“Boilerplate” Objections Are Generally Condemned; Except When They’re Not

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024), “boilerplate” objections were sustained on the specific facts presented.

BOILERPLATE OBJECTIONS HAVE GENERALLY BEEN CONDEMNED

Boilerplate objections have generally been condemned.  For example, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), Judge Grimm wrote:

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver.

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008).

See General Objections, Dracula, and “Whac a Mole” (Apr. 16, 2024)(citing cases: “Defendants included general and boilerplate objections in their responses to discovery, which are not acceptable in this circuit. Defendants’ responses are a perfect example of how not to answer discovery requests. Defendants preface their responses with a litany of ‘General Objections’ which are expressly incorporated into each specific response and are ‘in addition to’ any specific objection. Courts in this circuit disfavor general objections.”); “Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses (Dec. 9, 2021).

“Boilerplate” was defined in Liguria Foods, Inc. v. Griffith Lab’ys, Inc., 320 F.R.D. 168, 170 n.1 (N.D. Iowa 2017), where the court wrote that this “widespread addiction” continues “to plague the litigation industry,” adding that “counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice.” 

The Liguria court wrote that this condemnation is universal and elimination of this “discovery abuse” was a “worthy” goal. Id. at 171.  “[T]he idea that such general or ‘boilerplate’ objections preserve any objections is an ‘urban legend.’”  Id. at 187 (citation omitted).  “The ‘natural and probable consequences’ of ‘boilerplate’ objections is delay and impediment of discovery, not the narrowing of issues and the avoidance of expense and delay toward which the discovery rules are aimed.” Id. at 189. Under Liguria:

Federal discovery rules and the cases interpreting them uniformly finding the “boilerplate” discovery culture impermissible are not aspirational, they are the law….  IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.

Id. at 190, 192.

BOILERPLATE OBJECTIONS HAVE BEEN SUSTAINED

Except when they’re not condemned, sometimes boilerplate objections are, instead, sustained:

Boilerplate Objections
Throughout their discovery responses, Defendants objected to many requests stating, with no further explanation, that the answering defendant “objects to this request on the grounds that it is vague, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence.” …. Plaintiffs correctly note that this is a boilerplate objection, and that some case law discourages the use of boilerplate objections such as these. … The Court does discourage the use of boilerplate objections. However, where an otherwise-meritorious objection is stated in boilerplate fashion and considerations against compelling discovery are clear the Court declines to compel discovery simply because an objection was presented in boilerplate fashion. Therefore, throughout this opinion, the Court addresses the merits of the requests and objections where appropriate.

Id.

Jacobs v. The Journal Publishing Co., 2024 WL 4333199 (D. N. Mex. Sept. 27, 2024)(emphasis added); see E-Discovery 101 – – A Refresher on the Scope of Discovery + Boilerplate Objections Sustained (Sept. 6, 2024) (“In sustaining boilerplate objections, the Ho court essentially determined that the information sought by plaintiff could be obtained from documents that had been produced by the defendant.”); see Court Excused Party From Waiver by Failure to Provide Specific Objections (Court held that defendant’s discovery objections were too general; however, on the facts presented, including the manner in which plaintiff’s discovery requests were drafted, it permitted supplementation of the objections).

THE “NOT REASONABLY CALCULATED” OBJECTION WAS WITHOUT MERIT

As a starting point, I note that the “not reasonably calculated” language of the Journal Publishing objection was removed from the Federal Rules of Civil Procedure by the December 2015 amendments. The December 2015 Advisory Committee Note to Fed.R.Civ.P. 26(b)(1) states:

The former provision for discovery of relevant but inadmissible information that appears “reasonably calculated to lead to the discovery of admissible evidence” is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the “reasonably calculated” phrase to define the scope of discovery “might swallow any other limitation on the scope of discovery.” The 2000 amendments sought to prevent such misuse by adding the word “Relevant” at the beginning of the sentence, making clear that “‘relevant’ means within the scope of discovery as defined in this subdivision …” The “reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery. [emphasis added].

The December 2015 Advisory Committee Note to Fed.R.Civ.P. 26(b)(1).

The Journal Publishing objection that plaintiff’s discovery was “not reasonably calculated to lead to the discovery of admissible evidence” was, in my view, without merit. However, the Journal Publishing court did not address it.

EXAMPLES WHERE BOILERPLATE OBJECTIONS WERE SUSTAINED

It is more interesting to review the boilerplate objections that were successful.  One example of the court sustaining a boilerplate objection follows:

Walz Interrogatory No. 3:

Identify, to the best of your recollection, each document, record, audio recording and person furnishing such document and ESI with regard to the Cannes photograph and Jacobs Article.

Doc. 154-1 at 40. Defendant Walz objected to this interrogatory as overbroad and in his response, argues that it attempts to sweep the entire case. The Court agrees. This interrogatory essentially asks for every document and document custodian relating to the subject matter of the lawsuit. As such, it is too broad. “Under our rules, parties to civil litigation are given broad discovery privileges. But with those privileges come certain modest obligations, one of which is the duty to state discovery requests with ‘reasonable particularity.’ All-encompassing demands of this kind take little account of that responsibility.”

Id. at *10 (citation omitted; emphasis added). 

In another instance, objections of overbreadth and irrelevance were sustained because: “Identifying every ethical violation committed within a 37-year period is not proportional to Plaintiffs’ discrete claims of trespass, invasion of privacy, and copyright violation in December 2016.”  Id.

CONCLUSIONS

Discovery rulings are discretionary and fact-sensitive. Courts have suggested negotiated resolutions by the parties are preferable because a party could be “right,” but still lose.  And, there is often no right or wrong answer.  There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024)(citing cases).

My takeaway is that boilerplate objections are perilous and should be avoided.  Where, however, a discovery request is clearly and unequivocally far beyond the scope of discovery or facially disproportionate, a boilerplate objection may be sustained.  “Never say never.”

However, where a request is so clearly objectionable, it would take little effort to state the supporting facts with specificity and that would appear to be the prudent course.  The Journal Publishing court was able to do so in its memorandum opinion, and therefore the objecting party could also have done it.  There is no reason to take the risk of relying on boilerplate in light of the general condemnation of those objections.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.