Federal courts are now handing down firm decrees, stating that although “old habits die hard,” counsel must revise their “form” discovery responses immediately to comply with the Federal Rules of Civil Procedure. In two recent orders, courts have decried the “widespread addiction” lawyers have with the “menacing scourge” of “boilerplate” objections. Liguria Foods, Inc. v. Griffith Laboratories, Inc., 14-3041-MWB (D. Iowa Mar. 13, 2017); Fischer v. Forrest, 1:14-CV–1304-PAE-AJP (S.D.N.Y. Feb. 28, 2017). Because no litigator wants to be the subject of a strongly worded discovery order, it would benefit counsel to heed these courts’ warnings. This is especially so because both make clear: “admonitions from the courts [are] not . . . enough . . . only sanctions will stop this nonsense.”
So what should counsel do? As a starting point, Rule 26 sets out the boundaries of discovery succinctly. “[T]he concepts of materiality, relevancy, and discoverability are [not] fixed,” and a party is entitled to use discovery as an “investigatory tool” to explore freely its “theories of the case . . . .” In contrast, the party subject to a discovery request cannot avoid its duty to respond through “bald assertions” of privilege or other objections. Rather, it must first object and respond to the request specifically and utilize Rule 26(c) as a last resort if the issue is pressed. Liguria Foods, at 23–27.
Within this Rule 26 paradigm, litigants should avoid a variety of discovery practices. Lawyers should immediately stop using general and “boilerplate” objections. “The key requirement in both Rules 33 and 34 is that objections require ‘specificity.’” Liguria Foods, at 28. It is “simply not enough” for attorneys to assert vague and conclusory objections to interrogatories or requests to produce without specifying “how” a particular discovery request is “deficient,” and without “articulating the particular harm” that will accrue if forced to answer. Id.; accord Fischer, at 5 (stating if a party objects that a request is “overbroad” or “unduly burdensome,” then explain: “Why is it burdensome? How is it overly broad?”).
However, even if counsel specifically explains the basis for an objection, more must still be done. Counsel must identify “whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. Pro. 34(b)(2)(C); 2015 Adv. Comm. Notes to Rule 34. “[S]imply stating that a response is ‘subject to’ one or more general objections does not satisfy the ‘specificity’ requirement[.] . . . [Rather,] it leaves the propounding party unclear about which of the numerous general objections is purportedly applicable as well as whether the documents or answers provided are complete . . . .” Liguria Foods, at 32–33.
In addition, privilege logs should always accompany any responses that assert a privilege. Otherwise, the objection “hamper[s], rather than facilitate[s], the timely and inexpensive determination of privilege issues.” Liguria Foods, at 31. Further, going forward, discovery responses must either (1) state that all requested documents will be produced at the time specified in the request, or (2) state “another reasonable time” for production “specifically . . . in the response.” Fischer, at 2–3, 5; Fed. R. Civ. Pro. 34(b)(2)(C). If “it is necessary to make the production in stages,” then “the response should specify the beginning and end dates of the production.”
So what is the take-away from these opinions? Courts simply will not tolerate these practices, no matter how entrenched or harmless they may seem to be. Remember, when objecting, “specificity” is key. “[A]n objecting party does not have the unilateral ability to dictate the scope of discovery . . . .” Liguria Foods, at 32. Thus, practitioners should remove vague and conclusory objections from their discovery toolbox altogether. Counsel must also explain the reasons underlying their objections and, if objecting to a document request, state whether documents were withheld from production. Be proactive and cooperate with opposing counsel to the extent possible. If a discovery dispute arises, “request an extension of time to respond and confer on troublesome discovery requests,” or “request an ex parte and in camera review” from the judge, “who might quickly render an opinion on whether [the request] in question [is] discoverable.” Liguria Foods, at 34. Lastly, always produce your privilege log and documents at the time your responses are due, or cooperate with opposing counsel for an extension.