Practice Points with Mark Scruggs: Timely Respond to Discovery Requests or Risk Waiver of All Objections, Including Privilege!

Sometimes we lawyers take discovery deadlines lightly. So what’s the worst that can happen? Opposing counsel files a motion to compel discovery, and the Court enters an order compelling discovery?

An unpublished opinion filed by the Court of Appeals on April 19, 2022, points out the danger of taking discovery deadlines lightly. The case is Warren Paul Kean v. Amy Delene Kean, 2022-NCCOA-275. On March 6, 2020, Plaintiff served Defendant with interrogatories and a request for documents. Due to the Chief Justice’s extensions of filing deadlines due to Covid-19, Defendant’s discovery responses were due by June 1, 2020. However, Defendant did not respond to the discovery requests by June 1, nor did she file a motion with the trial court seeking a further extension of the deadline.

On June 10, 2020, Plaintiff moved to compel Defendant’s discovery responses and noticed the motion for hearing on July 20, 2020. Defendant hired new counsel who served responses to the discovery requests on July 2, 2020, including general and specific objections based on attorney-client privilege and work-product immunity.

Plaintiff’s motion to compel came on for hearing on August 24, 2020. The trial court ruled that Defendant had waived all objections to the discovery requests, including objections based on attorney-client privilege and work-product immunity by her failure to respond timely. Defendant appealed.

The Court of Appeals first held that the order specifying that Defendant had waived all objections to the discovery requests by her failure to respond to the discovery on time was, although interlocutory, immediately appealable because it affected a substantial right. (It was important that Defendant had asserted general and particular objections based on attorney-client privilege and work-product immunity. The Court said that general blanket objections purporting to assert attorney-client privilege or work-product immunity to all of the opposing party’s discovery requests do not establish a substantial right to an immediate appeal.)

The Court of Appeals affirmed the trial court’s order and held that the trial court did not abuse its discretion in ruling that the Defendant had waived all objections, including privilege and work-product immunity. The Court said that Civil Procedure Rule 33 (Interrogatories) requires that answers and objections, if any, shall be timely served (same with Rule 34 (Production of Documents)). Although these rules do not provide for automatic waiver based on untimely responses, the Court said it is well-established in our case law that failure to timely object to discovery requests is a waiver of any objection, including objections based on attorney-client privilege and work-product immunity.

So what’s the worst that can happen to you if you fail to timely respond to discovery? It’s not just an order to compel discovery responses. It could be much worse.