Seriously, Boilerplate Objections are a Bad Idea

This blog surprises me sometimes and did again last week.  Three prior posts discussed how boilerplate objections are ineffective, at best, and how they generally cause only grief to whichever party or lawyer asserts them.[1]  Then I received an email from Judge Mark W. Bennett of the Northern District of Iowa about these objections.  Judge Bennett has had enough of boilerplate objections and suggested those who read this blog might be interested in a very recent ruling he entered about them.  After reading it, I wholeheartedly agree.

Liguria Foods, Inc. v. Griffith Labs., Inc. arose from rancid sausage.[2]  However this particular ruling

squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when 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? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.

Judge Bennett described how modern litigants frequently ignore Rule 1 instead favoring “wars of discovery attrition.”  “[D]iscovery all too often becomes a needlessly time-consuming, and often needlessly expensive, game of obstruction and non-disclosure. Indeed, obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them.”  “[I]t is clear to me that admonitions from the courts have not been enough to prevent such conduct and that, perhaps, only sanctions will stop this nonsense.”

What followed was a thorough history and analysis of boilerplate objections and the judiciary’s universal rejection of them.  Judge Bennett lamented that “[u]nfortunately, experience has taught me that attorneys do not know or pay little attention to the discovery rules in the Federal Rules of Civil Procedure.”  He noted the universal belief that discovery is too expensive and burdensome, but had what I thought is a unique perspective about how to address it.  “It is ignoring the applicable Federal Rules of Civil Procedure that I find is at least partially responsible for the increase in the costs and delays of discovery.”[3]  The opinion reviewed the objections that both parties used in the case and analyzed how they were completely non-compliant.

Judge Bennett concluded the opinion expressing the same frustration other judges have expressed, but then took steps to address it.  “Federal discovery rules and the cases interpreting them uniformly finding the ‘boilerplate’ discovery culture impermissible are not aspirational, they are the law.”  However, what more could be done to address what he terms an “addiction” to these objections?

I encourage all lawyers, when they receive “boilerplate” objections, to informally request that opposing counsel withdraw them by citing the significant body of cases that condemn the “boilerplate” discovery practice. If opposing counsel fail to withdraw their “boilerplate” objections, the lawyers should go to the court and seek relief in the form of significant sanctions—because the offending lawyers have been warned, given a safe harbor to reform and conform their “boilerplate” discovery practices to the law, and failed to do so.

The second part of this process is for judges to faithfully apply the discovery rules and put an end to “boilerplate” discovery by imposing increasingly severe sanctions to change the culture of discovery abuse. I realize my judicial colleagues, especially state trial court judges, are overwhelmed with cases, deluged with discovery matters, likely sick and tired of them, and lack the resources needed to deal with them in as timely a manner as they aspire to. In my view, the imposition of increasingly severe sanctions will help solve the problems. Lawyers are advocates and trained to push the envelope—rightly so. Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the “boilerplate” discovery culture and do our part to solve this cultural discovery “boilerplate” plague.

Judge Bennett ended the ruling by stating “I pledge to do my part—enough of the warning shots across the bow.”  He then changed his trial management order to include language that ought to catch your attention.  “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.”[4]  I took sharing this ruling with me, and hopefully those who read this blog, was part of Judge Bennett’s efforts to fulfill his pledge.

The easy takeaways from this ruling are 1) do not use boilerplate objections; and 2) really, really do not use them if you appear before Judge Bennett.  I personally echo Judge Bennett’s frustration.  However, I see one practical barrier to the cultural change he advocates: are clients willing to pay to fight them?  This leads to the next question:  what benefit does my client receive from fighting them?

In most cases, I am more or less able to piece together what the discovery response should have been despite the boilerplate nonsense.  Although not my obligation to do so, this method is often cheaper than motions to compel. By comparison, the process of obtaining a court order on boilerplate objections is laborious.  To my frustration, the meet and confer process generally does not result in the objections being withdrawn, leading to the motion.  Once filed, the local timetable for resolving the motion is generally 4 to 5 weeks, whether in state or federal court. Even if then granted, the ruling could disrupt the scheduling order for the case.  Although that is arguably the fault of the party using the objections, often times my clients are better served by not extending discovery any further because it only increases the cost, as empirically shown in the studies before the 2010 Duke Conference.  Instead, economics dictate ignoring the objections and moving the case towards a trial.

Some readers may note that Rule 37(a)(5) provides a mechanism to award fees and costs to the prevailing party concerning a motion to compel, thus potentially solving the economic problem.  While certainly true, in my practice judges are far too reluctant to use it.  Judge Bennett acknowledged this problem in his order.  Judges hesitate “to impose severe sanctions in the discovery context because of the oft-enunciated policy that cases should be decided on their merits. Also, though they rarely say so, many judges are reluctant to impose sanctions that may adversely affect the professional reputations and livelihoods of lawyers who practice before them.”[5]  Personally, I believe this problem is exacerbated in states where judges are elected and, for the most part, depend upon contributions from lawyers to fund their campaigns.

Perhaps the solution to boilerplate objections is as Judge Bennett proposes: draw a line in the sand and start using Rule 37(a)(5) more frequently.  However, absent some indication from the local judiciary that it too shares his frustration and is willing to follow a similar path, I suspect in most circumstances clients will opt for the less expensive path rather than funding a cultural battle within the profession.  Change is still possible, but it requires the right cases, with the right facts, the right judges, and enough on the line for the clients to justify the fight.

[1] November 10, 2014, November 13, 2014, and April 16, 2015.
[2] No. C 14-3041, 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa Mar. 13, 2017).
[3] (emphasis in original).
[4] (emphasis in original).
[5] (quoting John S. Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 Minn. L. Rev. 505, 511 (2000).