Federal Judges Blow Their Stacks Over Boilerplate Objections
A little less than two weeks apart, two federal judges emphatically let practitioners in their districts know how much they despise boilerplate objections to written discovery. Both judges delivered the same message: boilerplate objections violate the Federal Rules of Civil Procedure, are not valid objections and could subject parties or their attorneys to sanctions.
In the first order, Magistrate Judge Andrew Peck of the Southern District of New York expressed his disgust for boilerplate objections in just a few pages and most of those pages involved direct quotations from the Federal Rules, the Advisory Committee Notes to the rules and the specific requests for production and the responses to those requests. Stripped of the quotations, Judge Peck used fewer than a dozen paragraphs in Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017), to explain that boilerplate objections violate the Federal Rules in at least four ways.
In contrast, Judge Mark Bennett of the Northern District of Iowa penned an expressive 45 page treatise in Liguria Foods, Inc. v. Griffith Labs, Inc., 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa Mar. 13, 2017), in which he lambasted the use of boilerplate objections and analyzed whether the use of those objections by both parties constituted sanctionable conduct. Ultimately, Judge Bennett decided against issuing sanctions in this particular case, but he made it clear that he will issue sanctions in future cases.
Judge Peck’s Order in Fischer v. Forrest
In the opening sentence of his short order, Judge Peck declared that “[i]t is time, once again, to issue a discovery wake-up call to the Bar in this District…” Specifically, Judge Peck reminded practitioners that amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015 and those amendments included changes to Rule 34 regarding responses to discovery requests. In particular, Judge Peck noted that:
(a) grounds for objections must be stated with specificity;
(b) objections must state whether responsive material is being withheld on the bases of objections; and
(c) parties must specify the time for production of documents, and if it will be a rolling, then the production will begin and end.
Lawyers who have not changed their “form file” for objections to discovery requests “violate one or more (and often all three) of these changes.” Judge Peck then lamented that “[d]espite the clarity of the no-longer-new 2015 Amendments, the Court still sees too many non-compliant Rule 34 responses.”
After noting that the defendant included 17 “general objections” in its responses to the discovery requests, Judge Peck quoted from the defendant’s objections to the first two document requests. The defendant objected “to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence” and that the requests seek “information already in Plaintiff’s possession.”
According to Judge Peck, those objections violate the amended rules in at least four respects. First, the general objections violate Rule 34(b)(2)(B)’s requirement that objections be stated with specificity and Rule 34(b)(2)(C)’s requirement to indicate if responsive material is being withheld on the basis of a specific objection. Thus, “[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.”
Second, the defendant’s general objections on the basis of “non-relevance” to the “subject matter of the litigation” and that the discovery is “not likely to lead to the discovery of relevant admissible evidence” are outdated. Because "discovery about 'subject matter' no longer is permitted" and because the “2015 amendments deleted” the “likely to lead to the discovery of relevant, admissible evidence” language, “lawyers need to remove [that language] from their jargon."
Third, objections that requests are “overly broad and unduly burdensome” are “meaningless boilerplate” because that “language tells the Court nothing.” Fourth, the discovery responses failed to indicate when the responsive material would be produced.
Judge Peck concluded his order with an ominous warning to practitioners:
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).
Judge Bennett’s Order in Liguria Foods, Inc. v. Griffith Labs, Inc.
Judge Bennett, in Liguria Foods, concluded his order in similar fashion. But unlike Judge Peck, Judge Bennett used the typewritten version of yelling to issue his warning – he concluded his order in all capital letters. Specifically, he announced:
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.
In his 45-page order, Judge Bennett cites no fewer than ten scholarly articles to support his opposition to boilerplate objections, and observes that no judicial jurisdiction in the United States “authorizes, condones, or approves of this practice[.]” According to Judge Bennett, boilerplate objections are “obstructionist” and this 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.
Because boilerplate objections are part of the “culture,” Judge Bennett declared that “admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense.” Thus, in his view, Judge Bennett wrote that “the imposition of increasingly severe sanctions will help solve the problems.”
Although counsel for both parties agreed that they had a cooperative and professional relationship throughout discovery, Judge Bennett nonetheless spent several pages of his order considering whether to sanction counsel for both parties who prepared the “obstructionist” boilerplate objections. Ultimately, Judge Bennett decided against issuing sanctions in this case. But he “strongly encourage[d] counsel for both parties to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses.”
Prior to this order, Judge Bennett had issued a Supplemental Trial Management Order applicable in cases starting in 2017. In that new order, Judge Bennett specifically states that “[a]ny party subjected to obstructionist conduct in discovery or depositions…shall promptly file a Report to the Court in writing, advising the Court of the specific nature of the alleged discovery abuse, regardless of whether or not the party intends to seek sanctions on its own motion.” In short, parties now have an affirmative obligation to report “obstructionist discovery conduct” to Judge Bennett.
Key Takeaways from Both Orders
The message from both judges could not have been louder or clearer: boilerplate objections are unacceptable and may be sanctioned in future cases. But the disdain for boilerplate objections is not limited to just these two judges. Judges in Kansas have long railed against boilerplate objections, general objections, and conditional objections. See High Point SARL v. Sprint Nextel Corp., 2011 U.S. Dist. LEXIS 103118 (D. Kan. Sept. 12, 2011) (rejecting “unduly burdensome” objections that were not supported by evidence detailing the nature of the burden); Pro Fit Mgmt. v. Lady of Am. Franchise Corp., 2011 U.S. Dist. LEXIS 19152 (D. Kan. Feb. 25, 2011) (criticizing general and conditional objections as “hypothetical and meaningless”); Duffy v. Lawrence Mem. Hosp., 2016 U.S. Dist. LEXIS 176848 (D. Kan. Dec. 21, 2016) (citing numerous Kansas rulings railing against conditional and boilerplate objections including cases dating back as far as 2005).
And in the few weeks since Judge Peck penned his order, other federal judges from California, Florida and North Carolina have joined the chorus, albeit with less fervor than Judges Peck and Bennett. In Sream, Inc. v. Hassan Hakim & Sarwar, 2017 U.S. Dist. LEXIS 31491 (S.D. Fla. Mar. 6, 2017), the court quoted directly from Judge Peck’s order that the language “overly broad” and “unduly burdensome” “tells the Court nothing.” In another case, Am. Humanist Assn. v. Perry, 2017 U.S. Dist. LEXIS 38600 (E.D.N.C. Mar. 17, 2017), after noting that “[s]uch boilerplate objections are subject to waiver,” the court threatened sanctions up to default judgment if the defendant’s supplemented discovery responses continue to be deficient. See also Amatrone v. Champion, 2017 U.S. Dist. LEXIS 40800 (N.D. Cal. March 20, 2017) (holding that “boilerplate responses are insufficient.”).
Judge Peck urged counsel to update their “form” files and suggested that parties should avoid “general objections” except in rare instances. Judge Bennett explicitly prohibits boilerplate objections in his Supplemental Trial Management Order. He also provides direct instructions regarding proper discovery responses. The amended Federal Rules require specific objections and detailed privilege logs. To avoid the wrath of federal judges, parties would be wise to avoid the types of boilerplate objections made by the parties in Fischer and Liguria Foods, Inc.