Friday, July 20, 2012

Objections to Written Discovery Requests: Unnecessarily Burdensome

     Objections that a discovery request is unduly burdensome, oppressive, or unreasonably duplicative are often valid, but opposing counsel will probably initially assume this is merely a "boilerplate objection."

     All discovery is subject to the limitations imposed by C.R.C.P. 26(b)(2)(F) for cases filed in Colorado state courts, and by F.R.C.P. 26(b)(2)(C) for cases filed in United States District Court for the District of Colorado. Both the State and Federal Rules require that the court must limit the frequency or extent of discovery if it determines that:

      (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
      (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action;
      (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues; and
      (iv) whether, because of the number of parties and their alignment with respect to the underlying claims and defenses, the proposed discovery is reasonable.

     If you decide to object based on subjective grounds such as unnecessarily burdensome, oppressive, or unreasonably duplicative, the specific discovery response should state what less-burdensome scope is appropriate. Your written response should clearly convey how the objection is being used to constrain the scope of the party’s document production, or the information being provided in response to an interrogatory. By using this approach, you will comply with the Rules’ requirement that objections be stated in response to each specific discovery request, and you will avoid a lack of clarity and reduce the likelihood that the court will view your objection as invalid. Bear in mind that while an objection on the grounds of unnecessarily burdensome is often valid, it is rarely a basis for not providing a response.  (Subject to such objection and without waiving same, Plaintiff responds as follows…)  Instead, this objection is normally useful to protect the responding party when they are making only a partial response to the request.

     Following are some suggested ways in which you may state your objection. Be sure to tailor the objection to your specific discovery response and the facts of your case:

     -  It would be unduly burdensome, oppressive, and unreasonably duplicative to again produce the requested information. [Provide a brief description of when/in what form the same information has already been produced.]

     -  This discovery request is so broad and unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive. To comply with the request would be an undue burden and expense on the [Producing Party]. The request is calculated to annoy and harass Plaintiff. [Expound on time, scope, burden and expense in your response.] 

     -  Objection is made to the production request because the discovery sought is obtainable from some other source that is more convenient, less burdensome, and less expensive. [Consider doing the math to support this objection; provide information about the source that is less burdensome.]

     -  Objection is made to the production request because the burden and expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.  [Explain specifically why this is so].

     -  Objection on the basis and to the extent that the information requested requires the production of documents that are in the possession or control of a third party and are not in the possession or control of [Responding party]. [Responding party] further objects to the production of documents that are already in the possession of [Requesting party] or subject to his/her control as such production would be unduly burdensome to [Responding party].

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