1 Weird Trick to Avoid Sanctions
Courts around the country are rapidly losing patience with boilerplate objections to written discovery requests.
Summary: Courts around the country are rapidly losing patience with boilerplate objections to written discovery requests. This article discusses an important recent decision highlighting the underlying problems and risks associated with asserting these kinds of objections. Note that while my articles are typically focused on employment litigation (and employment litigators frequently face the issue of boilerplate objections), this piece is meant for litigators of every stripe.
I’ll get to the click-baity title in a minute, but first a personal observation. When a judge opens a decision with a quote from a famous person, prepare thyself, because some truth bombs are about to be dropped. Judge Mark W. Bennett did both in his recent order in Liguria Foods, Inc. v. Griffith Labs., Inc., 2017 WL 976626 (N.D. Iowa Mar. 13, 2017).
By way of background, you may remember Judge Bennett’s 2014 order from Sec. Nat’l Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595 (N.D. Iowa 2014), rev’d sub nom Sec. Nat’l Bank of Sioux City, Iowa v. Day, 800 F.3d 936 (8th Cir. 2015). In that case, Judge Bennett issued sanctions for inappropriate deposition objections and interruptions (a topic I previously covered here). The Abbott Labs opinion is worth a read for any litigator.
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But I digress. In Liguria Foods, Judge Bennett tackles the issue of boilerplate objections to written discovery requests. He refers to them as a “widespread addiction . . . plagu[ing] the litigation industry,” even though not “a single reported or non-reported judicial decision or a rule of civil procedure from any jurisdiction in the United States, state or federal . . . authorizes, condones, or approves of this practice.”
Nevertheless, I’m confident that pretty much all American litigators, even the first-year associates out there, have seen and likely used such objections. I certainly have.
But “what’s past is prologue,” and Judge Bennett echoes courts around the country in finding that this longstanding and widely employed practice is improper and typically doesn’t even preserve the stated objection(s). See generally 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.”).
To sum up the issue, Rules 33 and 34 of the Federal Rules both require that objections be stated “with specificity.” Judge Bennett explains that merely pointing out that a discovery request is vague, overly broad, ambiguous, burdensome, oppressive, and/or irrelevant is not stating the objection “with specificity.” Such boilerplate objections identify neither the particular way in which the discovery request is deficient, nor do they demonstrate what harm would accrue if the responding party had to respond to the request.
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This ambiguity can then lead to discovery fights between parties, unnecessarily driving up litigation costs and court congestion. Judge Bennett points out that some estimates place discovery costs as comprising 50 to 90 percent of total litigation costs, and that fights over boilerplate objections are needlessly contributing to that figure.
What’s a litigator to do?
Judge Bennett suggests that first and foremost, opposing attorneys should confer on troublesome discovery requests, even if doing so requires asking for an extension of time to respond. (Protip: Pick up the phone and call your opposing counsel; don’t just fire off an email.)
But what if that doesn’t work? What does a proper objection look like?
Let’s assume we’re litigating a hypothetical case. The issue is whether a debonair fellow named Evan breached his employment agreement by sharing the confidential information of his employer, Gibbs & Co., with a competitor. Here’s a sample discovery request from the case:
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Request No. 1: Any and all documents or other materials demonstrating, evidencing, and/or relating to any and all communications between Evan and any and all competitors of Gibbs & Co.
Assume Evan’s a 25-year veteran in the industry who’s worked for a lot of different companies over his career. Is this discovery request overly broad? Almost certainly, I’d say; without a temporal restriction, on its face it encompasses every internal e-mail he ever authored working for any company in the industry in his 25-year career. Is it overly burdensome? Probably; it’s likely unreasonable (not proportionate to the needs of this case) for Evan to have to find, review, and produce all such responsive records going back 25 years.
So, how to respond? I think objecting with specificity requires answering why and how the request is overly broad and burdensome. Consider this response:
Objection. Request No. 1 is overly broad because it has no time limitation, which would thus require Evan to produce documents in response dating back 25 years which have no relation to this case. Request No. 1 is also overly burdensome, as producing responsive documents would require production of hundreds of thousands of pages of materials that Evan would have to secure from former employers and others at great time and expense, the great majority of which would have no bearing on this case. Evan is not presently producing any documents in response to Request No. 1.
I think this objection satisfies the specificity requirement under the Federal Rules. The propounding attorney will clearly know when he or she reads the objection why these objections are being made, with clear direction as to how the request can be narrowed to not be objectionable (or at least less so). Maybe this works. I leave it to your sound discretion.
(Note: Let me be clear. This whippersnapper is not telling anyone (whether they’re an experienced, venerable practitioner or a fellow whippersnapper) how to do their job. I’m just offering what I think is a reasonable solution.)
Judge Bennett ultimately didn’t impose sanctions in this case. He noted that the attorneys of record were professional, courteous, and genuinely worked together to avoid the Court’s involvement. But still, he came very close to imposing sanctions, building some serious suspense through his lengthy order. If the attorneys hadn’t been so professional and courteous, I think we might have seen a different result.
Judge Bennett’s patience with the use of boilerplate objections has been exhausted. This appears to be a sentiment felt by many judges across the country, as demonstrated by the numerous cases cited by Judge Bennett.
So, hopefully you now understand the click-baity title of this article, and are at least somewhat satisfied that you’ve learned “one weird trick” to avoid sanctions in future litigation.
(Flip to the next page to read Judge Bennett’s order in full; it’s well worth your time.)
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)
