May 9, 2014
A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection followed by a bare "conditional" response, i.e., stating that "Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents," is now considered improper and may result in an inadvertent waiver of the party's stated objections. Several federal district courts are concluding that such a conditional response, without specifying what is being withheld based on the objection and what is being produced, is improper and, most significantly, that a party may waive its objections by responding conditionally.

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