In two recent cases, Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017) and Fischer v. Forrest, Nos. 14 Civ. 1304 (PAE) (AJP), 14 Civ. 1307 (PAE) (AJP) (S.D.N.Y. Feb. 28, 2017) the judges presiding in the courtroom reprimanded attorneys for using boilerplate discovery responses in their pleadings. Both judges noted that failing to respond to a discovery request with specificity violated the Federal Rules of Civil Procedure. While neither judge imposed sanctions on the attorneys, they both issued stiff warnings that future boilerplate responses would not be tolerated.
Commonly Used Language
Many defense and plaintiff’s counsel have come across the typical “boilerplate” discovery responses that were allowable in the past but are no longer permitted under the current Federal Rules of Civil Procedure, which were amended in December of 2015. The one change that affects the daily work of every litigator is Rule 34, requiring that responses to discovery requests must:
- State grounds for objections with specificity;
- Objections must state whether any responsive materials are being withheld on the basis of the objection; and
- Specify the time for production and, if producing on a rolling basis, when production will begin and conclude.
It is not uncommon for attorneys to use the general objections below, which, if not more specific, do not comply with the amended rule.
- Not reasonably calculated to lead to the discovery of admissible evidence;
- Subject to and without waiving its general and specific objections;
- To the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure; and
- Over broad and unduly burdensome.
Because many lawyers have failed to change the “form file” used in prior discovery request responses, many violate one – and, more often, all three – of these changes. Attorneys who violate these rules may be subject to sanctions, imposed at the discretion of the presiding judge.
Keeping Up with Changes
It is important for attorneys, litigators or not, to keep up with the changes in the legal landscape. This includes the rules that govern civil procedure, evidence, and other areas of the law. Resources are available to attorneys including those on the American Bar Association’s website as well as other places.