Boilerplate Discovery Requests

The blog was cited in a law review article.  That isn’t a sentence I thought I’d ever write.  A legitimate law review (Akron), published a legitimate article, by two legitimate authors (a professor at Oklahoma and the chief judge of the Southern District of Texas), who then included the blog in a string citation.[1]  In their defense, I have only warned about the perils of citing the blog as persuasive legal authority.  They didn’t cite it as authority, merely as one of many legal commentators complaining about boilerplate objections.[2]

That aside, they also raise a point that many do not: boilerplate discovery requests are just as bad as boilerplate objections.

But the boilerplate problem often begins earlier. Stock discovery requests—the questions a lawyer has included in each case since the Carter administration without thinking about whether the requests fit the needs of that case—almost by definition run afoul of Rule 26(b)’s proportionality requirement. The problem compounds when boilerplate requests are met with boilerplate objections. The circle must be broken at both ends.

That doesn’t mean, however, that discovery must be hand-crafted from scratch in every case. To the contrary, standardized discovery mechanisms can be affirmatively helpful—so long as they are designed and used to foster efficient and proportional discovery, not to frustrate it.[3]

I agree with them.  Practicing lawyers have stock discovery and other forms that fit the highest volume parts of their practice.  This helps lower the risk of error and also produce efficiency that benefits the lawyers and clients.  However, take the time to see if the form fits the case.  No one is perfect and errors will sometimes happen, but simply cutting and pasting the last set of discovery for a new file won’t work every time.

[1] Steven S. Gensler & Lee H. Rosenthal, Breaking the Boilerplate Habit in Civil Discovery, 51 Akron L. Rev. 683, 693 n.18 (2018).

[2] “Mama says that he’s bona fide.” O Brother, Where Art Thou? (2000).

[3] Id. at 686.