Old Habits Die Hard

• Pages: 20-20
• Date: 01 July 2022
• Author: Brian A. Zemil
• Subject Matter: Civil Law

More than six years have passed since the

2015 amendments to the Federal Rules

of Civil Procedure prohibiting boilerplate

language in discovery. Still, many lawyers

habitually engage in practices that evade

and obstruct the free ow of discovery, trivialize professional

obligations, and result in unnecessary motion practice. The

rule changes represent a form of intervention, seeking to

break the boilerplate addiction by ushering in tailored and

proportional discovery practices. Under Rules 33 and 34,

boilerplate objections are forbidden—and sanctionable—

under Rule 26(g) and Rule 37(a)(5). Case law highlights the

bar’s slow transformation to more meaningful discovery

exchanges within the letter and spirit of the current rules.

Various courts’ responses to boilerplate violations provide

guidance on best anti-boilerplate practices.

“Boilerplate” refers to a generalized template response to

a discovery request that states the legal grounds for an objec-

tion without specifying precisely how the request is decient

or harmful. These responses include hollow terms pasted as

“general objections” in introductory sections or repeated in

each answer. Boilerplate objections are followed by clauses

like “subject to and without waiving” the objections.

Rule 26(g) attacks the boilerplate culture by mandating

sanctions. This rule applies to every disclosure and every

document, requiring an attorney to certify that the request

or response or objection is “consistent with the rules.. ..”

Sanctions under Rule 26(g) are mandatory, and the court’s

discretion is limited to the sanction to be imposed.

Boilerplate objections also violate Rule 33, which requires

interrogatory objections to be stated with “specicity,”

explaining the basis and justication for each objection. The

2015 amendments to Rule 34 adopted the specicity lan-

guage of Rule 33, targeting boilerplate burden- and scope-

based objections. Rule 34 also requires that an objection

“state whether any responsive materials are being withheld

on the basis of that objection,” preventing a responding party

from hiding behind “subject to” objections. The requirement

to describe materials withheld has a corollary in Rule 26(b)(5),

which requires that information withheld on the basis of priv-

ilege must be identied in a privilege log.

Courts discourage the use of “general objections” because

(1) their overbreadth prevents the requesting party from identi-

fying what is being responded to and what is not; (2) they cre-

ate uncertainty as to what is being withheld on the basis of an

objection, precluding a meaningful “meet and confer” negotia-

tion process; and (3) they allow “the producing party a degree

of control over the discovery process not intended by the federal

discovery rules.”

Courts reject “cut-and-paste” objections, issuing orders

admonishing the parties to tailor discovery. In Lopez v.

Don Herring Ltd., the plaintiff’s response to the defendant’s

requests asserted a preliminary list of general objections.

The plaintiff then repeated—34 times—the same boilerplate

objection: “Plaintiff further objects to this request as overly

broad, unduly burdensome, vague, ambiguous, and not rea-

sonably calculated to lead to the discovery of admissible evi-

dence.” The plaintiff complained that the defendant had used

the same boilerplate language. The court directed the parties

to bear their own costs and fees, ordered the plaintiff to le

complete responses without objection, and reprimanded both

parties to cease and desist from future boilerplate practices.

Some courts have awarded attorney fees or deemed certain

objections waived based on boilerplate practices. In Wesley

Corporation v. Zoom T.V. Production, LLC, the defendants

objected, without explanation, that nearly all the plaintiff’s

requests for production were “vague, overly broad, unduly

burdensome, harassing, and/or seeking information that is irrel-

evant.” The court explained, “When objections lack specicity,

they lack effect: An objection that does not explain its grounds

(and the harm that would result from responding) is forfeited.”

In Mitchell v. Capital Records, LLC, the defendants

repeatedly asserted boilerplate responses objecting to requests

for production on the basis of attorney-client privilege or

work-product doctrine and on the basis of proportionality.

The responses did not identify what, if any, documents they

were withholding as privileged, nor did they explain how the

requests were disproportionate.The court granted the plain-

tiff’s motion to compel and request for attorney fees and con-

cluded that, because of the frivolous nature of the defendants’

objections, the defendants had waived their attorney-client

privilege, work-product doctrine, and proportionality objec-

tions for those requests.

These decisions tell litigators to use specic, not “general

objections.” When asserting objections, identify the trouble-

some phrase at issue and either request to “meet and confer”

or identify a reasonable construction and response. Similarly,

when objecting to a request as overbroad, propose a nar-

rower scope. Lastly, a response indicating that documents

related to X dates or Y matter will be produced will notify

the opposing party which documents are being withheld.

RESOURCES

Spendlove v. Ra pidCourt, 2019 U.S . Dist. LEXIS 22 0392, No. 3:18-

cv-856 (E .D. Va. Dec. 23, 201 9).

Lopez v. Don He rring Ltd., 327 F.R.D. 567 (N .D. Tex. 2018).

Wesley Corp. v. Zoo m T.V. Prod., LLC, N o. 17-10021 (E.D. Mic h. Jan.

11, 2018).

Mitchell v. Cap ital Records, LLC, No . 3:15-CV-00174-JH M (W.D.

Ky. Apr. 30, 2018).

Digital versio ns of all Civil Procedur e stories, including lin ks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

Old Habits Die Hard

By Brian A. Zemil , Litigation News As sociate Editor

20 | LITIGATION SECTI ON

Published in Litigation News Volume 47, Number 4, Summer 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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