Overbroad, vague, or ambiguous vs. unduly burdensome, protecting confidential information
by Michael H. Barr, Hon. Myriam J. Altman,
BurtonN. Lipshie & Sharon Stern Gerstman*
i. Overbroad, Vague, or Ambiguous
§26:280 BASIC POINTS
The requester is only entitled to documents that are “material and necessary” to the prosecution or defense of the action. [See Ch 24, All Discovery.] Requests outside that scope are overbroad and thus objectionable. As respondent’s lawyer, complying with (instead of objecting to) overbroad requests means wasted time and effort. Worse, if you comply, you may needlessly surrender documents with damaging information the opposition may use against your client in settlement negotiations.
Vague or ambiguous requests
The request must describe the requested items with “reasonable particularity.” [See §26:64.] Thus, an unreasonably vague or ambiguous request is objectionable. Respondent’s counsel must be careful not to unintentionally interpret an ambiguous or vague request in a manner that produces favorable results for the opposition.
IN PRACTICE: First review the collected items
Before preparing the response, complete your review of the items you collected for possible production. [See §26:220 ff.] Only then can you fully uncover the requests’ instances of overbreadth, vagueness, and ambiguity. And only then can you accurately assess their practical effect, in terms of the specific items you will have to produce unless you object.
§26:281 TWO RESPONSE METHODS
As responding counsel, you can deal with overbroad, vague, or ambiguous requests by employing two general and alternative methods:
Object; interpret the request; produce according to your interpretation. [For details, see §26:282.]
Object; don’t interpret; don’t produce. [For details, see §26:283.]
[For which method to use, see §26:284.]
§26:282 OBJECT, INTERPRET, AND PRODUCE
To use this strategy in responding to overbroad, vague, and ambiguous requests:
Assert your objection; and
Interpret the request in a manner that eliminates the overbreadth, vagueness, or ambiguity; and
Offer to produce a document or category of documents based on your interpretation of the request.
All documents concerning financial information for ABC Corp.
Request to Request No. 1
ABC Corp. objects to this request on the ground that it is overbroad, arguably calls for the production of every single financial record of the company, and thereby seeks documents that are neither relevant to the issues in dispute in this action nor reasonably calculated to lead to the discovery of admissible evidence.
Subject to and without waiving this objection, ABC Corp. will produce its corporate tax returns and audited annual financial statements for the years 1995 and 1996.
Request No. 2
All documents concerning the employment of John Davis by ABC Corp.
Request to Request No. 2
ABC Corp. objects to this request on the ground that the phrase “concerning the employment” is vague, ambiguous, and undefined.
Subject to and without waiving this objection, ABC Corp. will produce its personnel file of John Davis.
The object-interpret-and-produce method has several benefits:
It enables respondent to narrow the scope of the request and thereby determine what documents are required.
It advances the general policy favoring open discovery.
If the objection results in a motion to compel, the method will show respondent made a reasonable attempt to comply, thus bolstering respondent’s credibility with the court.
§26:283 OBJECT AND DON’T PRODUCE
To use this strategy in responding to overbroad, vague, or ambiguous requests:
Assert your objection.
Do not interpret the request.
Do not offer to produce documents in response to the request.
Request No. 1
All documents concerning ABC Corp.
Response to Request No. 1
ABC Corp. objects to this request on the ground that it is overbroad and unduly burdensome. It arguably calls for the production of every single document in the files of the company. It thus seeks documents that are neither relevant to the issues in dispute in this action nor reasonably calculated to lead to the discovery of admissible evidence.
CAUTION: Be reasonable
This strategy is appropriate when the request is so poorly drafted there is no way to know what the requester seeks. Similarly, the strategy is appropriate if the request clearly is beyond the scope of permissible discovery.
§26:284 WHICH METHOD TO USE
As responding counsel you need not apply the same method to every offending request in a given set of requests. Rather, for example, you may object, interpret and produce in response to an ambiguous request, and object, not interpret (and not produce) in response to an overbroad request.
To choose between the two methods for a given request, consider:
The amount of extra time required to interpret and produce.
Is an objection and response likely to trigger a motion to compel?
What are the chances you will ultimately have to produce documents in response to the request?
If you interpret and produce, will you unavoidably produce harmful or embarrassing documents?
How objectionable is the request? (Thus, for example, object, interpret and produce if the meaning of an ambiguous request is obscure but discernible.)
IN PRACTICE: Consult with the requester
It is always worth at least one phone call to the requester’s counsel to try and resolve your objections to the request. Opposing counsel may agree to modify the request. If you agree on a modified request, confirm the agreement in writing.
ii. Unduly Burdensome
§26:290 UNDULY BURDENSOME VS. OVERBROAD
An objection that a request is too burdensome is based on a claim that production would be so time-consuming or costly that the response should be excused.
An objection that a request is overbroad is based on a claim that the discovery sought is not relevant to the subject matter of the action.
In practice, the distinction between overbroad and unduly burdensome requests is not a well defined one, and a court may deny a request on both grounds without making a reasoned distinction between them. [See Raisler Corp. v. 101 Park Ave. Assoc., 102 AD2d 794, 477 NYS2d 153 (1st Dept 1984) (demand for “correspondence between or among any of the defendants and any or all of their trade contractors” denied as “overbroad and burdensome”); Savasta v. Katz, NYLJ, August 9, 2000, p 22 (Sup Ct NY Co) (subpoena seeking “all records” or minutes of “any and all” board meetings is overbroad).]
§26:291 THREE RESPONSE METHODS
As responding counsel, you can deal with unduly burdensome requests by employing three general and alternative methods:
Object; rephrase the request; and produce as rephrased. [For details see §26:282.]
Object; don’t interpret; don’t produce. [For details see §26:283.]
Move for a protective order. [For details see §26:363.]
§26:292 OBJECT, REPHRASE, AND PRODUCE
To use this strategy in responding to unduly burdensome requests:
Assert your objection.
Rephrase the request in a non-burdensome manner.
Produce some documents based on your interpretation of the request.
Of course, the objection and rephrasing are subject to challenge. This procedure might be advisable where some of the documents are obviously important and discoverable, and a hearing on a motion challenging the burdensomeness objection would probably result in an order compelling production of at least some of the documents.
§26:293 OBJECT AND DON’T PRODUCE
To use this strategy in responding to unduly burdensome requests:
Assert your objection.
Do not offer to produce documents in response to the request.
Objecting may be preferable to moving for a protective order because it places the burden on the opposing party to move to compel compliance with the request. [See Matter of T./P. Children, 165 Misc2d 333; 629 NYS2d 677 (FamCt Albany Co 1995) (once the objecting party serves a response under CPLR 3122, the burden shifts to the discovering party either to forego discovery of the documents to which an objection has been raised, negotiate a modification of the objected-to request, or request the aid of the court pursuant to CPLR 3124).]
However, if the requesting party challenges the objection, you must plead and prove how truly difficult it would be to comply with the discovery request. [Engelhardt v. City of New York, 181 Misc2d 383, 694 NYS2d 609 (Sup Ct NY Co 1999) (the party must state with reasonable particularity the reason for each objection pursuant to CPLR 3122(a)).]
§26:294 MOVE FOR PROTECTIVE ORDER
Historically in New York, the usual response to unduly burdensome requests was to move for a protective order. [See CPLR 3103 (allowing orders “designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”]
However, with the 1993 revisions to CPLR 3122, respondents generally object, rather than going to the expense and burden of a motion for a protective order.
e. Protect Confidential Information
As respondent’s lawyer, consult your client if the request seeks documents that appear to contain trade secrets or other confidential information. [For client consultation, see §26:301.] Discuss and determine the level of protection required to safeguard that information against improper use.
Next, contact opposing counsel. If you and counsel can agree on the appropriate level of protection, specify the protection terms in:
A “confidentiality agreement” that contractually binds the parties to its terms [see §26:302], or
An agreement that the parties choose to have “So Ordered” by the court.
Where a judge has already been involved in addressing discovery or substantial matters in a case, the latter alternative is probably the best one.
IN PRACTICE: Prohibit extracurricular use
As respondent’s counsel, always attempt to prohibit the opposition from using disclosed confidential information outside the action at bar. Unless disclosure is expressly conditioned on such a restriction, dissemination is out of your client’s control.
If the parties cannot agree how to treat confidential information, respondent should unilaterally move the court for a protective order. [For protective orders, see §26:363.]
A court will not “rubber stamp” a proposed order, but should grant it if good cause exists. [See Jackson v. Dow Chemical Co., 214 AD2d 827, 624 NYS2d 675, 677 (3d Dept 1995) (party seeking confidentiality order covering trade secrets must make an initial factual showing that trade secrets would be revealed by proposed discovery; burden then shifts to requester to show that information sought is indispensable to its case).]
§26:301 CONSULT CLIENT
As respondent’s lawyer, discuss the confidentiality problem with your client to find a reasonable solution the client is willing to accept. For example, the client may permit you to disclose the information if it is disclosed only to opposing counsel and one or two selected persons in the requester’s organization.
Suggest solutions your client may not think of. For example, you might suggest limiting the opposition’s litigation use of the confidential information to specified purposes (e.g., to impeach testimony by respondent that contradicts the information).
§26:302 CONFIDENTIALITY AGREEMENT
In response to a request for documents containing confidential information, first object on the basis of confidentiality. Then, if your client is willing to conditionally produce the documents, offer to produce them if the parties reach a satisfactory confidentiality agreement.
Request No. 55
The employment contract between John Davis and XYZ Company, dated on or about January 16, 1996.
Response to Request No. 55
XYZ Company objects on the ground that the request seeks a document that contains XYZ’s proprietary trade secrets.
Subject to and without waiving this objection, XYZ will produce the contract for [requester] ABC Corp. if XYZ and ABC execute a confidentiality agreement with terms satisfactory to XYZ.
IN PRACTICE: Send draft to opposition
Both to reach a satisfactory result, and as starting point for negotiation, send opposing counsel a draft agreement. It should contain all the terms and protections you will require in the final agreement (plus, perhaps, a few you would be willing to sacrifice). If you anticipate confidentiality issues arising, send the draft agreement at the same time as the response, if not sooner.
§26:303 INADVERTENT DISCLOSURE
Inadvertent disclosure does not operate as an automatic waiver of attorney client privilege as long as there is a prompt objection to disclosure after discovering it. [New York Times Newspaper Division v. Lehrer McGovern Bovis, Inc., 300 AD2d 169, 752 NYS2d 642 (1st Dept 2002) (disclosure operates as a waiver of privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued); Manufacturers and Traders Trust Co. v. Servotronics, Inc., 132 AD2d 392, 522 NYS2d 999 (4th Dept 1987).]
Michael H. Barr is a partner with Sonnenschein Nath & Rosenthal in New York City. His practice concentrates on complex commercial, class action, insurance coverage, and securities litigation across a broad spectrum of substantive areas, including consumer fraud, environmental, insurance, trade regulation, real estate, professional liability, and contractual disputes.
Mr. Barr is presently serving as national coordinating counsel for an international insurer in defending a series of class actions involving retrospective premium workers’ compensation issues. Over the past five years, he has defended another major insurer against allegations of improper life insurance sales practices in a consolidated multi-district litigation in federal court and before a multi-state task force of state insurance departments.
He has successfully defended a broad array of other companies in bad faith and other insurance coverage actions, including numerous appeals. He has lectured and written on a variety of insurance coverage issues, and has delivered papers at seminars on advertising injury, securities coverage, and bad faith issues. He has also successfully represented investor groups, bank directors and public companies in contested securities and mergers and acquisition cases. Mr. Barr is a cum laude graduate of Harvard LawSchool.
The Honorable Myriam J. Altman served as an Associate Justice in the Appellate Division, Second Department, New York City from 1994 to 2004. She died on January 29, 2005.
Prior to her appointment as Associate Justice, she served as Judge of the Civil Court of the City of New York from 1978 to 1987 and Acting Justice of the Supreme Court from 1979 to 1997. She was elected Justice of the Supreme Court of the State of New Yorkin 1987. In 1993 she presided over one of the four new specialized commercial parts in New YorkCounty.
Justice Altman was chair of the Appellate Division’s In-house Continuing Legal Education Committee, and a member of the State Bar’s Standing Committee on Civil Practice Law and Rules. She was chair of the Litigation Committee of the Association of the Bar of the City of New York, and co-chair of the Office of Court Administration Committee on Case Management Education. She was a member of the Commercial Courts Task Force, and from 1988 to 1993 was a member of the State Commission on Judicial Conduct. In October 1996, July 1993, and October 1993, Justice Altman was found qualified for appointment to the Court of Appeals by the Commission on Judicial Nomination. She graduated from the NYU School of Law.
Burton N. Lipshie has since 1977 been the Managing Attorney of the 60-lawyer Litigation Department of Stroock & Stroock & Lavan in New York City, and the firm’s national litigation coordinator.
He is responsible for providing procedural expertise in all litigation matters handled by the New York City office, and for creating and running programs on litigation skills and advanced legal writing. He has a general litigation practice, with an emphasis on motions and appellate work.
Before joining Stroock, Mr. Lipshie was an Assistant District Attorney in New YorkCounty from 1967 to 1971, and Law Secretary to Justice Abraham Gellinoff, Supreme Court, New York County and Appellate Term, First Department from 1971 to 1977.
Since 1985, Mr. Lipshie has been an adjunct professor at Cardozo School of Law where he teaches New York Practice, Legal Writing, and Moot Court. For nine years in a row he was named “Outstanding Adjunct Professor” and now the award is named after him.
He serves on the Advisory Committee on Civil Practice to the Chief Administrative Judge, the CPLR Committee of the State Bar Association, and the Departmental Disciplinary Committee of the Appellate Division, First Department. He has provided the annual CPLR update at the Unified Court System annual judicial seminars since 1993, as well as the annual seminar for Law Clerks and Court Attorneys, and has delivered the annual Civil Law Update at the Bar Association of the City of New York.
Sharon Stern Gerstman has been the Principal Law Clerk for Hon. Joseph D. Mintz of the Eighth Judicial District (Buffalo) of the New York Supreme Court since 1981. She is also an adjunct professor at the University of Buffalo Law School, where she has taught New York Civil Practice since 1987.
Mrs. Gerstman is a former member of the ABA Board of Governors and currently serves in the ABA House of Delegates and on the Council of the ABA Section of Taxation. She is also a member of the New York State Bar Executive Committee and House of Delegates, and is immediate past chair of the State Bar’s Standing Committee on Civil Practice Law and Rules.
She is on the Professional Ethics Committee for the Bar Association of Erie County, and has served on its Board of Directors, on its Judicial Screening Committee and as past President of its Foundation. She was President of the Women Lawyers of Western New York.
She has written for various ABAand New York State Bar Publications, and has spoken frequently at ABA, New YorkState Bar, and Erie County Bar CLE seminars. She has a JD from the University of Pittsburghand an LLM from YaleLaw School.
They are the authors of, from which this article is excerpted.
By Leonard Bucklin
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