United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the renewed motion of defendant
Menard, Inc., to strike plaintiff's objections to
defendant's written discovery. Plaintiff has responded in
opposition, and the issues are fully briefed.
February 12, 2016, defendant served on plaintiff its first
set of interrogatories and requests for production of
documents. Plaintiff requested an extension of time to
respond to defendant's written discovery, which was
granted by the state court in which the case was then
pending. Accordingly, plaintiff's responses were due on
April 15, 2016. On May 11, 2016, after receiving no responses
to defendant's discovery requests, defense counsel
telephoned plaintiff's counsel in an effort to resolve
the issue without court involvement. That contact failed to
prompt plaintiff's discovery responses.
20, 2016, defendant filed a motion for sanctions, or in the
alternative, a motion to compel against plaintiff in the
state court proceeding. On May 27, 2016, plaintiff served his
responses, including objections, to the discovery. On June 3,
2016, defendant withdrew its motion for sanctions and moved
instead to strike plaintiff's objections to the discovery
as untimely. On June 10, 2016, before the state court had the
opportunity to hear the motion, defendant removed the case to
this Court. The defendant now renews its motion to strike
plaintiff's objections to its discovery.
argues that plaintiff waived all objections to the
interrogatories and requests for production of documents by
failing to assert them in a timely manner. See
Fed.R.Civ.P. 33(b)(4) and 34(b)(2). Thus, defendant asserts
that the objections should be stricken and plaintiff should
be required to provide full and complete answers and
responses to the discovery requests.
Rule of Civil Procedure 33(b)(4) provides that “[a]ll
grounds for an objection to an interrogatory must be stated
with specificity.” “Any ground not stated in a
timely objection is waived unless the court, for good cause,
excuses the failure.” Fed.R.Civ.P. 33(b)(4); see
also BancorpSouth Bank v. RWM Props. II, LLC, No.
4:11-CV-373 (JCH), 2012 WL 3939972, at *1 (E.D. Mo. Sept. 10,
2012) (“Even an objection that the information sought
is privileged is waived by a failure to make it within the
proper time limits.”). Although Rules 33(b)(4) and
34(b)(2) contain different language describing the means for
objecting to interrogatories and requests for production,
“courts uniformly conclude that an objection [to
either] may be waived if it is not timely raised and good
cause for the delay is not shown.” Talevski v.
Carter, No. 2:05-CV-184, 2007 WL 1797634, at *3 (N.D.
Ind. 2007); e.g., Fonville v. D.C., 230
F.R.D. 38, 42 (D.D.C. 2005) (“Unlike Rule 33, Rule 34
does not contain an automatic waiver provision as a
consequence of failing to file a timely objection, but there
is no reason to interpret the two rules differently.”);
see also BancorpSouth Bank, 2012 WL 3939972, at *1
(summarizing Rule 33(b)(4) and stating that “[t]he same
waiver rule applies under Rule 34); Horace Mann Ins. Co.
v. Nationwide Mut. Ins. Co., 238 F.R.D. 536, 538 (D.
Conn. 2006) (“[C]ourts have reasoned that a Rule
33(b)(4) type waiver should be implied into all rules
involving the use of the various discovery
explanation for his late responses is that his counsel
mistakenly believed that the discovery responses had been
submitted before the April 15 deadline and was not aware that
a problem existed until he was contacted by defense counsel
on May 11. Nevertheless, plaintiff concedes that no
certificate of service was filed with the state court showing
compliance with the April 15 deadline. Additionally,
plaintiff provides no explanation for failing to
“re-send” the discovery responses after being
told by defense counsel that they had not been received.
reminded by d to the discovery requests after counsels'
May 10 telephone conversation, when he concedes notice of his
failure to timely respond. The Court finds that plaintiff has
not shown good cause to excuse his failure to make timely
objections to the discovery. Therefore, the objections are
finding that plaintiff has waived any objections to
defendant's discovery requests, the Court recognizes that
some courts have expressed concern that a “waiver of
privilege is a serious sanction most suitable for cases of
unjustified delay, inexcusable conduct, and bad faith.”
Ayers v. Cont'l Cas. Co., 240 F.R.D. 216, 223
(N.D.W.V. 2007) (quoting Carlson v. Freightliner
LLC, 226 F.R.D. 343, 363 (D. Neb. 2004)). Assuming,
arguendo, that plaintiff's conduct does not fall
within one of the aforementioned categories, courts have
found objections based on privilege or work product
protection nonetheless waived when a party fails to provide a
privilege log in support of its untimely objections.
Cargill, Inc. v. Ron Burge Trucking, Inc., 284
F.R.D. 421, 425 (D. Minn. 2012); see Horace Mann
Ins., 238 F.R.D. at 538 (finding that “aside from
being late, plaintiff's response also failed to
adequately perfect its claim of privilege” by producing
a privilege log); 8B Charles Alan Wright, et al., Federal
Practice and Procedure § 2173 (3d ed. 2016)
(“[F]ailure to comply with [Rule 26(b)(5)(A)] can
result in waiver of the privilege objection. Even before Rule
26(b)(5)(A) was adopted in 1993, courts found that privilege
objections to interrogatories were waived unless properly
asserted attorney-client privilege and work product
protection in his objections to Interrogatory No. 22 and
Requests for Product Nos. 11 and 15. [Doc. #38]. Rule
26(b)(5) provides that when a party withholds information on
the basis of a privilege or protection, the party must
“expressly make the claim” and “describe
the nature of the documents, communications, or tangible
things not produced or disclosed . . . in a manner that,
without revealing information itself privileged or protected,
will enable other parties to assess the claim.”
Fed.R.Civ.P. 26(b)(5)(A). Courts have consistently
interpreted this requirement to mean that the party must
produce a document index or privilege log. Jiang v.
Porter, No. 4:15-CV-1008 (CEJ), 2016 WL 3015163, at *1
(E.D. Mo. May 26, 2016) (citing Jacobson v. Metro. St.
Louis Sewer Dist., No. 4:14-CV-1333 (AGF), 2015 WL
5330428, at *3 (E.D. Mo. Sept. 14, 2015)). Boilerplate
objections to discovery requests, including for documents,
are inappropriate. Nye v. Hartford Accident & Indem.
Co., No. 12-5028-JLV, 2013 WL 3107492, at *8 (D.S.D.
June 18, 2013); St. Paul Reinsurance Co., Ltd. v.
Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa
did not serve a duly signed privilege log meeting the
requirements of Rule 26(b)(5)(A) with his late assertions of
privilege in response to defendant's discovery requests.
Thus, plaintiff's failure to timely produce a privilege
log in support of his untimely objections supports the
Court's finding that plaintiff has waived any objections
to discovery, including assertions of
privilege. See Horace Mann Ins., 238 F.R.D.
at 538 (“Therefore, in light of the untimeliness of
plaintiff's objections and the fact that the tardy
response did not include a privilege log the court finds that
all of plaintiff's objections are waived.”)
IT IS HEREBY ORDERED that the renewed motion of defendant
Menard, Inc. to strike plaintiff's objections [Doc. #13]
FURTHER ORDERED that plaintiff shall have until December 27,
2016, to answer defendant's first set of interrogatories
and to produce all documents responsive to ...