For more than four decades, Federal Rule of Civil Procedure 34 has required litigants to “describe with reasonable particularity” the information sought in discovery requests. Although the “reasonable particularity” standard for drafting requests is not new, recent case law addressing Rule 34 objections and responses in the wake of the 2015 amendments to the Rules has highlighted the problem caused by poorly drafted requests. In November, the Sedona Conference published its Primer on Crafting eDiscovery Requests with Reasonable Particularity for public comment (“Rule 34(b)(1) Primer”)1. The Rule 34(b)(1) Primer discusses the history of the Rule 34 standard, evolving case law addressing the standard, and practice points for drafting instructions, definitions and requests.
New York courts are trending towards a strict no-tolerance approach in disposing of cases for willful discovery violations. Under CPLR 3126(3), a party may seek to strike its opponent’s pleading for a willful failure to comply with discovery obligations. While this is a drastic remedy, litigants should consider whether to pursue it more aggressively. In a number of recent decisions, New York trial and appellate courts have taken a no-tolerance approach to bad behavior in discovery and have invoked CPLR 3126(3) to strike pleadings. Court are more and more often heeding the directive of the Court of Appeals that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously” and “disregard of deadlines should not and will not be tolerated.” Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 5 N.Y.3d 514, 521 (N.Y. 2005).
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