Recently, a federal Special Master in the District of New Jersey addressed whether a requesting party waives its right to relevant and discoverable documents when it fails to timely follow up on the responding party’s objections. In In re Valeant Pharmaceuticals International, Inc. Securities Litigation, the Special Master refused to entertain the plaintiffs’ waiver argument, finding that the relevant and discoverable documents should be produced regardless.
In that case, defendant served its first request for the production of documents from plaintiffs on October 22, 2018. On July 29, 2019, plaintiffs served objections and responses to those requests. Certain responses included general objections. The response to one request, Request No. 7, included a statement that plaintiffs were “willing to meet and confer” with defendant regarding the “appropriate scope of responsive documents.” The response to another request, Request No. 11, included a statement that plaintiffs would conduct a “reasonable search for and produce responsive, non-privileged, or otherwise unprotected communications in their possession, custody, or control.”
Months later, on January 23, 2020, defendant followed up on these responses and offered to meet and confer, but plaintiffs responded that due to defendant’s failure to respond to their offer to “timely” meet and confer in their responses, the original offer to meet and confer was “withdrawn.” However, at no point did plaintiffs indicate that they were withholding non-privileged documents based on their objections.
On January 13, 2021, nearly a year after the meet and confer discussion, defendant took the deposition of plaintiffs’ 30(b)(6) witness. During this deposition, to defendant’s surprise, the witness testified about “several categories of documents” that the plaintiffs had not produced in response to the original requests. Due to this new development, on February 4, 2021, defendant requested that plaintiffs produce the specific documents that were previously withheld. Plaintiffs responded that defendant “had waived its right to pursue further discovery by not requesting additional documents or engaging in a meet and confer sooner.” Plaintiffs’ main argument was that the request for the withheld documents was untimely and, therefore, right to such production was waived. The Special Master rejected this argument and granted the defendant’s motion to compel discovery of the withheld documents.
Plaintiffs contended, among other things, that defendant “waived its right to seek additional documents from them because it had an obligation under the Rules to timely follow up on discovery that it deemed was improperly withheld.” In response, defendant asserted that it was “unable to request the Withheld Documents at an earlier point in time because it was not clear from the  Plaintiffs’ discovery responses that they were withholding documents based on the objections asserted, and these issues only came to light after the deposition of the  Plaintiffs’ 30(b)(6) witness.”
The Special Master stated that Federal Rule of Civil Procedure Rule 26(b)(1) creates “a broad range for discovery which would encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Further, it noted that discovery “provides each party with a fair opportunity to present an effective case at trial.” The Special Master held Federal Rule 34, which governs a party’s discovery requests, requires a party to “state whether any responsive materials are being withheld on the basis of [an] objection.” This is to prevent confusion, like that at issue here, when a party both objects and produces information—leaving the requesting party uncertain at what, if anything, is being withheld.
The Special Master found the withheld documents were relevant and must be produced. The Special Master disagreed that defendant’s right to the documents was waived because “it waited too long to follow up on them.” Further, because the withheld documents were not known to defendant until the 30(b)(6) deposition, the Special Master stated that “it is unclear how [defendant] did or should have known about the existence of the Withheld Documents to pursue them before the deposition.”  Therefore, the follow up request was “not even untimely in and of itself.”
The Special Master’s rejection of plaintiffs’ argument that the defendant waived its right to relevant and discoverable documents by failing to timely follow up on certain responses and objections is a decision that litigants in federal court litigation should consider during the discovery process. This decision indicates that litigants must specifically identify any documents being withheld, and that failure to do so will prevent them from later arguing that the other side waived its right to discovery.
 Order and Opinion of the Special Master at 11-12, In re Valeant Pharmaceuticals International, Inc. Securities Litigation, No. 15-07658 (MAS)(LHG) (D.N.J. Nov. 20, 2021). POTTER_v_VALEANT_PHARMACEUTIC_GMO_Discovery.pdf (seyfarth.com)
 Id. at 3.
 Id. at 4.
 Id. at 4-5.
 Id. at 5.
 Id. at 12.
 Id. at 6.
 Id. at 8.
 Id. at 9 citing Jones v. DeRosa, 238 F.R.D. 157, 163 (D.N.J. 2006) (internal quotation marks omitted).
 Id. citing Jones, 238 F.R.D. at 163 (internal quotation marks omitted).
 Id. at 10-11.
 Id. at 11.