The producing party in a discovery request can be tardy producing documents, while making numerous generalized objections in a response, and still not have waived the party’s right to valid objections under Fed. R. Civ. P. 26 or Fed. R. Civ. P. 34. The complaint originally was filed due to the plaintiff seeking to purchase Wakefield Commons shopping center from co-defendants, NP/I & G Wakefield Commons, LLC (“Wakefield Commons”) and Centro NP, LLC (“Centro”), only to have the anchor tenant go out of business less than a week after the ink on the contract had dried. The plaintiff filed suit against Wakefield Commons and the property manager, Centro, for knowingly misrepresenting the financial condition of the anchor tenant, fraud, and negligent misrepresentation, among other claims.

After filing suit, the plaintiff and defendants proposed a Discovery Plan providing that documents containing confidential information would be set out in a protective order and that the two parties would agree upon a protocol for production of ESI, which was approved by the court on April 3, 2012. The plaintiff and defendants never reached an agreement on protocol for producing ESI prior to plaintiff’s request for production of documents in native form from Centro, on May 31, 2012. After attempting to extend their response to August 4, 2012, a Saturday, and the court only consenting to an extension of July 25, 2012, Centro entered a response on August 6, 2012. This response consisted of identical vague and general objections to each of plaintiff’s 71 production requests. Centro’s response did not include any documents, nor a privilege log, which the parties agreed would be required to log what documents were missing due to being privileged.

On August 14, 2012, following Centro’s tardiness, general objections, and lack of production of documents or a privilege log, the plaintiff filed a consent motion for a protective order with the court. Ten days after the court entered a protective order based on the plaintiff’s motion, Centro produced 500 pages of documents and on October 19, 2012, supplemented that with 120 additional pages. The plaintiff filed the current motion against Centro on December 19, 2012, asserting four challenges: (1) Centro waived all objections due to tardy response; (2) Centro waived objection by claiming non-particularized objections; (3) that Centro should be required to produce ESI in native format; and (4) Centro failed to produce a privilege log. It should be noted that prior to the court looking into the matter, Centro supplemented its production with 24,000 pages in PDF, once learning of the agreed-upon protocol the plaintiff had given co-defendants, Wakefield Commons. Nonetheless, the plaintiff continued with the motion and challenges to Centro’s production.

In court, the magistrate judge recognized that Rules 26 and 34 of the Federal Rules of Procedure do allow for waiver of objection due to untimely response, generalized objections and a party not providing their privilege log. However, the court declined to find a waiver based on Centro’s asserted belief that there was an absence of agreed-upon protocol of ESI and proposed search terms for production. While Centro’s response was late and had generalized objections, it was partly due to there not being a settled protocol for search words; and, once Centro was aware of the agreement made, the party produced ESI according to the protocol and search terms requested. The magistrate judge found that the plaintiff did not show prejudice due to the delay and the non-particularized objections, and also found that the plaintiff did not establish a need for the ESI be in native format, as opposed to PDF. However, the court did determine that Fed. R. Civ. P. 26(b)(5)(A) does require a privilege log and all parties agreed to it in the Discovery Plan; therefore, Centro must provide the plaintiff with a privilege log of all documents withheld due to privilege. No award or court expenses were paid by Centro to the plaintiff.

Tameeka J. Bailey, a Seton Hall University School of Law student (2014), focuses her studies on Intellectual Property and Entertainment Law. She has interned at Marc Anthony Productions and was an investigative intern at the San Diego Alternate Public Defender’s office. Prior to law school, Tameeka received her B.B.A. in Legal Studies in Business from Hofstra University.