, to issue a discovery wake-up call to the bar in this district,” Peck wrote in Fischer v. Forrest. The case is a Lanham Act trademark infringement case, in which he issued a report and recommendation on motions to dismiss in January.

Peck said that Rule 34 requires a litigator to state grounds for objections with specificity; state whether any responsive materials are being withheld on the basis of that objection; and specify the time for production—and, if it’s a rolling production, state when production will begin and end.

“Most lawyers who have not changed their ‘form file’ violate one or more (and often all three) of these changes,” he said.

The 2015 Advisory Committee Notes on Rule 34(b)(2)(C) said requiring lawyers to state whether anything is being withheld based on a particular objection “should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.”

Peck is handling discovery in two related cases brought by James Fischer, the inventor of “Fischer’s Bee-Quick,” a product for facilitating honey harvesting. Fischer sued the principals of Brushy Mountain Bee Farm Inc., and the company, which was an authorized dealer of Bee-Quick permitted to use Fischer’s copyrighted works on their sales website and catalog.

But Fischer said the defendants began in 2011 to market “Natural Honey Harvester,” an unauthorized knock-off Bee-Quick.

Peck said that “despite the clarity of the no-longer-new 2015 amendments, this court still sees too many non-compliant Rule 34 responses.”

Here, the defendants made 17 “general objections” in their most recent Rule 34 response, leading him to say, “Let us count the ways the defendants have violated the rules.”

For example, a response to two requests stated they were “overly broad and unduly burdensome”—phrases the judge called “meaningless boilerplate.”

“Why is it burdensome? How is it overly broad?” Peck stated. “This language tells the court nothing.”

Copying the presiding judge in the cases, Paul Engelmayer, Peck said that going forward, anyone who doesn’t comply with Rule 34′s requirements on specificity and clearly indicate whether material is being withheld based on the objection “will be deemed a waiver of all objections (except as to privilege).”

Seth Hudson of Clements Bernard Walker is counsel for the defendants.

Oscar Michelen of Cuomo LLC represents the plaintiffs.

The attorneys did not return phone calls and emails seeking comment.