Late Filing of Objections Can Waive Privilege Claims

July 6, 2001

Litigants who ignore document request deadlines normally waive any right to object to the request. A court recently held that such tardiness can even waive objections based on the attorney-client privilege and work product doctrine too.

In Carfagno v. Jackson Nat’l Life Ins. Co., No. 5:99cv 118, 2001 U.S. Dist. LEXIS 1768, at *5 (W.D. Mich. Feb. 13, 2001), defendant Jackson National argued that its failure to respond to a document request until thirty days after the deadline may have waived some objections, but not privilege or work product objections. The court vigorously disagreed: “[t]his rule applies with equal force to all objections, including those based on attorney-client privilege or attorney work product.” (quoting Cleveland Indians Baseball Co. v. United States, No. 96-cv-2240, 1998 U.S. Dist. LEXIS 1459, at *15 (N.D. Ohio Jan. 28, 1998)).

Litigators should know whether courts in which they are litigating will take this harsh an approach. Delay in responding to document requests in these courts could have devastating results.