Eighth Circuit Court Issues Warning To Bar Regarding Use Of “Boilerplate” Discovery Objections
In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Judge Mark Bennett of the United States District Court for the Northern District of Iowa required both plaintiff and defense counsel to show cause why they should not be sanctioned for discovery abuses based on the excessive use of “boilerplate” objections to discovery requests. The issue arose when the court was reviewing a discovery dispute between the parties and noticed numerous objections that the court deemed to be improper “boilerplate objections.” The court subsequently required both parties to submit all of their written discovery responses for the court’s review. The court also notified counsel of its intention to impose sanctions on every attorney who signed discovery responses it they were found to be improper or abusive. Based on its review of the discovery responses the court determined that numerous discovery responses, from both sides, were improper.
According to Judge Bennett, the improper objections included language such as: “not reasonably calculated to lead to the discovery of admissible evidence,” “subject to and without waiving its general and specific objections,” “to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure,” and the ubiquitous “overbroad and unduly burdensome.”
The court stated that “boilerplate” objections obstruct the discovery process, violate the rules of civil procedure and ethics and imposes undue costs on the litigants. The court then evaluated each “boilerplate” objection. First, the court noted that an objection that a discovery request is premature is baseless as the discovery was propounded after the time specified in Rule 26 and there is no limitation on the sequence of discovery. Similarly, an objection based on privilege without providing a log or list of the withheld documents is deficient and “hamper[s], rather than facilitate[s]” the issue of privilege in discovery.
The court also held that many of the objections lacked the specificity required under Rules 33(b)(4) and 34(b)(2) and failed to articulate with specificity the lack of relevance or undue burdensome under Rule 26(b)(1). For example, an objection must articulate how or why the request is not relevant, overly broad, or unduly burdensome. Similarly, simply stating a response is “subject to” one or more general objections does not satisfy the “specificity” requirement as it fails to identify for the propounding party which general objection is applicable, whether documents are being withheld, or whether the response is complete. The court summarily dismissed counsel’s argument that if it failed to utilize general objections it could waive its rights. Rather, the court noted the failure of a party to specifically identify its objections and what was withheld did not preserve any rights. Further, a solution to such an issue would be to meet and confer with opposing counsel about the concerns or request an in camera review by the magistrate who could determine whether the documents in question were discoverable.
Although the court held that both parties had engaged in clear discovery abuse through the use of “boilerplate” objections, it declined to impose sanctions. Instead, the court reviewed the history of counsel and noted that in this case, counsel did not use the objections as a way to impede discovery, but rather took every step to confer and cooperate during the discovery process (other than their use of the “boilerplate” objections). The court also observed that because the parties were able to work out almost every discovery dispute, “their boilerplate responses were completely unnecessary.”
In an effort to forestall future issues with “boilerplate” objections, the court noted that its new Trial Management Order advises parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions.” The court “encouraged” all lawyers to request opposing counsel withdraw “boilerplate” objections and if counsel refuses to withdraw such objections, to go to the court and seek relief in “the form of significant sanctions.” The court also urged judges to apply increasingly severe sanctions when such form objections were brought to their attention.
This case underscores the importance of ensuring objections to discovery requests are specific, based on the rules and made in good faith. As the courts continue to deal with the ongoing and seemingly never ending issue of discovery disputes, particularly in the ever increasing world of e-discovery, the failure to follow the rules and engaging in “boilerplate” or form objections may result in severe consequences.