Why Do Lawyers Still Make Boilerplate Objections to Civil Discovery?

I recently reviewed discovery objections and responses in a straightforward federal action valued in the mid-six figures. The objections were both “general” and “specific.” General objections included the following:

  • “Object to the extent the requests seek to impose obligations on the respondent beyond those imposed by the Rules.”
  • “Object to the extent the requests seek documents protected by the attorney-client privilege, the work product doctrine or any other applicable provision.”
  • “Object to the extent the requests seek documents that are not relevant, are not reasonably calculated to lead to the discovery of admissible evidence and/or are not within respondent’s possession, custody or control.”
  • “Object to the extent the requests call for legal conclusions.”

Specific objections included “vague and ambiguous,” “overbroad,” “unduly burdensome,” “terms are undefined,” “calls for a legal conclusion,” “interrogatory is premature because suit has just begun, and investigation is ongoing,” “not reasonably calculated to lead to the discovery of admissible evidence,” and “requests information already in Plaintiff’s possession.” None of these objections was explained.

Why do lawyers still file general objections and unsupported specific objections to discovery requests? The law is clear: Boilerplate objections are disallowed. Rule 33(b)(4) has long required that “the grounds for objecting to an interrogatory must be stated with specificity,” and Rule 34(b)(2)(B) now requires that “for each item or category [of documents requested], the response must 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.” As U.S. District Court Judge Mark Bennett observed in the 2017 case of Liguria Foods, Inc. v Griffith Laboratories, “[t]he key requirement in both Rules 33 and 34 is that objections require ‘specificity.’” Quoting from one of his prior cases, Judge Bennett continued, “the mere statement by a party that the interrogatory . . . was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection.” Magistrate Judge Cheryl Zwart made a similar statement in the 2017 case of Sagness v. Duplechin: “General blanket objections do not meet [the discovery rules’] specificity requirements and will be disregarded by this court.”

Thus, (with a few exceptions) only specific objections are allowed, and each must be explained. For example, an assertion of “burdensomeness” should be supported by an explanation of why it would be burdensome to respond to the request (e.g., so many man-hours needed to cull the information, at x cost per man-hour, in a case worth less than that). If a request is allegedly vague or ambiguous, state why. If the respondent, in objecting on the ground of “prematurity,” really means that only partial information is available because discovery is unfolding, then provide the information that you have, and supplement later as the rules require. Further, “not reasonably calculated to lead to the discovery of admissible evidence” misstates the Rule 26(b)(1) standard for discoverability, which is now “relevan[ce] to any party’s claim or defense and proportional to the needs of the case.”

A number of judges have suggested reasons why lawyers continue to ignore the discovery rules’ specificity requirement when making objections: their inexperience; they were trained and have always done it that way; their adversaries do the same thing; they fear waiver of some objection for failure to make it at the first opportunity; the (erroneous) assumption that the adversarial system requires it; and law schools’ failure to teach the rules adequately. Another reason given is the failure of courts to enforce the rules, but that is changing.

For example, in a 2017 case, Fischer v. Forrest, Magistrate Judge Andrew Peck began his opinion by writing, “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District.” He then enumerated the 2015 amendments to the discovery rules, emphasizing the need for specificity in objections. He concluded his opinion by stating that, “[f]rom now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).” Other courts (Magistrate Judge Zwart in Sagness, for one) have begun to impose financial sanctions for violations, and why not? The 2015 amendments provide clear guidance on the proper way to object. The standards free us from old habits and provide a template for meaningful advancement of the litigation on the merits. With that reasoning and motivation, what excuse can there be for noncompliance with these rules?

 

Charles S. Fax is an associate editor for Litigation News.


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