When it comes to the sanctionable reliance on boilerplate, you can’t say the profession hasn’t been warned.
For years courts have attacked "the problem of boilerplate” in the discovery process, condemning the use of general objections to discovery requests. The courts’ opprobrium has only grown in strength and intensity in recent years, following the 2015 amendments to the Federal Rules of Civil Procedure. Last February, U.S. Magistrate Judge Andrew J. Peck issued a “wake-up call” to the bar, warning that the continued use of boilerplate discovery objections violated updated Rule 34. “It is time for all counsel to learn the now-current Rules and update their 'form' files,” Judge Peck wrote, cautioning that failure to do so would henceforth waive all objections. The next month, Judge Mark W. Bennett, of the Northern District of Iowa, issued a similar opinion, explaining—IN ALL CAPS—that boilerplate objections raise the risk of substantial sanctions.
Now, the sanctions have begun.
Stuffed Burgers and Meaningless Objections
Last week, Judge Robert H. Cleland, of the Eastern District of Michigan, imposed sanctions for the use of boilerplate objections in the case of Wesley Corporation v. Zoom T.V. Products. The suit stems from stuffed hamburger technology (yes, really) and involves accusations of patent infringement and the alleged violation of a previous settlement agreement. But the meaty part of the dispute stems from Zoom T.V.’s discovery responses—or non-responses.
The Wesley Corporation filed its complaint in January, 2017, accusing Zoom T.V. Products and Ideavillage of selling unauthorized STUFZ products, Wesley Corp’s gastronomically groundbreaking invention that allows anyone to easily fill a patty of ground beef with bacon, olives, Nacho Cheese Doritos, what have you.
In May, the parties filed a joint discovery plan and the court subsequently ordered discovery to be completed by the following December. That process did not play out as smoothly as anticipated. As Judge Cleland’s opinion explains, by January, the defendants “have not produced a single document.”
“Instead, Defendants repeat the same objection to nearly every request for production. Defendants also repeat the same objection to nearly every interrogatory.”
That objection will probably look familiar:
ZOOM objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and without waiving its objection, ZOOM indicates it does not have any responsive documents within its possession, custody and control.
“Defendants do not explain why an interrogatory is vague, in what way it is overly broad, or provide any explanation of undue burden or harassment,” Judge Cleland writes. “No information is given in support of the claim that an interrogatory seeks irrelevant information.” The same is true of the responses to requests for production. It is, as the court characterizes it, simply “foot-dragging obstructionism”.
Such boilerplate objections are counter to the Federal Rules, the court explains:
Rule 33(b)(4) requires that objections to interrogatories be made “with specificity” and provides that “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Rule 34(b)(2)(B) requires that objections to requests for production “state with specificity the grounds for objecting to the request.” Rule 34(b)(2)(C) further demands that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.”
Sanctionable Boilerplate
“Courts and commentators have called on courts to deter boilerplate by imposing sanctions with their inherent power and under Federal Rule of Civil Procedure 26,” Judge Cleland notes.
Indeed, in his all-caps condemnation of boilerplate objections, Judge Bennett laid out exactly how such sanctions should be sought. In Liguria Foods, Inc. v. Griffith Labs, Inc. (another meat-based controversy, pairing rancid sausage to Zoom T.V.’s stuffed burgers) Judge Bennett writes:
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.
Judge Bennett in turn invited his colleagues to do their part by imposing ever more punishing sanctions:
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. [...] 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.
And so plaintiffs here sought sanctions and so Judge Cleland imposed them.
“The court agrees that in light of Defendants’ conduct in discovery, and in light of the need to deter future use of boilerplate, a sanction in the form of attorney fees is warranted,” Judge Cleland determined, agreeing to impose fees for the hours incurred in connection with the plaintiffs' motion to compel.
Will lawyers now abandon their form responses to discovery? Will this sanction be the first and last boilerplate-induced punishment handed out by the courts?
No. As Judge Cleland writes, “[P]erhaps 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.” But it's a start.
Unreformed boilerplate lovers, it's time to change your ways—or face sanctions.
This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
