Plaintiffs filed their complaint in this putative class action on May 6, 2016.[1] (Doc. 1.) They claim that Saint-Gobain and its predecessor ChemFab Corporation (“ChemFab”) caused groundwater and property contamination by discharging perfluorooctanoic acid (“PFOA”) from facilities in Bennington and North Bennington, and that the contamination resulted in diminished property values and other economic loss. (See id.) Plaintiffs also seek medical monitoring to detect any ailments associated with exposure to PFOA. (Id. at 26.)[2]

Shortly after the original complaint was filed, Plaintiffs’ counsel Emily Joselson sent a letter to defense counsel dated July 7, 2016. (Doc. 255-2.) Discovery had not yet commenced at that time, but Saint-Gobain describes the letter as one of Plaintiffs’ “early discovery demands” bearing on the scope of discovery. (Doc. 255 at 3.) The letter notified Saint-Gobain of its duty to preserve “all relevant information relating to the subject operation of its former manufacturing facility or facilities in Bennington and North Bennington, VT, its use and handling of chemicals containing PFOA or other perfluorinated compounds at these facilities, and contamination of the water and soil in and around North Bennington and Bennington.” (Doc. 255-2 at 2 (emphasis added).)

Discovery did not commence until after the court issued its December 28, 2016 Opinion and Order on Saint-Gobain's motion to dismiss or stay. (See Doc. 29.) The court issued a discovery order on February 9, 2017. (Doc. 43.) Plaintiffs served Saint-Gobain with their First Requests for Production of Documents (“First RTP”) on February 24, 2017. (Doc. 249-1 ¶ 4.) Saint-Gobain served its response on March 27, 2017. (Doc. 249-2.)

Saint-Gobain did not produce any documents with its March 27, 2017 response. Instead, in a “Preliminary Statement” within that response, Saint-Gobain described categories of documents that it would produce “at a reasonable time and on a staged, rolling basis as the process for producing such documents is completed, subject to the entry of a protective order.” (Doc. 249-2 at 4.) For each category of document, Saint-Gobain specified when production would begin and when it would be concluded. (See id. at 4–8.)

*2 Saint-Gobain then listed ten numbered objections applicable to more than one of Plaintiffs’ requests. (Id. at 10–14.) Three of those ten objections are at issue here; they relate to “subject-matter” (Objection 4), “time” (Objection 5), and “geographic scope” (Objection 6). The parties refer to these three objections as the “scope objections.”

In Objection 4 (entitled “No Limitation in Subject-Matter Scope”), Saint-Gobain stated that it “objects to requests that seek documents dealing broadly with Saint-Gobain or processes, chemicals, or other records that lack any nexus to PFOA.” (Id. at 11.) Saint-Gobain explained that it “objects to such requests on the grounds that they are overbroad, seek documents neither relevant to any class action claim or defense in this action nor proportional to the needs of the case, and are otherwise unduly burdensome and oppressive.” (Id. at 11–12.)

In Objection 5 (entitled “No Limitation to Relevant Period”), Saint-Gobain objected to “requests for documents about operations and activities that occurred after the business closed in North Bennington, Vermont and Bennington, Vermont”—i.e., after 2002. (Id. at 12.) In Objection 6 (entitled “No Limitation to Relevant Geographic Scope”), Saint-Gobain objected to any requests that lacked a “nexus to Saint-Gobain or Chemfab's operations at facilities located in Bennington, Vermont and North Bennington, Vermont where Plaintiffs allege the events underlying their claims took place.” (Id.) In each of the three relevant Objections, Saint-Gobain stated: “Documents may be withheld on the basis of this objection.” (Id. at 11–13.)

Saint-Gobain's response also describes objections to each of the 37 numbered requests for production in the First RTP. (Id. at 14–50.) Many of the objections referred to the reasons specified in one or more of the ten numbered objections, including Objections 4–6. Saint-Gobain nevertheless agreed to produce certain documents that it identified as responsive, but “subject to” and “without waiver of” its objections. (See, e.g., id. at 14–15.) The documents that Saint-Gobain agreed to produce were frequently described as documents from the categories that Saint-Gobain listed in the “Preliminary Statement.”

By letter dated April 7, 2017, Ms. Joselson articulated concerns with Saint-Gobain's response to the First RTP and requested a conference. (Doc. 249-3.) According to Ms. Joselson's affidavit, the parties discussed Objections 4–6 at a meet-and-confer on April 18, 2017. (Doc. 249-1 ¶ 5.) Ms. Joselson states that, at the meeting, Saint-Gobain “agreed to produce all responsive documents regarding its operations in Vermont, as well as all documents that ‘have anything to do with the operations in Vermont,’ regardless of subject-matter, time, or geographic scope.” (Id.) Also, according to Ms. Joselson, Saint-Gobain further agreed that “if they withheld any document based on Objections 4–6, they would log them, or otherwise communicate to Plaintiffs that they were withholding them, with sufficient particularity to allow Plaintiffs to seek relief” from the court. (Id.)

It does not appear that Saint-Gobain ever supplied Plaintiffs with a statement of the limits that controlled the search under any of the scope objections. Saint-Gobain never supplied Plaintiffs with a “log” of documents not produced under Objections 4–6. As described below. Saint-Gobain disputes that it agreed to prepare any such log. In any case, the court entered a stipulated protective order on April 4, 2017 (Doc. 58), and Saint-Gobain began producing documents to Plaintiffs. It is undisputed that Saint-Gobain produced many documents in the course of two years of discovery in this case; Saint-Gobain states that it produced over 75,000 pages. (Doc. 255 at 1.)

*3 In a letter to Plaintiffs’ counsel dated July 13, 2017, Saint-Gobain responded to an inquiry about the production of documents relating to 2004–2005 stack testing in Merrimack, New Hampshire, Saint-Gobain asserted that “[a]s we explained in the March 27, 2017 responses and objections to document discovery, operations beyond the facilities in Bennington and North Bennington, Vermont and activities after 2002 are not pertinent to this matter absent a nexus to the Vermont operations.” (Doc. 255-4 at 2.)

Saint-Gobain served objections and responses to Plaintiffs’ subsequent Second (“Second RTP”) and Third (“Third RTF”) Requests for Production of Documents. (See Docs. 249-4, 249-5.) Those responses—dated October 2, 2017 and June 6, 2018, respectively—also included Objections 4–6. As with Saint-Gobain's response to the First RTP, each of the three relevant objections included a statement that “[d]ocuments may be withheld on the basis of this objection.” (Doc. 249-4 at 11–12; Doc. 249-5 at 13–14.)

In a letter dated June 28, 2018, Ms. Joselson requested a conference with the defense. (Doc. 249-6.) The letter noted that Saint-Gobain's June 6, 2018 response to the Third RTP included no production of documents. (Id. at 1.) The letter demanded production responding to 15 document requests. (Id. at 2–4.) For each of those 15 requests, the letter asked Saint-Gobain: “To the extent you are withholding any documents based on your purported objections, produce the privilege log for each and every such document or partial document.” (Id. at 2–4.)

The parties conferred on July 6, 2018 and August 9, 2018. (Doc. 249-1 ¶¶ 10–11.) According to Ms. Joselson, defense counsel disclosed “for the first time” at the July 6, 2018 conference that Saint-Gobain “may have withheld” documents on the basis of Objections 4–6. (Id. ¶ 10.)

In a letter to the defense dated February 1, 2019, Ms. Joselson asserted that Saint-Gobain had agreed at the April 18, 2017 meet-and-confer that, to the extent it withheld any documents based on Objections 4–6, Saint-Gobain “would log them, or otherwise communicate to [Plaintiffs] that [Saint-Gobain was] withholding documents, with sufficient particularity to allow [Plaintiffs] to seek relief from the Court in case of a dispute.” (Doc. 249-7 at 1.) The letter further asserted that Saint-Gobain had not previously indicated that it was withholding any documents on the basis of those objections in any privilege logs or other communications to Plaintiffs. (Id.) But, according to the letter, Saint-Gobain disclosed at the July 6, 2018 conference that it was withholding documents under one or more of the three objections. (Id.) Ms. Joselson asked the defense to confirm whether it had withheld any documents from discovery based on Objections 4–6. (Id.)

Saint-Gobain replied by letter dated February 14, 2019. (Doc. 249-8.) Saint-Gobain took the position that it had “long maintained these objections to several of Plaintiffs’ discovery requests, explained the basis for the objections, and indicated that, where documents are found that are subject to the objections, they will not be produced.” (Id. at 1.) Citing statements from its responses to the First, Second, and Third RTPs, the several meet-and-confers, and the July 13, 2017 letter, Saint-Gobain asserted that “these issues have been discussed for well over a year now, in our objections, in our correspondence, and in our meet and confers.” (Id.) According to Saint-Gobain, “Plaintiffs cannot claim to have been unaware that documents were withheld on the basis of Saint-Gobain's objections.” (Id.)

*4 Finally, regarding the request for a log of documents withheld, Saint-Gobain asserted that it had no obligation to prepare any such log except for documents withheld subject to an assertion of privilege. (Id. at 2.) Saint-Gobain insisted that it had not agreed to voluntarily prepare a log of withheld documents but had instead agreed “to identify instances in which we withheld a document from a document family that contained other responsive documents” and that in those instances, Saint-Gobain “produced a slip sheet indicating that ‘Document Not Produced – Non-responsive.’ ” (Id.) After receiving that letter, Plaintiffs searched the documents that Saint-Gobain had produced to date and found 106 “slip sheets” stating “Document Not Produced – Non-responsive.” (Doc. 249-1 ¶ 16.) Saint-Gobain sent Plaintiffs a supplemental production on March 1, 2019 that included four additional instances of withheld documents, bringing the total to 110. (See Doc. 263-1.)

Plaintiffs argue that Saint-Gobain has improperly withheld documents in violation of its alleged April 18, 2017 agreement and Fed. R. Civ. P. 34(b)(2)(C). Plaintiffs request that Saint-Gobain be compelled to produce a log identifying the documents that it has withheld under Objections 4–6; an order for in camera review of such withheld documents; and that Saint-Gobain be compelled to produce all documents consistent with search parameters that the court deems just and proper. (Doc. 249 at 15.) Saint-Gobain maintains that Objections 4–6 are proper, that the applicable rules do not require production of the requested log, and that it did not agree to provide such a log. (Doc. 255 at 6–11.) In addition, Saint-Gobain asserts that Plaintiffs’ motion to compel is an improper attempt to reopen fact and expert discovery. (Id. at 12.) Plaintiffs reply that their motion is timely and is not an attempt to reopen discovery or delay the case. (Doc. 263 at 2.) Plaintiffs insist that Objections 4–6 are improper and inconsistent with the Federal Rules of Civil Procedure. (Id. at 5.)

A. Rule 34(b)(2)(C)

The court begins with the requirements of Fed. R. Civ. P. 34(b)(2)(C). As amended effective December 1, 2015, that rule states that an objection to a request to produce “must state whether any responsive materials are being withheld on the basis of that objection” and that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). The 2015 amendment was designed to “end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” Fed. R. Civ. P. 34(b)(2)(C) advisory committee's note to 2015 amendment. “The producing party does not need to provide a detailed description or log of all documents withheld but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” Id “An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’ ” Id.

As amended, Rule 34(b)(2)(C) works together with amended Rule 34(b)(2)(B), which requires that objections to requests to produce must be stated “with specificity.” Fed. R. Civ. P. 34(b)(2)(B). The committee notes explain that “[t]he specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(B) advisory committee's note to 2015 amendment. Notably, the 2015 amendments to Rule 34 “affect[ ] the daily work of every litigator” and have caused at least one court to issue a “discovery wake-up call” to encourage counsel to update their practices. Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 2017 WL 773694, at *1 (S.D.N.Y. Feb. 28, 2017).

B. Rule 34(b)(2)(C) Does Not Require a Document “Log”

*5 Saint-Gobain correctly observes that the federal rules do not require production of the document log that Plaintiffs requested. Producing such a log is one possible way to comply with Rule 34(b)(2)(C), but as the advisory committee's notes indicate, a log is not necessary so long as the producing party “alert[s] other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” Fed. R. Civ. P. 34(b)(2)(C) advisory committee's note to 2015 amendment.

Moreover, as Plaintiffs describe it, the purported agreement at the April 18, 2017 meet-and-confer also did not require Saint-Gobain to produce a document log. Rather, Saint-Gobain allegedly agreed to either produce a log or, in the alternative, “otherwise communicate to Plaintiffs” if it was withholding any document based on Objections 4–6 “with sufficient particularity” to allow Plaintiffs to seek relief in court. (Doc. 249-1 ¶ 5.) Whether or not Saint-Gobain produced a document log is not dispositive.

C. “Conditional Boilerplate” Violated Rule 34(b)(2)(C)

Saint-Gobain argues that its written objections, the parties’ correspondence, and the meet-and-confers provided Plaintiffs with sufficient notice that Saint-Gobain was not producing documents on the basis of its objections. (Doc. 255 at 5.) In its written objections, Saint-Gobain referred to a variety of objections for each of the requests for production, including Objections 4–6 in some cases. But Saint-Gobain then stated that it would produce materials under one or more of the document categories it had identified “subject to” and “without waiver” of its objections. That response—sometimes referred to as “conditional boilerplate”—appears to be the genesis of the discovery problem at issue here. See Amir Shachmurove, Policing Boilerplate: Reckoning & Reforming Rule 34's Popular—Yet Problematic—Construction, 37 N. Ill. U. L. Rev. 203, 244 (2017) [hereinafter Policing Boilerplate] (“Conditional boilerplate invariably ‘leaves the opposing party in the dark as to whether something unidentified has been withheld.’ ” (quoting Myers v. Goldco, Inc., No. 4:08cv8-RH/WCS, 2008 WL 1995131, at *1 (N.D. Fla. May 6, 2008))).[3]

*6 After Saint-Gobain served its responses to the First RTP, the parties properly met and conferred. Unfortunately, the April 18, 2017 meeting and most of the subsequent meetings and correspondence apparently did not resolve the uncertainty about whether Saint-Gobain withheld any relevant and responsive information on the basis of Objections 4–6. Notably, Saint-Gobain never supplied Plaintiffs with a statement of the limits that controlled the search under the scope objections.

Saint-Gobain asserts that the “slip sheets” gave Plaintiffs “actual notice of the non-responsive documents that Saint-Gobain objected to producing.” (See Doc. 255 at 5.) The court agrees that the slip sheets gave notice that Saint-Gobain was withholding documents, but it is far from clear that the slip sheets gave notice that those documents were withheld on the basis of Objections 4–6. The slip sheets stated only “Document Not Produced – Non-responsive.” Although the slip sheets plainly indicated that information was being withheld, the “Document Not Produced” text supplied no details as to the basis for the withholding. Despite the undisputed fact that the parties met and conferred on multiple occasions, there is no evidence that, prior to the February 14, 2019 letter, Saint-Gobain advised or explained to Plaintiffs that the slip sheets indicated the documents were withheld based on Objections 4–6. Absent that specificity, Plaintiffs encountering the slip sheets among the reams of documents produced could not have known that documents were withheld on the basis of those three particular objections. Indeed, Plaintiffs’ correspondence suggests precisely that. Plaintiffs asserted in their February 1, 2019 letter that Saint-Gobain had sent “no logs or other communications[ ] identifying any documents withheld pursuant to these objections [Objections 4–6].” (Doc. 249-7 at 1.)

In a bid to reject Plaintiffs’ motion to compel on procedural grounds, Saint-Gobain asserts that, if Plaintiffs were uncertain about the effect of Saint-Gobain's objections, Plaintiffs should have sought clarification earlier. (Doc. 255 at 12.) The court agrees that Plaintiffs could have done more. They could have identified the “conditional boilerplate” responses immediately and requested that Saint-Gobain withdraw them, with citations to “the significant body of cases that condemn the ‘boilerplate’ discovery practice.” Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 190 (N.D. Iowa 2017). Then, if Saint-Gobain refused, Plaintiffs could have sought relief in the form of sanctions. Id. at 191.

But the court finds no basis to deny Plaintiffs’ motion as untimely or procedurally improper. Plaintiffs did seek clarification at the April 18, 2017 meet-and-confer. From that conference, Plaintiffs had the impression that Saint-Gobain would supply a log or other communication if it withheld any documents under Objections 4–6. As discussed above, the slip sheets did not specifically refer to Objections 4–6, so Plaintiffs perceived no need for court intervention until they later confirmed that Saint-Gobain had in fact withheld documents under those objections.[4]

*7 Ultimately, the parties’ filings related to the pending motion to compel suggest that the parties had multiple exchanges and discussions about discovery and about Saint-Gobain's objections, but those efforts failed to facilitate a productive or informed discussion of Objections 4–6. This is exactly the circumstance that the 2015 amendments to Rule 34 sought to avoid. The question now is what to do about it in this case.

D. Remedy

Plaintiffs seek various relief. They request that the court “find that Defendant's scope objections are improper, and require Defendant to identify and produce to Plaintiff's all non-privileged documents it has withheld pursuant to its scope objections, including the 110 withheld documents.” (Doc. 263 at 9.) Plaintiffs further assert that, “at a minimum,” the 110 documents should be produced. (Id. at 8.) Alternatively, Plaintiffs request an order “requiring Defendant to identify and produce for in camera review all documents it has withheld pursuant to its scope objections, so that the Court can make a determination of relevance and discoverability.” (Id. at 9.)

In the context of interrogatories, the federal rules specify a consequence for failing to object 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). But the rule governing production of documents, Rule 34, contains no such waiver provision. Some courts have reasoned that “a waiver should be implied into all rules involving the use of the various discovery mechanisms.” 7 Moore's Federal Practice – Civil § 34.13[2][c] (3d ed. 2019) (citing cases); see also Fisher, 2017 WL 773694, at *3 (announcing prospective rule that “any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege)”). Other courts have declined to read Rule 33’s automatic-waiver provision into Rule 34, reasoning that the textual difference must be given effect. See Ashford v. City of Milwaukee, 304 F.R.D. 547, 549 (E.D. Wis. 2015); see also Policing Boilerplate, 37 N. Ill. U. L. Rev. at 254–57 (asserting that Rule 34’s text must control).

The court concludes that imposing a blanket waiver and compelling disclosure of all documents withheld based on the scope objections would be disproportionate to the violation in this case. The court further concludes that in camera review of 110 or more documents would be an inefficient use of resources. The court will instead order Saint-Gobain to do what the advisory committee notes recommend and what Plaintiffs allude to in their filings[5]—supply Plaintiffs with a statement of the limits under the scope objections that controlled the search for responsive and relevant materials. For any of the 110 identified documents that Saint-Gobain continues to withhold, Saint-Gobain's statement must explain why each was withheld.

*8 The court expects that this level of specificity will help resolve the present discovery dispute. If it does not, Plaintiffs are free to renew their motion to compel, and knowing the particular search parameters would help the court make a determination. Should a renewed motion be forthcoming, the court will evaluate whether Saint-Gobain has met its burden of showing “specifically how, despite the broad and liberal construction afforded the federal discovery rules, each [discovery request] is not relevant or how each question is overly broad, burden some or oppressive.” Knapik v. Mary Hitchcock Mem'l Hosp., No. 5:12-cv-175, 2014 WL 12717392, at *5 (D. Vt. May 27, 2014) (alteration in original) (quoting Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984)).

Plaintiffs’ Motion to Compel (Doc. 249) is GRANTED IN PART and DENIED IN PART. Within 30 days, Saint-Gobain is directed to supply Plaintiffs with a statement of the limits under the scope objections that controlled the search for responsive and relevant materials for each of the three RTPs. For any of the 110 identified documents that Saint-Gobain continues to withhold, Saint-Gobain's statement must explain why each was withheld.

Dated at Rutland, in the District of Vermont, this 10th day of June, 2019.

Some of the named plaintiffs have changed since this suit was filed.

Plaintiffs have amended their complaint several times since the original complaint was filed. The currently operative Third Amended Complaint continues to seek damages for diminished property values and also seeks medical monitoring, describing proposed classes for each. (Doc. 113 ¶ 77.)

This court has described “boilerplate” discovery responses as inadequate. Country Homes Prods., Inc. v. Banjo, No. 2:15-cv-00037-cr, 2016 WL 9344261, at *2 n.2 (D. Vt. Nov. 14, 2016). As other courts have recognized, a conditional boilerplate response can lead to a violation of Rule 34(b)(2)(C). See Hauser v. Gen. Cable Indus., Inc., No. 3:16cv1694(RNC), 2017 WL 2294286, at *1 n.2 (D. Conn. May 25, 2017) (conditional boilerplate “leaves the requesting party uncertain as to whether the opposing party has fully answered its request”); Source Network Sales & Mktg., LLC v. Jiangsu Mega Motor Co., No. 3:16-CV-1202-B-BK, 2017 WL 7596913, at *4 (N.D. Tex. May 15, 2017) (such practice “leaves the requesting party guessing and wondering as to the scope of the documents or information that will be provided as responsive will be”; and “such objections, without more, violate the requirement of Fed. R. Civ. P. 34(b)(2)(C) that ‘[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.’ ” (alteration in original, internal quotation marks omitted)); Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 187 (N.D. Iowa 2017) (conditional boilerplate response does not satisfy the specificity requirement).

In addition to its procedural argument, Saint-Gobain argues that if it violated Rule 34, then Plaintiffs did too. (Doc. 255 at 9.) Saint-Gobain refers to two of Plaintiffs’ written responses to discovery requests, both of which contain “conditional boilerplate” responses. (See Docs. 255-5, 255-6.) While those responses are arguably improper, the court has no information about what agreements the parties might have made to resolve any issue with those responses, nor has Saint-Gobain filed a motion related to those responses. The court accordingly focuses on Saint-Gobain's discovery responses at issue here.

See Doc. 249 at 15 (requesting that Saint-Gobain be compelled to “produce all documents consistent with search parameters [the court] deems just and proper”); Doc. 263 at 7 (asserting that Saint-Gobain's “failure to identify its search parameters has allowed it to withhold potentially responsive and relevant documents, with no mechanism for Plaintiffs or the Court to contest the search”).