Cheryl Clayton, P.C

Cutting Through The Confusion

Cutting through the confusion relating to 2017 Oklahoma Discovery Code amendments

The 2017 amendments to the Oklahoma Discovery Code make it more consistent with the 2015 amendments to the discovery provisions of the Federal Rules of Civil Procedure.  The purpose of the federal amendments was to limit the costs and scope of discovery to prevent discovery over-use.

Section 3226 (B)(1)(a) defining the Oklahoma scope of discovery adopts the federal proportionality rule and allows discovery regarding any matter, not privileged, which is relevant to any party’s claim or defense, reasonably calculated to lead to the discovery of admissible evidence and proportional to the needs of the case, considering (1) the importance of the issues at stake in the action, (2) the amount in controversy, the parties’ relative access to relevant information, (3) the parties’ resources, (4) the importance of the discovery in resolving the issues, and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.

The new language removes from the scope of discovery “any matter, not privileged, which is relevant to the subject matter involved in the pending action”.  Now the scope is “any matter, not privileged, which is relevant to any party’s claim or defense.”  Attorney’s boilerplate discovery objections should be modified accordingly. 

The new law outlaws the all too common boilerplate objections that requests “are overbroad, unduly burdensome, oppressive, and not reasonable calculated to lead to the discovery of admissible evidence.”  Under 3226(B)(2)(c) an objection shall state whether any responsive materials are being withheld on the basis of an objection.  This will cure the problem caused by a boilerplate objection where the responding attorney nonetheless produces some documents but leaves the requesting attorney with lack of clarity about whether documents are being withheld based on the objection.  There is no requirement for a log or list of documents being withheld – an uncertainty which will no doubt be the subject of future discovery disputes. 

Section 3234 relating to document production is currently confusing because it contains two versions of the statute.  Version 1, House Bill 1570, and Version 2, Senate Bill 661, were signed into law the same day and contain conflicting provisions.

Version 1 of Section 3234(B)(2)(b) reads: “For each item or category, the response shall either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production shall be completed no later than the time for inspection specified in the request, or another reasonable time specified in the response.” 

Each of the above sentences is significant.  The first sentence prohibits typical boilerplate objections by requiring grounds and reasons for objecting to production.  The second sentence gives a party the right to produce documents instead of allowing inspection.  And the third sentence gives the responding party the right to set its own reasonable time for responding to the request instead of producing documents within the 30 days requested by the opposing party. 

Version 2 of Section 3234 contains the old language that a response shall state, with respect to each item or category, that inspection and related activities shall be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.  I predict that the confusion between two conflicting versions will be eliminated during the next general session and that Version 1 will win out as the sole version.

The timing of discovery has also changed.  Interrogatories, requests for production (Version 1), and demand for admissions cannot be served, absent court order or agreement of parties, until after the party has filed an answer in the case.  The allowance of 45 days to respond to discovery served with the petition has been eliminated.  The requirement to respond with 30 days, absent court order otherwise, remains as to interrogatories or demand for admissions but, as stated above, a responding party can set a reasonable time for responding to production requests.