The Death of Boilerplate Discovery Objections In Federal Court

The days of filling the first 10 pages of a written discovery responses with boilerplate objectionsare coming to an end. At least for federal litigators.

Two highly respected and influential federal judges are leading the charge: SDNY Magistrate Judge Andrew Peck and N.D. Iowa Judge Mark Bennett.

The use of boilerplate objections has never been allowed under the Federal Rules of Civil Procedure. It seems, however, that the 2015 amendments to the rules have woken sleeping giants and filled them with a terrible resolve. Thus, litigators ignore what our federal judges are telling us at our peril (and the peril of our clients).

Judge Peck fired the first major salvo of 2017on February 28th in Fischer v. Forrest,_ F. Supp. 3rd _, ___, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017).

InFischer Judge Peck outlines the proper way to make an Objection under Rule 34(b)(2)(B)-(C) and threatens to findcomplete waiver of all objections, save onlyprivilege, if federal litigators appearing in the Southern District of New York fail to follow his directives.

Here is how Judge Peck begins his opinion:

"It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:

* State grounds for objections with specificity;

* An objection must state whether any responsive materials are being withheld on the basis of that objection; and

* Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.

Most lawyers who have not changed their "form file" violate one or more (and often all three) of these changes."

At the end of the opinion, Judge Peck issued the following threat of waiver:

The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now15 months old. It is time for all counsel to learn the now-current Rules and update their "form" files. From 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).

In isolation, it might be possible to conclude that only the New York lawyers need to be worried about Judge Peck's theme and threats. That would be the wrong conclusion. Other federal judges are speaking with even more strident voices about the proper state of play as it existed even before the 2015 amendments: On March 13, 2017, Judge Mark Bennett of the N.D. Iowa issued what can only be called a stinging bench-slap to both sides in Liguria Foods, Inc. v. Griffith Laboratories, Inc.,2017 BL 78800, N.D. Iowa, No. C 14-3041, 3/13/17).

The Liguria Foods opinion is lengthy but here are a few of the key take-aways:

“Obstructionist discovery responses” in civil cases are a “menacing scourge” that must be met in the future with “substantial sanctions.”

Attorneys are addicted to “repetitive discovery objections” that are “devoid of individualized factual analysis."

“Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the ‘boilerplate’ discovery culture and do our part to solve this cultural discovery ‘boilerplate’ plague.”

Only by “imposing increasingly severe sanctions” will judges begin to change the culture of discovery abuse.

This Liguria Foods opinion is full of colorful language, not only about bad forms, but also over-contentious litigation. It is becoming clear that Judges everywhere are tired of the form objections most attorneys still use, especially if they don't conform to new rules (or any rules).

Judge Bennett's analysis points to many form objections, including Interrogatory objections (not just those saying "overbroad" that were discussed by Judge Peck under Rule 34 inFischer). Here are a few general boilerplate objections that Judge Bennett condemns, whichwill look familiar to all litigators:

• Objection "to the extent they seek to imposeobligations on it beyond those imposed by the Federal Rules of Civil Procedureor any other applicable rules or laws."
• Objection "to the extent they call for documents protected by the attorney-client privilege, the work product rule, or any other applicable privilege."
• Objection "to the extent they request the production of documents that are not relevant, are not reasonably calculated to lead to the discovery of admissibleevidence or are not within theirpossession, custody and control."
• Objection "overbroad, unduly burdensome"
• Objection "insofar as they seek informationthat is confidential or proprietary."
• "subject to [and without waiving] itsgeneral and specific objections"
• Objection "as the term(s) [X and Y] are notdefined."

Judge Bennett provides perhaps the best summary of any judge to date regarding the illness of "boilerplate addiction" and how it has become a "menacing scourge:"

This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to "boilerplate" discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.

Indeed, obstructionist discovery practice is a firmly entrenched "culture" in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them. As I remarked at an earlier hearing in this matter, "So what is it going to take to get . . . law firms to change and practice according to the rules and the cases interpreting the rules? What's it going to take?"

On January 27, 2017, I entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing. In the Order To Show Cause, I directed that every attorney for the parties who signed a response to interrogatories or a response to a request for documents in this case, with the exception of local counsel, appear and show cause, at a hearing previously scheduled for March 7, 2017, why he should not be sanctioned for discovery abuse."

[Judge Bennett held a long evidentiary hearing, during which he questioned many lawyers for both sides under oath, before issuing his Opinion. This evidentiary hearing lead to the following damningobservations about the habitual practices of federal litigators]:

As to the question of why counsel for both sides had resorted to "boilerplate" objections, counsel admitted that it had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the "culture" that routinely involved the use of such "standardized" responses. Indeed, one of the attorneys indicated that some clients—although not the clients in this case—expect such responses to be made on their behalf. I believe that one of the attorneys hit the nail squarely on the head when he asserted that such responses arise, at least in part, out of "lawyer paranoia" not to waive inadvertently any objections that might protect the parties they represent. Even so, counsel for both parties admitted that they now understood that such "boilerplate" objections do not, in fact, preserve any objections. Counsel also agreed that part of the problem was a fear of "unilateral disarmament." This is where neither party's attorneys wanted to eschew the standard, but impermissible, "boilerplate" practices that they had all come to use because they knew that the other side would engage in "boilerplate" objections. Thus, many lawyers have become fearful to comply with federal discovery rules because their experience teaches them that the other side would abuse the rules. Complying with the discovery rules might place them at a competitive disadvantage."

See also The Security National Bank of Sioux City, Iowa v. Abbott Labs, No. 5:11-cv-4017-MWB (N.D. Iowa 07/28/14) ("Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught").

In the closing sentence of the Liguria Foods Opinion, Judge Bennett clicked "caps lock" and "bold"to issue the following unequivocal warning:

“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.”

Bottom line: Stop makingboilerplate general objections or risk the wrath of your local federal judge. And if you have already made such objections in a pending case, consider immediately amending your objections. Tonight Magistrate Judges throughout the country are reading Fisher and Liguria Foods and deciding which case pending on their dockethas alawyer best suited to suffer a "wake up call" directed at the local bar writ large. You do not want to be that lawyer.