Your document request is “vague, overly broad, and unduly burdensome,” litigants have told their opponents since time immemorial. The 2015 amendments to the Federal Rules of Civil Procedure sought to curb such boilerplate, cut-and-paste discovery responses, but many lawyers still struggle to kick the habit acquired early in their careers.
A new Sedona Conference publication could help. The legal policy and educational institute recently finalized publication—“Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests” —provides attorneys with practice pointers on how to comply with the amended rules and better handle issues that arise when responding to discovery requests.
Amended Rule 34 requires parties to specifically state their grounds for objecting to discovery requests and whether any materials are being withheld on the basis of an objection.
Nearly three years since the amendments went into effect, impermissible boilerplate objections are still showing up in discovery responses, judges and attorneys say.
“Old habits die hard,” Andrew J. Peck, a former Magistrate Judge for the Southern District of New York, told Bloomberg Law. Peck, who is now Senior Counsel at DLP Piper, was one of the editors on the team that drafted the Sedona primer.
Additionally, attorneys may feel as though they don’t have choice over whether to use boilerplate responses that violate the amended rules, Peck said. It really is hard to timely respond to discovery requests, particularly when an attorney doesn’t know what information a client has or how it is going to be able to produce such information, he said.
The amendments to Rules 34 have had a big impact on how attorneys practice and should help parties resolve discovery disputes on their own. But for some attorneys the changes may not have sunk in yet, Annika K. Martin, a New York-based partner at Lieff Cabraser Heimann & Bernstein LLP, told Bloomberg Law.
Martin was an editor-in-chief of the publication and represents plaintiffs in environmental, mass tort, and consumer protection cases.
Judges have been voicing their frustration over the continued use of boilerplate objections.
Before retiring, Magistrate Judge Peck in a February 2017 ruling issued a “discovery wake-up call to the” bar to highlight the amendment to Rule 34. In future cases, general discovery objections that don’t comply with Rule 34’s specificity requirement would be deemed waived, he said.
Less than a month later, District Judge Mark Bennett of the Northern District of Iowa issued a March 2017 ruling lambasting “repetitive discovery objections” that are “devoid of individualized factual analysis.”
“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,” he wrote in all caps.
Despite these warnings, parties this year have been sanctioned and seen their discovery responses waived as a result of using boilerplate language.
For example, District Judge Robert Cleland, of the U.S. District Court for the Eastern District of Michigan, sanctioned defendants in a copyright infringement case for making “typical boilerplate objections known and detested by courts and commentators—and receiving parties—around the nation.”
“This court is not the first—nor will it be the last—to condemn the use of boilerplate objections. Indeed, perhaps the only thing more surprising than the pervasive reliance on boilerplate is the practice’s continued existence in the face of strong and widespread criticism by federal courts,” he said.
The primer lets attorneys know how Rule 34 has changed and gives them some tips on how they can update their practices, Martin said. The first step for attorneys should be to tear up their old boilerplate templates that are no longer allowed, she said.
Some of the other suggestions include conferring with opposing counsel early on to avoid judicial intervention in a discovery dispute.
Attorneys don’t have to wait until a discovery response is due to make an objection, Peck said. Attorneys may be able to get a clarification or reduction of a discovery request by letting opposing counsel know what is problematic about a discovery request.
Additionally, the primer suggests general objections that may be appropriate and discusses how attorneys can draft discovery responses that are sufficiently specific. Attorneys can meet Rule 34’s requirements by describing the scope of what the party is willing to produce or describing how it is willing to search for information, it says.
“But changing 75 years of legal culture has been difficult, as the case law demonstrates,” Kenneth J. Withers, Deputy Executive Director of The Sedona Conference, told Bloomberg Law. “We hope that this Primer will provide lawyers with a fresh perspective on how to comply with the Rules and deliver on their promise of expedited discovery at lower cost, which will benefit clients, courts, and the lawyers themselves.”
To contact the reporter on this story: Michael Greene in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Copyright © 2018 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)