Discovery objections, decoded

Why this matters

Discovery is where most employment cases are won or lost. The employer has the emails, the time records, the HR notes, and the leave files. You get to see them only by asking, and the employer's first answer to most requests will be an objection.

Objections are not the end of the conversation. Many are boilerplate that the rules no longer allow. Some have a point and show you a better way to ask. A few become traps when you use them yourself in answering the employer's discovery. This page explains the common objections you will see from the employer, how to push back, and how to avoid the same mistakes in your own answers.

This is a reference page for Chapters 5, 6, 7, and 9. It is general information, not legal advice.

Why interrogatories and document requests are worth the work

• Sworn answers lock in positions. An interrogatory answer is given under oath. The employer will have to live with it at depositions and at the hearing.
• Their documents can contradict their sworn answers. Compare every answer with every page they produce. Make a simple table with three columns for the answer, the document, and the conflict. This is some of the best material you will have for cross-examination.
• Objection patterns show where evidence is. Track which requests draw objections and which get answers.
• Clean answers can be admissions. An answer given without objection may concede that the employer has no facts behind a position. Read the answers that do not fight you as closely as the ones that do.
• Your letters build the record. A short, specific letter asking for a written answer to each problem shows the arbitrator that you tried to resolve things before asking for help.

The rules behind every objection

In arbitration, the arbitrator runs discovery. AAA Rule R-21(a) tells the arbitrator to manage the exchange "with a view to achieving an efficient and economical resolution of the dispute while, at the same time, promoting equality of treatment and safeguarding each party's opportunity to fairly present its claims and defenses." Court rules are models unless your agreement or order adopts them. Read your scheduling order first.

The court rules still matter, because arbitrators know them and often follow their logic. Four of them shape almost every objection fight.

1. Objections must be specific. For interrogatories, FRCP 33(b)(4) says "The grounds for objecting to an interrogatory must be stated with specificity." For documents, FRCP 34(b)(2)(B) requires a party to "state with specificity the grounds for objecting to the request, including the reasons." New York's CPLR 3122(a) and 3133(a) both require objections stated "with reasonable particularity."
2. Objections must say whether anything is held back. FRCP 34(b)(2)(C) says "An objection must state whether any responsive materials are being withheld on the basis of that objection." New York's uniform rule for its Supreme and County Courts, 22 NYCRR 202.20-c(b), asks the same thing.
3. Late or vague objections can be lost. FRCP 33(b)(4) says "Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." In New York, the First Department held in Khatskevich v. Victor, 184 A.D.3d 504 (1st Dep't 2020), that a party who "never timely objected with particularity" to a document demand had "waived objection based on any ground other than privilege or palpable impropriety."
4. An evasive answer counts as no answer. FRCP 37(a)(4) says "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond."

Courts have been blunt about boilerplate. In Fischer v. Forrest, No. 14 Civ. 1304, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017), the court called "overly broad and unduly burdensome" with no explanation "meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing." In Jacoby v. Hartford Life & Accident Insurance Co., 254 F.R.D. 477, 478 (S.D.N.Y. 2009), a party that answered with unsupported burden, overbreadth, and relevance objections and produced nothing was told its responses "are a paradigm of discovery abuse." In New York state court, Anonymous v. High School for Environmental Studies, 32 A.D.3d 353, 359 (1st Dep't 2006), held that "boilerplate claims of privilege" are "insufficient as a matter of law."

The same rules apply when you answer the employer's discovery. If you object with bare labels, expect the same treatment you would ask for.

Four questions to ask about any objection

The entries after this list are written for you, the employee, reading the employer's objections to your requests. Each one says what the objection means, when it has a point, and how to push back. Where it helps, a short note covers raising the same objection when you answer the employer's requests.

1. Does it say why? A label alone ("overbroad," "burdensome") is not a reason.
2. Does it say whether anything is being withheld because of it?
3. Did they answer anyway? If they answered part, ask what part was left out.
4. Is there a narrower version of my request that meets the concern? If so, offer it in writing. Arbitrators reward the side that offers a reasonable fix.

Objections about scope and burden

Overbroad

The employer says your request asks for more than the case needs, such as "all communications" about a broad topic with no limit on people or dates.

It has a point when your request truly has no limits on subject, people, or time.

Ask the employer which part it thinks is proper, and ask it to produce that part now. The 2015 Committee Note to FRCP 34 says "if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad." Then offer a narrower version with named people, a subject, and a date range. When you answer the employer's requests and use this objection yourself, say what you will produce.

Unduly burdensome or not proportional

The employer says producing the material would cost more than it is worth to the case.

It has a point when the employer gives real facts, such as which systems hold the data, how many records, and how many hours the search would take.

Burden has to be shown, not stated. FRCP 26(b)(1) lists the factors, including "the parties' relative access to relevant information" and "whether the burden or expense of the proposed discovery outweighs its likely benefit." In leave cases, the employer holds nearly all the records, which weighs in your favor. If the data sits in a system that runs reports, ask why one more report is a burden. Offer a shorter date range or a sample if the full set is truly large.

Vague and ambiguous

The employer says it cannot tell what your request asks for.

It has a point when your request uses an undefined term that could mean several things.

If the employer answered anyway, it understood the request. Ask it to state the reading it used. When you write requests, define your key terms and use plain words.

Not relevant

The employer says your request has nothing to do with the claims or defenses.

It has a point when the request reaches into areas no claim or defense touches.

Tie the request to a specific claim element or to a defense the employer raised. FRCP 26(b)(1) covers matter "relevant to any party's claim or defense" and says "Information within this scope of discovery need not be admissible in evidence to be discoverable." New York's CPLR 3101(a) is broader still, requiring "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." A defense the employer raised is part of "any party's claim or defense," so discovery that tests it is within scope. For example, an employer that says it treats everyone the same will have a hard time refusing to show how others were treated.

When you answer the employer's requests and one reaches your private records, offer a narrower record that meets the stated need before you refuse outright.

No time limit

The employer says your request has no date range, or starts long before the events.

This is easy to fix. Put a date range in every request, usually from shortly before the first relevant event to the decision or the filing of your demand. If the employer raises it, propose a range in your next letter.

Cumulative or duplicative

The employer says your request overlaps one it already answered.

This objection rarely decides much. Ask the employer to point to the earlier answer or the exact pages. If you use it yourself when answering, still produce, and say that you did.

Privilege and privacy objections

Attorney-client privilege

The employer says the material is a confidential communication with its lawyers for legal advice.

It has a point for the actual communications between the employer and its lawyers. The same protection covers your own communications with any lawyer you consulted.

Privilege covers communications, not facts. The date a litigation hold was issued, who received it, and whether data was lost are facts. In every case, ask for a privilege log. FRCP 26(b)(5)(A) requires a party withholding privileged material to "describe the nature of the documents, communications, or tangible things not produced or disclosed" in a way that lets the other side assess the claim. New York's CPLR 3122(b) asks for the legal ground for withholding each document, plus its type, general subject matter, and date.

Work product

The employer says the material was prepared for the case, such as its lawyer's interview notes or case strategy.

It has a point for real case-preparation material.

Ask the employer to separate the facts from the preparation. The people who know the facts should still be named, even if the notes of their interviews are protected. If the employer claims protection for more than that, ask for the specific basis and a log.

Whether a self-represented person's own preparation gets the same protection as a lawyer's is not settled everywhere, so do not count on it for your own notes (Chapter 11).

Settlement and mediation confidentiality

The employer says the material comes from settlement talks or a mediation.

Ask the employer to name the talks the objection covers and to confirm that nothing else is withheld on that ground. A document that exists apart from the talks does not always become protected just because it was shown during them. New York's CPLR 4547, for example, says it does not require excluding evidence "which is otherwise discoverable, solely because such evidence was presented during the course of compromise negotiations." If you raise this objection yourself, keep it just as narrow, and read the confidentiality terms of any mediation agreement you signed. Chapter 13 covers when offers can be used.

Medical and therapy records

The employer asks for your health, therapy, or pharmacy records, and you object.

This is the objection that matters most for many employees. How much privacy you keep depends on what you claim. If you claim only the ordinary distress anyone would feel, often called garden-variety emotional distress, and do not rely on a diagnosis or treatment, you are usually in a better position to resist, though courts differ. A broad claim can open your records. Decide the scope of your damages claim before you serve your responses, and do not drift later. Redact narrowly, log each redaction, and offer records that show only the administrative facts that matter, such as the date a form was sent. Chapter 7 covers this in depth.

Privacy of other employees

The employer refuses to give personnel information about co-workers, citing their privacy.

Privacy is usually handled with a confidentiality agreement or protective order rather than a flat refusal. Offer a confidentiality agreement and accept codes in place of names. Narrow your request to the same job group, supervisor, or decision-maker.

Confidential business information

The employer refuses to produce a policy or business record, or redacts it heavily, because it is confidential. The answer is the same as for co-worker privacy. Confidentiality usually justifies handling terms, not refusal. If a policy comes back heavily redacted, ask the employer to say what was redacted and why.

Objections about interrogatories

"Premature contention interrogatory"

The employer says it is too early to state the facts behind its positions, often its affirmative defenses.

It has a point only very early in the case, before either side has exchanged documents.

FRCP 33(a)(2) says an interrogatory "is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact." The same rule lets a court order the answer to wait, but that takes an order. A party that wants to wait has to ask the arbitrator for one. It cannot simply refuse. In Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 173 (S.D.N.Y. 2004), a federal trial court required answers based on the discovery already obtained, to be supplemented later if needed. The same court, quoting an earlier decision, said a contention interrogatory "is not simply a vehicle for requiring an adversary to regurgitate all factual information obtained in discovery." So ask for the principal facts, not every document. If the employer served the same kind of question on you, point that out. Chapter 18 covers affirmative defenses in detail.

"Calls for a legal conclusion"

Interrogatories may ask how the law applies to the facts. That is the same FRCP 33(a)(2) language quoted above. Rephrase to ask for the people, dates, and events behind the position.

Too many interrogatories

The requests exceed a numeric cap.

Check your order first. FRCP 33(a)(1) sets a default of 25 "including all discrete subparts," and New York's Supreme and County Courts use the same number under 22 NYCRR 202.20 unless the parties agree or the court orders otherwise. An arbitration order may set its own cap or none at all. If there is a cap, keep each interrogatory to one topic.

"See documents"

Instead of a narrative answer, the employer points you to documents.

It can have a point. FRCP 33(d) allows this when the answer can be found in the employer's own business records and "the burden of deriving or ascertaining the answer will be substantially the same for either party." The records must be identified "in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could."

Pointing to your own documents, to a huge mass of pages, or to the very document you asked about does not qualify. Ask for specific page numbers and for the who, what, and when in narrative form. When you answer the employer's interrogatories, give the principal facts in a few sentences. Very thin answers can come back to bite the side that has to prove its case.

Objections about possession and existence

Not in our possession, custody, or control

The employer says the material is held by someone else, such as a leave vendor, a benefits administrator, or a manager's personal phone.

The employer may still be able to get the material, for example from a vendor it hired. Ask what the employer did to obtain it and whether its contract with the vendor gives it access. Whether that counts as "control" depends on your forum's rules and cases, so check before you argue the point. If the material is truly held by a third party, ask the arbitrator about a subpoena (Chapter 5).

Equally available to you

The employer says you can get the material yourself. This is weak when you want to know which version the employer holds, and stronger for public records. Say why the employer's copy matters.

Already produced

The employer says it already produced the material. A reference to earlier production works only if it names exact pages, so ask for page numbers. Check every such reference in your own responses before you serve them.

"No responsive documents"

The employer says nothing exists.

Three steps help.

1. The phrase is in the present tense. Ask whether documents "exist or ever existed."
2. Name the sources, such as email, chat, text, and the HR system, so that "none" does not quietly mean "none in the email we searched."
3. Ask who searched, which accounts and devices were searched, and for what dates.

Ask for a statement the employer can truthfully sign, such as confirming that no documents exist. A demand for a statement it would have to contradict elsewhere is easy for it to refuse.

Responses that dodge

General objections attached to every answer

A page of "general objections" at the front, applied to every request by reference.

Federal courts read the 2015 amendments to discourage this. In Fischer, the court said "General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material)." Ask that general objections be withdrawn or tied to specific requests, with a statement of whether anything is withheld because of each one. If the employer has asked you to say what you withheld, it is fair to ask the same of the employer.

"Subject to and without waiving"

Objections, then a partial answer "subject to" them.

The 2015 Committee Note to FRCP 34 says the withholding requirement was meant 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." Ask one question for each such answer. "Is anything withheld on the basis of this objection? If so, identify it."

"Will produce responsive, non-privileged documents"

A promise with no date and no statement about what is held back.

FRCP 34(b)(2)(B) says production must be completed by the time in the request "or another reasonable time specified in the response." Ask for a date, a description of the search, and a log of anything held back.

Privilege asserted, but no log

Privilege objections appear in several answers, but no privilege log arrives.

Ask which is true. Either nothing is withheld as privileged, and the objections should be withdrawn, or something is withheld, and a log is owed. Ask for the answer in writing. If a full log would be heavy, offer to accept a log by category.

Patterns worth knowing

Refusing to answer about affirmative defenses

Employers often plead many one-line defenses and then refuse to give the facts behind them. Use the points on contention interrogatories above, and see Chapter 18. Ask the arbitrator for a date by which supplements must be served, so a defense with no facts stays that way.

Who changed the records

Requests for audit trails or change histories in time, leave, or HR systems often draw burden objections. Check that any report covers the whole period you asked for. If it does not, ask for the rest. Then compare the employer's sworn answers with the documents created at the time.

Texts and chats

Employers often produce email but not texts or chats. A four-part demand works well.

1. Do responsive texts and chats exist, yes or no?
2. Describe the search.
3. Produce them or log them.
4. When was a litigation hold issued, and was auto-delete turned off?

Expect the same demand for your own texts. Texts and social media posts are documents under most definitions.

Identifying people

Ask the employer to name everyone with knowledge of the facts. The federal model, FRCP 26(a)(1)(A)(i), requires initial disclosure of individuals "likely to have discoverable information." Expect the same question from the employer (Chapter 7).

Authorizations

Employers often ask you to sign releases so they can get records directly from third parties, such as benefits or medical records. Before you refuse, offer a substitute record that serves the stated purpose.

Breaking the procedure

If the employer's letter goes over a page limit, skips required conferral, or comes in late, object in writing right away with a date for a response. Waiting can be treated as accepting it. Chapter 9 explains why, under AAA Rule R-39.

A short deficiency letter

When responses come back weak, send one letter that lists each problem and asks for a written answer by a date. Keep each item to a few lines.

Request No. [number] (emails between [role] and [role] about [subject] from
[start date] to [end date]).
You objected as "unduly burdensome" without stating the systems, volume, or cost.
Please state whether any responsive material is being withheld on the basis of
that objection. If so, identify it, and either produce it or explain the burden
with specifics by [date]. As an alternative, we will accept a search of those two
mailboxes for [search terms], with the number of hits reported before review.

Then hold the conferral call your order requires, take notes, and confirm the results in writing the same day. If nothing changes, Chapter 9 covers the motion.

Checklist

• For each objection, ask whether it says why and whether anything is withheld.
• Offer a narrower version in writing when the objection has a point.
• Ask for exact page numbers when they say "already produced" or "see documents."
• Ask "exist or ever existed" and name the sources when they say "no documents."
• Ask for a privilege log whenever privilege is claimed.
• Answer "premature" with FRCP 33(a)(2) and your arbitration rule on information exchange.
• Give your own objections the same care. State the reason, state whether anything is withheld, and produce the rest.
• Compare every sworn answer against every produced page.

Check your state

• Your state's deadline to object and whether a late objection is waived.
• Whether your state requires objections to say whether material is withheld, as New York's 22 NYCRR 202.20-c does.
• Your state's privilege log rule and its content requirements.
• Any numeric limits on interrogatories in your state's court rules.
• Whether your arbitration order adopts any of these rules. If it does, they bind you and the employer.

Back to Chapter 5, Discovery basics.