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Producing Documents Subject to Objections May Amount to Waiver of Objections

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August 15, 2014
Chapman Sidebar

All litigators have written the phrase: “Subject to and without waiving the foregoing objections, see documents attached hereto.” Despite its frequent use, this phrase may soon join the assemblage of overused and outdated legalese.

A growing number of courts have recently attacked the routine discovery practice of providing conditional responses to document requests. Such conditional responses, or responses that assert objections but state that documents will be produced subject to the objections, may be improper and may even result in an inadvertent waiver of stated objections, or worse. Attorneys and their clients should rethink any boilerplate strategy for responding to written discovery to prevent unintentional waivers and sanctions.

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