Although issued in an antitrust case, In re Urethane Antitrust Litigation, 2008 WL 110896 (D. Kan. Jan. 8, 2008), an opinion by Magistrate Judge Waxse may be relevant to Rule 34 document requests in trade secrets and other litigation wherever filed. In brief, he held that use of the terms “relating to,” “pertaining to,” or “concerning” in such a request can render it objectionable. Do you use those terms in your discovery requests? Don’t we all?
Judge Waxse denied a motion to compel certain parties to produce “[e]ach document concerning your costs of producing, transporting and selling” specified goods. First Request No. 17 (emphasis added). Those parties had objected on the grounds that, in the judge’s words, the request was “overly broad and unduly burdensome on its face because it uses the omnibus phrase ‘each document concerning’ in reference to an extremely broad group of documents.” He held “that a discovery request is overly broad and unduly burdensome on its face if it uses omnibus terms such as ‘relating to,’ ‘pertaining to,’ or ‘concerning’ to modify a general category or broad range of documents or information.” Id. (footnote omitted).
Judge Waxse continued: “[D]espite a valid objection that a request is facially overbroad or unduly burdensome, the responding party still has a duty to respond to the extent the request is not objectionable. Before the Court will require an objecting party to answer, however, the Court must receive some guidance – from either the parties or some other source – as to what portion of the request is reasonably answerable.” Id.(footnote omitted). He concluded that, in the lawsuit before him, “inadequate guidance exists to determine the proper scope of First Request No. 17. The Court therefore sustains [the] facial overbreadth and facial undue burden objections.”