Ditch the Boilerplate and Improve Your Discovery Objections

Ditch the Boilerplate and Improve Your Discovery Objections

In 2015, the Rules Committee updated the Federal Rules of Civil Procedure to, among other changes, require more specificity when objecting to discovery requests. Revised Federal Rule of Civil Procedure 34 requires quick response to requests for production, specific objections to such requests, and increased clarity into what materials are being produced or withheld. The revisions, it was hoped, would particularly reduce the reliance on boilerplate and form objections to discovery.

Since then, the updated Rule has started to slowly influence discovery practices, though perhaps not as quickly as some would wish. Thankfully, for those still coming up to speed, there are now resources available to help litigators kick their old habits and adapt to the new requirements.

From Widespread Practice to Sanctionable Conduct

Decade’s old practices don’t change in an instant and when the 2015-amendments were released, many attorneys failed to update their approaches in turn--to the occasional consternation of those on the bench.

The first notable expression of judicial frustration occurred in February, 2017, when U.S. Magistrate Judge Andrew J. Peck issued a “wake up call to the bar,” saying the time had come for attorneys to toss aside their traditional boilerplate. “It is time for all counsel to learn the now-current Rules and update their 'form' files,” Judge Peck wrote. The consequence of failing to do so, the judge warned, would be waiver of all discovery objections.

Not long after, Judge Mark W. Bennett went further, in Liguria Foods, Inc. v. Griffith Labs, Inc,  C 14-3041-MWB (N.D. Iowa Mar. 13, 2017). In an ALL-CAPS ADMONITION, Judge Bennett exhorted:

No more warnings. In the future, using “boilerplate” objections to discovery in any case before me places counsel and their clients at risk for substantial sanctions.  (Caps lock removed.)

Indeed, Judge Bennett encouraged other judges to take a similar approach and urged lawyers on the receiving end of such objections to, should the objections not be withdrawn, “go to the court and seek relief in the form of significant sanctions,” citing “the significant body of cases that condemn the ‘boilerplate’ discovery practice”—cases Judge Bennett had helpfully detailed in his own opinion.

It didn’t take too long for at least one judge, and the attorneys before him, to take the advice.  At the beginning of 2018, Judge Robert H. Cleland, of the Eastern District of Michigan, imposed sanctions for the use of boilerplate objections in the case of Wesley Corporation v. Zoom T.V. Products. Facing a request for production, the defendants, accused of selling unauthorized stuffed-hamburger products, responded with:

ZOOM objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving its objection, ZOOM indicates it does not have any responsive documents within its possession, custody and control.

The defendants, the court noted, “repeat the same objection to nearly every request for production. Defendants also repeat the same objection to nearly every interrogatory.” Such objections, lacking explanation and specificity, warranted a sanction of attorney’s fees, the Judge Cleland concluded, both due to the defendants’ discovery conduct and “in light of the need to deter future use of boilerplate.”

Improving Your Objections

For legal professionals looking to update their objections for this new(ish) age, the Sedona Conference recently released a valuable resource. The Conference’s new “Federal Rules of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” lays out a host of advice, covering everything from what to cover in your meet and confer, to how to craft a request for production, as well as how to object to those requests.

For those who need exemplars, the primer sets forth a “not that, this” approach to several general objections. For example, for a disfavored general objection as to time period and date range, a party might respond with something like “Company A objects to these Requests to the extent they are not limited in time.”

Consider instead, the primer urges, “The Requests do not specify the date range for the requested production. Unless otherwise stated in the response below, Company A will search for responsive documents between January 1, 2014, the date the contract negotiations began, and June 1, 2014, the date the contract was executed.”

Model objections are provided for general privilege objections, confidentiality objections, and objections to overbreadth.

For boilerplate objections, the Conference has the following recommendations:

Ditch “to the extent that”

It’s common for parties to object to a RFP “to the extent that the request is overbroad, unduly burdensome, seeking information not relevant to the claims or defenses,” and on and on. But, indeed, to what extent does a request tick those forbidden boxes? Such objections give no guidance. Instead, the objecting party should identify which parts of the request are objectionable, explain why, and indicate those parts which are not objectionable.

Identify third parties out of your control

Another example of common boilerplate involves objecting to a request because it “seeks documents in the possession of third parties, over which [the producing party] has no control.” Like everywhere else, be specific. State what requests seek information outside of the responding party’s control.

Stop reserving nonexistent rights

Attempting to “reserve all objections” or stating that responses “shall not be construed as an admission” does, well, very little. As the primer notes, “Either the Rules or case law give a party a right or they do not, but reserving a right in a discovery response is not likely to create a right where none existed previously.”

Of course, this isn’t as easy as simply repeating the same objection ad nauseam. But it is less likely to get you sanctioned.

The new primer should be considered a key reference point to any legal professional regularly engaging in discovery. You can get your copy of it here. For further eDiscovery resources, read Logikcull’s “Ultimate Guide to eDiscovery” or review our white papers and eBooks here.

This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.

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