April 17, 2017
Judges and lawyers have complained for a long time that the use of boilerplate in the discovery process bogs things down and increases costs. Boilerplate is universally reviled. And yet we haven’t managed to eradicate it.
That may be changing—and we have the 2015 “proportionality” amendments to thank for that, at least in part.
Eliminating Boilerplate Objections.
More and more judges are cracking down on the use of boilerplate objections. While there have always been cases saying that boilerplate objections are insufficient and will be ignored, that body of case law is growing rapidly and taking on a harsher tone. What’s fueling this phenomenon? In many of those cases, the judges have cited directly to the 2015 amendments to Rule 34.
Rule 34 now explicitly requires parties to state their objections with specificity. Most judges had read this common sense requirement into the rule. Making it part of the rule text was meant to reinforce its importance, and it appears that judges have gotten the message. For too long, too many lawyers seemed to be mindlessly cutting and pasting a standard litany of vague and unspecified objections—i.e., boilerplate objections—into every written discovery response. Not anymore. You must be specific. If you’re not going to particularize the objection, then don’t bother making it.
Rule 34 now also requires parties to state whether any documents are actually being withheld on the basis of their objections. This amendment addresses the practice of stating that a response is being made subject to a list of (usually boilerplate) objections. The problem there is that the response leaves one guessing whether anything was in fact held back. The 2015 amendments were meant to put a stop to that headache-and-confusion-inducing practice. Only make an objection if you mean it, and then say how it changed what you did (or did not do) in responding.
The stakes are higher than you might realize. If your first response contains improper objections, the court may find that you have waived the right to interpose more specific objections that would have been proper had you made them initially.
What’s Good for the Goose: Eliminating Boilerplate Requests.
Judges are also cracking down on boilerplate requests. Simply put, judges are tired of lawyers thoughtlessly recycling their stock interrogatories and documents requests. Here too, judges have been spurred on by the 2015 amendments. The scope of discovery is information that is relevant to the issues in the case and proportional to the needs of the case. Good luck persuading a perturbed judge that your boilerplate discovery requests—the ones you’ve used in every case since the Carter administration—hit that target.
The Rule 26(g) Renaissance.
The final piece of the puzzle has been the judicial rediscovery of Rule 26(g). First enacted in 1983 but long dormant, Rule 26(g) states that discovery requests must be made for a proper purpose, must be warranted by the legal issues, and must not impose an undue burden in light of the expected benefit. The same goes for objections and responses.
Judges are increasingly telling lawyers that the use of boilerplate—whether in their requests or their objections and responses—puts them in serious peril of violating their certification duties under Rule 26(g). To date, judges have been rather forgiving, typically issuing only warnings or reprimands. But if lawyers persist in their business-as-usual boilerplate ways, it is only a matter of time before frustrated judges turn to more serious sanctions to make their point.
Will lawyers ever stop using boilerplate in their discovery? Yes . . . when judges make them stop. Will judges ever make them stop? The answer, increasingly, looks like yes.
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