chevron-down Created with Sketch Beta.

Litigation News

Litigation News | 2022

Old Habits Die Hard

Brian Alain Zemil


  • The use of boilerplate language in discovery practices by lawyers continues despite rule changes prohibiting it.
  • Courts discourage boilerplate objections due to their overbreadth and lack of specificity, and sanctions have been imposed for such practices.
  • Best practices to avoid boilerplate objections include using specific objections, engaging in meaningful negotiation, and providing clear responses regarding withheld materials.
Old Habits Die Hard
AsiaVision via Getty Images

Jump to:

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 flow 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 objection without specifying precisely how the request is deficient 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 “specificity,” explaining the basis and justification for each objection. The 2015 amendments to Rule 34 adopted the specificity language 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 privilege must be identified in a privilege log.

Courts discourage the use of “general objections” because (1) their overbreadth prevents the requesting party from identifying what is being responded to and what is not; (2) they create uncertainty as to what is being withheld on the basis of an objection, precluding a meaningful “meet and confer” negotiation 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 reasonably calculated to lead to the discovery of admissible evidence.” 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 file 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 irrelevant.” The court explained, “When objections lack specificity, 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 plaintiff’s motion to compel and request for attorney fees and concluded that, because of the frivolous nature of the defendants’ objections, the defendants had waived their attorney-client privilege, work-product doctrine, and proportionality objections for those requests.

These decisions tell litigators to use specific, not “general objections.” When asserting objections, identify the troublesome 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 narrower 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.