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BOILERPLATE DISCOVERY OBJECTIONS, Schemes and Mind Maps of Law

Law

Responses to requests for production and interrogatories are often littered with trite objections like “Objection: overbroad, irrelevant, privileged”—objections ...

Typology: Schemes and Mind Maps

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Jarvey 8.2 (Do Not Delete) 5/30/2013 4:53 PM
913
BOILERPLATE DISCOVERY OBJECTIONS:
HOW THEY ARE USED, WHY THEY ARE
WRONG, AND WHAT WE CAN DO ABOUT
THEM
ABSTRACT
Boilerplate discovery objections infect pretrial documents in most modern
civil litigation. Responses to requests for production and interrogatories are
often littered with trite objections like “Objection: overbroad, irrelevant,
privileged”—objections low on detail and high on obstruction. The law
repudiates these objections, courts despise them, and litigants pay (literally and
figuratively) for them. Yet these objections persist. Why? At what cost? And
most importantly, what can we do to curb their use? This Note addresses these
questions—and more—analyzing federal law regarding boilerplate objections. It
also proposes creative solutions to remedy the rampant use of boilerplate
objections, including a modern twist on a nineteenth century literary
punishment.
TABLE OF CONTENTS
I. Introduction ........................................................................................... 914
II. The Law of Boilerplate Objections ..................................................... 916
A. Boilerplate Objections Violate Rules of Civil Procedure
and Ethics ....................................................................................... 919
1. The Spirit of the Federal Rules of Civil Procedure .............. 919
2. Rule 26 ....................................................................................... 920
3. Rule 33 ....................................................................................... 922
4. Rule 34 ....................................................................................... 922
5. Ethics Rules .............................................................................. 923
B. Some Common Misconceptions ................................................... 925
III. The Costs of Boilerplate Objections ................................................... 927
IV. Proposed Solutions ............................................................................... 931
A. Increased Scrutiny by Judges ........................................................ 931
B. Publicizing Discovery Abusers ..................................................... 934
V. Conclusion ............................................................................................. 936
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BOILERPLATE DISCOVERY OBJECTIONS:

HOW THEY ARE USED, WHY THEY ARE

WRONG, AND WHAT WE CAN DO ABOUT

THEM

ABSTRACT

Boilerplate discovery objections infect pretrial documents in most modern

civil litigation. Responses to requests for production and interrogatories are

often littered with trite objections like “Objection: overbroad, irrelevant,

privileged”—objections low on detail and high on obstruction. The law

repudiates these objections, courts despise them, and litigants pay (literally and

figuratively) for them. Yet these objections persist. Why? At what cost? And

most importantly, what can we do to curb their use? This Note addresses these

questions—and more—analyzing federal law regarding boilerplate objections. It

also proposes creative solutions to remedy the rampant use of boilerplate

objections, including a modern twist on a nineteenth century literary

punishment.

TABLE OF C ONTENTS

I. Introduction ...........................................................................................

II. The Law of Boilerplate Objections .....................................................

A. Boilerplate Objections Violate Rules of Civil Procedure

and Ethics .......................................................................................

1. The Spirit of the Federal Rules of Civil Procedure..............

2. Rule 26.......................................................................................

3. Rule 33.......................................................................................

4. Rule 34.......................................................................................

5. Ethics Rules ..............................................................................

B. Some Common Misconceptions ...................................................

III. The Costs of Boilerplate Objections ...................................................

IV. Proposed Solutions ...............................................................................

A. Increased Scrutiny by Judges........................................................

B. Publicizing Discovery Abusers .....................................................

V. Conclusion .............................................................................................

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914 Drake Law Review [Vol. 61

“If there is a hell to which disputatious, uncivil, vituperative lawyers go,

let it be one in which the damned are eternally locked in discovery disputes

with other lawyers of equally repugnant attributes.”^1

I. INTRODUCTION

“Formal discovery under the Federal Rules of Civil Procedure is one

of the most abused and obfuscated aspects of our litigation practice.” 2 One

of the most rampant abuses of the discovery process is the use of

boilerplate objections to discovery requests. 3 Usually, boilerplate

objections are found in responses to interrogatories under Federal Rule of

Civil Procedure 33,^4 or in requests for production of documents under

Federal Rule of Civil Procedure 34.^5 But they can be found in nearly any

pretrial document that might contain an objection. 6

The hallmark of a boilerplate objection is its generality. The word

“boilerplate” refers to “trite, hackneyed writing” 7 —an appropriate

definition in light of how boilerplate objections are used. An objection to a

discovery request is boilerplate when it merely states the legal grounds for

the objection without (1) specifying how the discovery request is deficient

and (2) specifying how the objecting party would be harmed if it were

forced to respond to the request. 8 For example, a boilerplate objection

might state that a discovery request is “irrelevant” or “overly broad”

  1. Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24,
  1. (order denying motion to dismiss)) (internal quotation marks omitted).
  1. Francis E. McGovern & E. Allan Lind, The Discovery Survey , 51 LAW & CONTEMP. P ROBS. 41, 41 (1988).
  2. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990) (noting that boilerplate objections are an “all-too-common” practice in the legal profession).
  3. F ED. R. CIV. P. 33; see also, e.g. , Design Basics, L.L.C. v. Strawn, 271 F.R.D. 513, 518–19 (D. Kan. 2010) (recognizing a plaintiff’s objections to interrogatories and requests for production were boilerplate objections).
  4. F ED. R. CIV. P. 34; see also, e.g. , St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 512 (N.D. Iowa 2000) (sanctioning a lawyer for using boilerplate objections in response to requests for production of documents).
  5. See, e.g. , Holifield v. United States, 909 F.2d 201, 204 (7th Cir. 1990) (noting that boilerplate, or “blanket,” objections raised in a petition to quash an IRS summons “will not suffice”).
  6. R ANDOM H OUSE, WEBSTER’ S U NABRIDGED D ICTIONARY 234 (2d ed. 2001).
  7. St. Paul Reinsurance Co. , 198 F.R.D. at 512.

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916 Drake Law Review [Vol. 61

of the federal courts’ extreme disfavor of these objections.^14

The problems with using boilerplate objections, however, run deeper

than their form or phrasing. Their use obstructs the discovery process,

violates numerous rules of civil procedure and ethics, and imposes costs on

litigants that frustrate the timely and just resolution of cases. Still, “old

habits die hard,” 15 and boilerplate objections remain rampant. 16 In order to

combat the problem of boilerplate objections, attorneys and judges alike

must commit to increasing their scrutiny of these objections, as well as to

imposing new, creative costs on those who abuse discovery by issuing

boilerplate objections.

II. THE LAW OF BOILERPLATE OBJECTIONS

Federal courts have long disfavored boilerplate objections. 17 District

courts often repeat the warning: “Boilerplate, generalized objections are

inadequate and tantamount to not making any objection at all.”^18 The

warning reflects the resounding sentiment that boilerplate objections are

legally improper, regardless of their practical consequence. 19 While the

lion’s share of the case law condemning boilerplate objections comes from

district courts (the courts charged with overseeing discovery), several

  1. See St. Paul Reinsurance Co. , 198 F.R.D. at 512.
  2. MICK JAGGER & D AVE S TEWART , O LD H ABITS D IE H ARD (EMI Records Ltd. 2004).
  3. See McLeod, Alexander, Powel & Apffel , 894 F.2d at 1486 (noting that boilerplate objections are an “all-too-common” practice in the legal profession).
  4. St. Paul Reinsurance Co. , 198 F.R.D. at 512 (“[F]ederal courts have routinely deemed [boilerplate objections] to be improper objections.”).
  5. Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999) (citations omitted); accord Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) (“[J]udges in this district typically condemn boilerplate objections as legally inadequate or meaningless.” (citations omitted) (internal quotation marks omitted)); Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., No. 09-CV-11783, 2011 WL 669352, at *2 (E.D. Mich. Feb. 17, 2011) (refusing to consider “[b]oilerplate or generalized objections”).
  6. Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 379–80 (C.D. Cal. 2009) (“Even if not waived, such unexplained and unsupported boilerplate objections are improper.” (citations omitted)); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358– (D. Md. 2008) (“[B]oilerplate objections... persist despite a litany of decisions from courts... that such objections are improper unless based on particularized facts.” (citations omitted)); A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“As an initial matter, general or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” (citations omitted)).

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2013] Boilerplate Discovery Objections 917

circuit courts have also spoken out against the use of these objections.^20

Rather than merely stating a tagline, objections to discovery requests

must be stated with particularity.^21 This is because objecting parties bear

the burden of demonstrating why their objections are proper.^22 Objecting

parties must “provide sufficient information to enable other parties to

evaluate the applicability of [their claims]” 23 and “must show specifically

  1. See Bess v. Cate, 422 F. App’x 569, 572 (9th Cir. 2011) (noting that it is “well-established law that parties seeking to invoke privileges are not permitted to provide mere blanket objections to discovery requests”); Steed v. EverHome Mortg. Co., 308 F. App’x 364, 371 (11th Cir. 2009) (“We have noted that boilerplate objections may border on a frivolous response to discovery requests.” (citing Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1358 (11th Cir. 1997))); Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (“We hold that boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege.”); Abraham v. Cnty. of Greenville, 237 F.3d 386, 392 (4th Cir. 2001) (finding it was not an abuse of discretion for the district court to hold that boilerplate objections constituted no response under Federal Rule of Civil Procedure 37); McLeod, Alexander, Powel & Apffel , 894 F.2d at 1485 (holding that boilerplate objections are not sufficient to voice a successful objection to requests for production); Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (“To be adequate, objections which serve as the basis of a motion for protective order under [Federal Rule of Civil Procedure] 26 should be plain enough and specific enough so that the court can understand in what way the interrogatories are alleged to be objectionable.” (quoting Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)) (internal quotation marks omitted) (citing Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982))); Josephs , 677 F.2d at 992 (“However, the mere statement by a party that the interrogatory was ‘overly broad, burdensome, oppressive and irrelevant’ is not adequate to voice a successful objection to an interrogatory. On the contrary, the party resisting discovery must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.” (alteration in original) (quoting Roesberg v. Johns- Manville Corp., 85 F.R.D. 292, 296–97 (E.D. Pa. 1980)) (internal quotation marks omitted)); cf. Holifield v. United States, 909 F.2d 201, 204 (7th Cir. 1990) (holding that it is insufficient to use general privilege assertions in attempting to quash an IRS summons). But see Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 139 (3d Cir. 2009) (holding that “the legitimacy of a general objection” depends on its context, and general objections are only improper under the Federal Rules if “interposed in an attempt to insulate from discovery a large quantity of material that includes otherwise discoverable material when only some of the material may be protectible”).
  2. Josephs , 677 F.2d at 992; see F ED. R. CIV. P. 26(b)(5); F ED. R. CIV. P. 33(b)(4); F ED. R. CIV. P. 34(b)(2); see also St. Paul Reinsurance Co. , 198 F.R.D. at 512 (noting that the boilerplate objections offered failed to articulate any particular harm).
  3. See, e.g. , St. Paul Reinsurance Co. , 198 F.R.D. at 511 (citing Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997)).
  4. Burlington N. & Santa Fe Ry. Co. , 408 F.3d at 1148 (quoting F ED. R. C IV. P. 26 advisory committee’s notes (1993), subdiv. (b)(5)) (internal quotation marks

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2013] Boilerplate Discovery Objections 919

disputes on their own, and often requires the requesting party to draft

additional, unnecessary motions before receiving a meaningful response.^34

Federal courts’ disfavor for boilerplate objections stems from more

than the practical obstacles posed by these objections. Boilerplate

objections also violate numerous rules of civil procedure and ethics,

making their use unlawful as opposed to merely inconvenient.^35

A. Boilerplate Objections Violate Rules of Civil Procedure and Ethics

1. The Spirit of the Federal Rules of Civil Procedure

Generally, boilerplate objections do not serve the goals of the Federal

Rules of Civil Procedure, which are aimed at “secur[ing] the just, speedy,

and inexpensive determination of every action and proceeding.”^36 Federal

discovery is intended to be a liberal process, encouraging the free flow of

information between parties. 37 Under this framework, federal courts

envision ideal discovery as relatively collegial, timely, and productive:

It would be reasonable to expect, in light of all the applicable rules and

governing precedents, that experienced attorneys, especially those who

have handled major litigation, would be able to proceed through the

discovery and pretrial stages with a conciliatory attitude and a

minimum of obstruction, and that, under the guiding hand of the

district court, the path to ultimate disposition would be a relatively

smooth one.^38

Stonewalling a requesting party with boilerplate objections is inconsistent

with this vision.^39

  1. Id.
  2. See discussion infra Part II.A.
  3. F ED. R. CIV. P. 1.
  4. See F ED. R. C IV. P. 26 advisory committee’s notes (1983); United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958); Hickman v. Taylor, 329 U.S. 495, 501, 507 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”).
  5. Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 123 (3d Cir. 2009).
  6. See F ED. R. C IV. P. 26 advisory committee’s notes (1983) (“Thus the spirit of the rules is violated when advocates attempt to use... evasive responses.”); Covington v. Sailormen Inc., 274 F.R.D. 692, 693 (N.D. Fla. 2011).

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920 Drake Law Review [Vol. 61

2. Rule 26

Boilerplate objections commonly violate either of two subdivisions of

Federal Rule of Civil Procedure 26: Rules 26(b)(5) 40 and 26(g). 41

Rule 26(b)(5) governs privilege objections. 42 The rule allows parties

to withhold otherwise discoverable information from discovery if the

information is privileged or protected as trial-preparation material.^43 If a

party wishes to assert a privilege objection, Rule 26(b)(5) requires the

objecting party to describe its objection with sufficient particularity to

allow others to assess its privilege claims: 44

When a party withholds information otherwise discoverable by

claiming that the information is privileged or subject to protection as

trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or

tangible things not produced or disclosed—and do so in a

manner that, without revealing information itself privileged or

protected, will enable other parties to assess the claim. 45

Under Rule 26(b), “[t]he party who resists discovery has the burden to

show discovery should not be allowed, and has the burden of clarifying,

explaining, and supporting its objections.” 46 This burden leaves little room

for boilerplate objections. 47 Instead, the rule is intended “to permit wide-

ranging discovery of information even though the information may not be

  1. See, e.g. , Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1147–48 (9th Cir. 2005) (noting that boilerplate objections violate Rule 26(b)(5) by failing to “provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection” (citations omitted) (internal quotation marks omitted)).
  2. See, e.g. , Steed v. EverHome Mortg. Co., 308 F. App’x 364, 371 (11th Cir.
  1. (noting that “boilerplate objections may border on a frivolous response to discovery requests” in violation of Rule 26(g)).
  1. F ED. R. CIV. P. 26(b)(5).
  2. Id.
  3. See F ED. R. C IV. P. 26 advisory committee’s notes (1993), subdiv. (b).
  4. F ED. R. CIV. P. 26(b)(5)(A)(i)–(ii).
  5. United States ex rel. O’Connell v. Chapman Univ., 245 F.R.D. 646, 648 (C.D. Cal. 2007) (citations omitted); see F ED. R. CIV. P. 26(b)(1), (5).
  6. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005) (“Rule 26[(b)(5)] clarifies that a proper assertion of privilege must be more specific than a generalized, boilerplate objection.”).

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922 Drake Law Review [Vol. 61

boilerplate objections. 55

3. Rule 33

Another set of filings frequented by boilerplate objections are

responses to interrogatories, which are governed by Federal Rule of Civil

Procedure 33.^56 Like objections under Rule 26, “[t]he grounds for objecting

to an interrogatory must be stated with specificity.”^57 Boilerplate objections

will not do. 58 Instead, the rule is “clear that objections must be specifically

justified.”^59

Rule 33(b)(5) also requires lawyers to sign objections to

interrogatories. 60 This in turn exposes lawyers to the general requirements

and attendant sanctions of Rule 26(g) signatures. 61 While various courts

may impose differing sanctions, the consequences of propounding

boilerplate objections in responding to interrogatories can include judges

striking or completely disregarding the response.^62

4. Rule 34

Rule 34 governs requests for production. 63 A litigant may use this rule

to request that an opposing party produce “writings, drawings, graphs,

charts, photographs, sound recordings, images, and other data or data

  1. See discussion infra Part IV.
  2. F ED. R. CIV. P. 33.
  3. Id. at R. 33(b)(4).
  4. See Covington v. Sailormen Inc., 274 F.R.D. 692, 693–94 (N.D. Fla. 2011) (“Common sense should have been enough for [d]efendant to know that boilerplate, shotgun-style ‘General Objections,’ incorporated without discrimination into every answer, were not consistent with Fed.R.Civ.P. 33(b)(4)’s directive... .”); Hodgdon v. Nw. Univ., 245 F.R.D. 337, 340 n.4 (N.D. Ill. 2007) (“These sorts of boilerplate objections are meaningless and insufficient under Rule 33(b)(1) and (4).” (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d. Cir. 1982))).
  5. F ED. R. CIV. P. 33 advisory committee’s notes (1993), subdiv. (b).
  6. Id. at R. 33(b)(5).
  7. See id. at R. 26(g)(3); R. 33 advisory committee’s notes (1993), subdiv. (b) (“These provisions should be read in light of Rule 26(g), authorizing the court to impose sanctions on a party and attorney making an unfounded objection to an interrogatory.”).
  8. See, e.g. , Wolk v. Green, No. C06-5025 BZ, 2007 WL 3203050, at *1 (N.D. Cal. Oct. 29, 2007) (disregarding the defendant’s boilerplate objections as “insufficient to assert privilege”).
  9. F ED. R. CIV. P. 34.

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2013] Boilerplate Discovery Objections 923

compilations” for inspection. 64 Like interrogatory responses, a party served

with a request for production may object to the request, but must state the

“objection to the request, including the reasons.”^65 Notably, Rule 34(b)

does not contain any language requiring objections to be stated with

“specificity” like Rule 33(b)(4). 66 Yet, courts interpret objections under

Rule 34(b) to require the same level of care and particularity that

precludes the use of boilerplate objections.^67

5. Ethics Rules

While many courts respond to the problem of boilerplate objections

by imposing sanctions under the Federal Rules of Civil Procedure, 68

  1. Id. at R. 34(a)(1)(A).
  2. Id. at R. 34(b)(2)(B).
  3. Compare id. (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”), with id. at R. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity.”).
  4. See Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 528 (S.D.W. Va. 2007) (“There is abundant caselaw to the effect that boilerplate objections to Rule 34 document requests are inappropriate. In the first instance, specific objections are required in responding to a Rule 34 request, even though the language of Rule 34 is less explicit than Rule 33(b)(4) as to the nature of an acceptable objection.”); see also Mills v. E. Gulf Coal Preparation Co., 259 F.R.D. 118, 132 (S.D.W. Va. 2009) (“Objections to Rule 34 requests must be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable.” (citing Frontier-Kemper Constructors, Inc. , 246 F.R.D. at 528–29)); Martin v. Zale Del., Inc., No. 8:08-CV-47-T-27EAJ, 2008 WL 5255555, at *1 (M.D. Fla. Dec. 15, 2008) (“Parties are not permitted to assert these types of conclusory, boilerplate objections that fail to explain the precise grounds that make the request objectionable.”); Sabol v. Brooks, 469 F. Supp. 2d 324, 329 (D. Md. 2006) (“Unfortunately, [the party] did not particularize its objections to these [Rule 34] requests, and instead used the boilerplate objections that this Court repeatedly has warned against, thereby waiving its objections.”); St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000) (“As demonstrated, the litany of plaintiffs’ boilerplate objections [to Rule 34 requests] are unsubstantiated because they fail to show specifically how each discovery request is burdensome, oppressive or any of the other grounds upon which they base their objections by submitting affidavits or offering evidence revealing the nature of the objections.”).
  5. See, e.g. , Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 360 (D. Md. 2008) (noting that federal trial judges are “expected to impose sanctions to punish and deter” any discovery process that does not seek “to achieve a proper purpose”); In re Spoonemore, 370 B.R. 833, 843–45 (Bankr. D. Kan. 2007) (sanctioning party for obstructing discovery process with boilerplate objections by punishment of more than $10,000 in attorney’s fees); St. Paul Reinsurance Co. , 198 F.R.D. 508, 517–18.

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2013] Boilerplate Discovery Objections 925

clients and to cross-examine and otherwise test the evidence and

positions of opposing parties, without personal responsibility for the

outcome of the proceeding.

However, there are limitations on an advocate’s forensic freedom. In

addition to the general requirement of complying with legal

requirements and rulings of tribunals, a lawyer is subject to the

constraints described in this Topic concerning frivolous litigation

[which includes prohibitions against frivolous advocacy and conduct

during discovery]. 77

These provisions make it clear that attorneys do not have unfettered

licenses to engage in frivolous discovery tactics, even if such tactics arise

out of attorneys’ desire to zealously advocate for their clients. 78

B. Some Common Misconceptions

Despite the fact that boilerplate objections violate these procedural

and ethical rules, many lawyers continue to use them for various reasons.

Some lawyers issue boilerplate objections in hopes of preserving those

objections in the future.^79 But this hope is misplaced for two reasons. First,

“there is no provision in the [f]ederal [r]ules that allows a party to assert

objections simply to preserve them.” 80 Second, issuing a boilerplate

objection often results in the opposite of preservation: waiver of the

objection. 81 Thus, the “urban legend” that boilerplate objections protect a

client is unfounded:

It is somewhat of an urban legend that good lawyering always requires

an introductory, general assertion that information/materials subject to

a privilege (whatever that unidentified information or those materials

may be) are not being utilized or produced. Counsel then believe they

have protected their client by making the response unclearly based

  1. R ESTATEMENT (THIRD ) OF THE LAW G OVERNING LAWYERS ch. 7, topic 2, intro. note (citations omitted). 78_. See id._ ; MODEL R ULES OF P ROF’ L C ONDUCT R. 3.4 & cmts. 1–2; R ESTATEMENT (T HIRD ) OF THE LAW G OVERNING LAWYERS : F RIVOLOUS ADVOCACY § 110(3).
  2. See, e.g. , Anderson v. Caldwell Cnty. Sheriff’s Office, No. 1:09cv423, 2011 WL 2414140, at *3 (W.D.N.C. June 10, 2011).
  3. Id.
  4. See, e.g. , Mills v. E. Gulf Coal Preparation Co., LLC, 259 F.R.D. 118, 132 (S.D.W. Va. 2009) (“Failure to state objections specifically in conformity with the Rules will be regarded as a waiver of those objections.” (citing Sabol v. Brooks, 469 F. Supp. 2d 324, 328 (D. Md. 2006))).

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926 Drake Law Review [Vol. 61

such that additional information can later be produced, or have

protected their client from having to produce privileged

information/material. In fact, and in law, the opposite is true.^82

Similarly, many lawyers regularly use the “notwithstanding the

above” tactic in discovery responses. 83 They respond to a discovery request

with a slew of boilerplate objections followed by the phrase

“notwithstanding the above” or “subject to or without waiving the

objection,” after which they proceed to answer the request. 84 This, too, fails

to preserve the boilerplate objections “and constitutes only a waste of

effort and the resources of both the parties and the court.”^85

Instead, a correct objection to a discovery request will likely have

several specific components:

In most if not all cases, an objection to a discovery request in

conformity with the Rules will contain (1) a recital of the parties[’]

claims and defenses, (2) a summary of the applicable statutory and/ or

case law upon which the parties claims and defenses are predicated

including the elements of each claim or defense, (3) a discussion of

Court decisions considering the breadth or scope of discovery and any

limitations upon discovery in the same or a similar type of case and (4)

a statement respecting how and/or why the request seeks information

which is irrelevant or will not likely lead to the discovery of relevant

information or is vague, overly broad, burdensome or interposed for

an improper purpose.^86

These are the requirements contemplated by the Federal Rules of Civil

Procedure, and failing to adhere to them can—or, in the case of some

judges, will —be regarded as an objection waiver.^87

Finally, the fact that discovery occurs within an adversarial process

and that lawyers are to devotedly advocate for clients, are not justifications

  1. Carmichael Lodge No. 2103, Benevolent & Protective Order of Elks of U.S. of Am. v. Leonard, No. CIV S-07-2665 LKK GGH, 2009 WL 1118896, at *4 (E.D. Cal. Apr. 23, 2009).
  2. See e.g. , Martin v. Zale Del., Inc., No. 8:08-CV-47-T-27EAJ, 2008 WL 5255555, at *2 (M.D. Fla. Dec. 15, 2008); Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D. Fla. 2008) (noting the tactic is “common practice”).
  3. See Guzman , 249 F.R.D. at 401.
  4. Id.
  5. Mills , 259 F.R.D. at 132.
  6. See id.

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discovery abuses.^99 The report discussed the history of discovery

practices. 100 The first uniform civil procedure rules were adopted in the

1930s.^101 At that time, discovery was “an essentially cooperative, rule-

based, party-driven process, designed to exchange relevant information.”^102

“The goal was to avoid gamesmanship and surprise at trial.”^103 But over

time discovery became “a complicated, lengthy procedure requiring

tremendous expenditures of client funds, along with legal and judicial

resources. These costs often overshadow efforts to resolve the matter

itself.”^104

Among the overshadowing costs are those related to abusive conduct

during pretrial discovery.^105 This conduct includes “escalating motion

practice[s], overreaching, obstruction, and extensive, but unproductive

discovery disputes.” 106 Boilerplate objections certainly fit the description of

these less-than-ideal tactics. 107 These adversarial tactics—prevalent in

modern pretrial discovery—impose a “serious burden [on] the American

judicial system.” 108

These costs add to an already expensive process of discovery in

federal courts. 109 Many items sought in discovery—especially electronically

stored information—are expensive to obtain as is the entire process of

federal discovery.^110 It is partly the high cost of engaging in the discovery

process that makes federal litigation “procedurally more complex, risky to

prosecute, and very expensive”^111 —“to the point of pricing litigants out of

[federal] court.” 112 The cost of engaging in burdensome discovery can be so

  1. See THE S EDONA CONFERENCE , supra note 90. As of October 31, 2012, 135 federal judges signed on in support of the vision outlined in the Sedona Conference report. See id. at 4–12.
  2. Id. at 2.
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. Id. at 1–2.
  8. Id. at 1.
  9. See id. 108_. Id._
  10. Gregory P. Joseph, Trial Balloon: Federal Litigation—Where Did It Go Off Track? , 34 LITIG. 5, 62 (2008).
  11. See id. ; AM. C OLL. OF TRIAL LAWYERS , supra note 94, at A-4.
  12. Joseph, supra note 109, at 62.
  13. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D. Md. 2008).

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great that litigants might forgo pursuing a claim in federal court. 113 Thus,

the very process that is supposed to encourage the free flow of

information 114 might actually be turning people away in the first place.^115

A survey analyzed by the American College of Trial Lawyers Task

Force on Discovery confirms what is suggested above: Discovery is

becoming simply too costly 116 for some litigants.^117 Specifically, the survey’s

respondents paint a grim picture about their faith in the discovery process,

stating the following:

 Nearly 86% of [respondents] say discovery sanctions are

seldom imposed;

 Nearly 71% of [respondents] believe counsel use discovery as

a tool to force settlement;

 Only 34% of [respondents] think that the cumulative effect of

changes to the discovery rules since 1976 has significantly

reduced discovery abuse, and 45% of [respondents] still think

discovery is abused in every case;

 Less than 44% of [respondents] believe current discovery

mechanisms work well; and

 Only 11% of [respondents] think that clients, rather than

attorneys, drive excessive discovery. 118

While the monetary costs of boilerplate objections are high, there are

other, less visible costs that can still have a substantial impact on a lawyer’s

case. Although “[m]uch ink has been spilled on the costs of abuse of the

discovery process,” 119 relatively little attention has been paid to the

nonmonetary costs of boilerplate objections. For example, boilerplate

  1. See Joseph, supra note 109, at 62.
  2. See F ED. R. C IV. P. 26 advisory committee’s notes (1983).
  3. See Mancia , 253 F.R.D. at 359; Joseph, supra note 109, at 62.
  4. Interestingly, information received by the Task Force implicated the economic structure of some law firms as one cause of discovery abuse. A M. COLL. OF TRIAL LAWYERS , supra note 94, at 4. This Note will not discuss the economic models on which firms are built, but such structures may very well factor into a complete analysis of why discovery is so often abused. See id.
  5. Id. at 1 & n.1.
  6. Id. at A-4.
  7. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for the Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005).

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Their use, as with other abusive discovery practices, “lack[s] the civility and

professionalism one expects from... experienced attorneys.”^127 It is that

lack of civility that repeatedly brings disrepute upon lawyers and the legal

system. 128 While it is unlikely that any individual lawyer considers this cost

when responding to discovery requests, the “all-too-common” practice of

using boilerplate objections has an effect on the profession far beyond any

particular case. 129

IV. P ROPOSED S OLUTIONS

There is likely no silver bullet solution to the problem of boilerplate

objections. In order to curb their use, the legal community’s passive

acceptance of boilerplate objections needs to change. Ideally, this change

would self-execute by lawyers personally choosing to comply with the rules

against boilerplate objections. Realistically, however, external costs

imposed by judges and other lawyers will probably be a necessary

component of any viable solution.

One suggested solution is to amend the Federal Rules of Civil

Procedure to more clearly prohibit boilerplate objection tactics.^130 But that

solution raises the question: If boilerplate objection tactics continue to be

used despite the fact that the Federal Rules of Civil Procedure already

require specificity and federal courts universally disapprove of boilerplate

objections, will simply adding more rules change these already pervasive

tactics? Given the current response to the rules and the case law governing

boilerplate objections, simply bolstering the language of the current rules

will likely be ineffective. Instead, judges and other lawyers must find ways

to impose practical costs on attorneys who issue boilerplate objections.

A. Increased Scrutiny by Judges

Although the Federal Rules of Civil Procedure contemplate a

  1. Grider , 580 F.3d at 125.
  2. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990).
  3. See id.
  4. See Daniel C. Girard & Todd I. Espinosa, Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal Rules , 87 D ENV. U. L. R EV. 473, 483 (2010) (“The rules should be amended to conform to the judicial consensus against generalized and boilerplate objections by adding the following provision to Rule 34(b)(2)(C): Each objection to a request or part thereof must specify whether any responsive documents are being withheld on the basis of that objection.” (internal quotation marks omitted)).

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minimal role for judges in the discovery process, the rules do not eliminate

the need for judicial supervision.^131 In fact, discovery abuse “is partly

caused by the failure of busy courts to properly monitor the use of

discovery procedures.” 132 Thus, responding to abusive discovery practices

will require increasingly aggressive judicial supervision.^133 While this

supervision can be initiated upon a motion to the court, it can also be

initiated by a court sua sponte.^134 Even attorneys recognize that the

discovery process is most satisfactory when judges actively supervise the

parties. 135 In fact, some have suggested that increased judicial scrutiny is the

only solution that can begin to remedy a broken discovery system. 136

Judges are in a unique position to deter the use of unethical

boilerplate discovery objections. Unlike attorneys, judges may rely on their

authority to issue sanctions under Federal Rule of Civil Procedure 26^137 and

on the inherent power of the court.^138 In order to curb boilerplate

objections, judges should be more willing to dole out sanctions against

lawyers who abuse the discovery process by issuing these objections. 139

These sanctions may include, but are not limited to: holding the objections

to be waived, 140 overruling the objections,^141 awarding attorney’s fees and

  1. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 (11th Cir. 1997).
  2. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1547 (11th Cir. 1993) (Roney, J., concurring).
  3. See ACF Indus., Inc. v. EEOC, 439 U.S. 1081, 1087 (1979) (Powell, J., dissenting from denial of certiorari) (recognizing that “there is a pressing need for judicial supervision” regarding abuse during pretrial discovery); Malautea , 987 F.2d at 1547 (Roney, J., concurring) (noting that courts should “hold all parties and lawyers to a higher standard of good faith in the discovery process”).
  4. See F ED. R. CIV. P. 26(g)(3) (permitting a court to issue a sanction “on motion or on its own”); St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 515 (N.D. Iowa 2000); cf. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008) (ordering pursuant to Rule 26(b)(2)(c) that parties limit discovery that is likely to be overly burdensome).
  5. AM. C OLL. OF TRIAL LAWYERS , supra note 94, at 5.
  6. Id. at 3.
  7. F ED. R. CIV. P. 26(g)(3) (stating that absent a substantial justification, a court “must impose an appropriate sanction on the signer” of a discovery request that fails to comply with Rule 26(g)).
  8. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
  9. See St. Paul Reinsurance Co. , 198 F.R.D. at 517 (“Rambo style obstructionist discovery tactics... , if not stopped dead in their tracks by appropriate sanctions, have a virus like potential to corrupt the fairness of our civil justice system.” (internal quotation marks omitted)).
  10. See, e.g. , Mezu v. Morgan State Univ., 269 F.R.D. 565, 580 (D. Md. 2010); PML N. Am., L.L.C. v. World Wide Pers. Servs. of Va., Inc., No. 06-CV-14447-DT,