Breaking the Boilerplate Habit in Civil Discovery

Akron Law Review, Dec 2017

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider how they might contribute to the cause, we offer three points of guidance. First, while boilerplate objections get the most attention, boilerplate requests are an equal part of the problem. The 2015 amendments target both. Second, we must be careful not to equate “pattern” with boilerplate. As several recent projects have shown, the use of topic-specific discovery protocols—which use carefully-crafted standard requests—can start the parties on the path to tailored, targeted, efficient, and fair discovery. Third, judges should resist using waiver as a standard sanction for boilerplate objections. When the responding party has no viable objections to make, waiver provides no deterrence against boilerplate objections. And when the discovery requests exceed the boundaries of permissible discovery, waiver can lead to the parties getting bogged down in the discovery of irrelevant matters. While judges are often reluctant to go down the path of imposing cost sanctions, in many cases that approach will supply both a more effective deterrent and a more calibrated response. The goal is worth it; reducing boilerplate in discovery is an important step toward achieving proportional discovery.

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Breaking the Boilerplate Habit in Civil Discovery

The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals June 2018 Breaking the Boilerplate Habit in Civil Discovery Steven S. Gensler Lee H. Rosenthal Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Civil Procedure Commons Recommended Citation Gensler, Steven S. and Rosenthal, Lee H. (2017) "Breaking the Boilerplate Habit in Civil Discovery," Akron Law Review: Vol. 51 : Iss. 3 , Article 3. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol51/iss3/3 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Gensler and Rosenthal: Breaking the Boilerplate Habit BREAKING THE BOILERPLATE HABIT IN CIVIL DISCOVERY Steven S. Gensler* Lee H. Rosenthal** I. II. III. IV. Introduction ............................................................... 683 What do the 2015 Amendments Say About the Use of Boilerplate in Discovery? ...................................... 686 A. Boilerplate Objections ........................................ 687 B. Boilerplate Requests ........................................... 693 C. “Patterns” Can Be Good! Using Discovery Protocols to Promote Fairness and Proportionality. ................................................... 696 What Can Judges Do When Faced with Boilerplate Discovery? ................................................................. 699 A. The Landmark Cases........................................... 699 B. A Few Additional Observations.......................... 707 What Will It Take to Break the Boilerplate Habit? ... 711 A. Understanding the Boilerplate Problem .............. 711 B. Are Sanctions the Answer? Or at Least an Answer? .............................................................. 716 I. INTRODUCTION Boilerplate. The word elicits cringes from judges and lawyers alike. To see it is to understand the reaction. Stock, one-size-fits-all blocks of print inserted with little thought as to whether any, much less all, of the verbiage is warranted. Boilerplate has no place in civil discovery. It is the antithesis of what lawyers are supposed to do in making or responding to discovery requests. Boilerplate isn’t just empty content; it is the enemy of content. Each word of boilerplate reduces the clarity, value, and usefulness of the interrogatories, requests, responses, and objections it accompanies. 683 Published by IdeaExchange@UAkron, 2017 1 Akron Law Review, Vol. 51 [2017], Iss. 3, Art. 3 684 AKRON LAW REVIEW [51:683 Some judges have been saying for a long time that boilerplate is improper and will be ignored. 1 Yet boilerplate is found in almost all discovery requests and responses. If anything, lawyers seem to use it even more today than in the past. 2 Modern word-processing programs make cutting and pasting boilerplate virtually effortless. Fear (also known as “CYA”) makes it even more attractive. Boilerplate, it seems, has a * Gene and Elaine Edwards Family Chair in Law, University of Oklahoma College of Law. ** Chief Judge, United States District Court, Southern District of Texas. We want to thank the University of Akron School of Law for hosting this symposium and for inviting us to participate. Throughout this Article, we make many unfootnoted assertions from our combined decades of observation and experience. Some are based on Judge Rosenthal’s 25-plus years of experience on the bench. Some are based on what we heard and learned from lawyers and judges across the country as co-moderators of the 17-city “Rules Amendment Roadshow,” sponsored by the American Bar Association Section of Litigation and the Duke Center for Judicial Studies. See Lee H. Rosenthal & Steven Gensler, A Report from the Proportionality Roadshow, 100 JUDICATURE 14 (2016) (describing the roadshow and summarizing key findings). Some are based on our experiences as rulemakers. Judge Rosenthal served as Chair of the Standing Committee on Rules of Practice and Procedure from 2007 to 2011 and served as a member of and later Chair of the Advisory Committee on Civil Rules from 1996 to 2007. Professor Gensler served as a member of the Advisory Committee on Civil Rules from 2005 to 2011. The opinions and conclusions stated in this Article are our own and should not be attributed to any of the committees on which we have served. 1. See, e.g., St. Paul Reinsurance Co., LTD. v. Commercial Fin. Corp., 198 F.R.D. 508, 51113 (N.D. Iowa 2000) (extended criticism of boilerplate objections); Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999) (“Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.”); Athridge v. Aetna Cas. and Sur. Co., 184 F.R.D. 181, 190 (D.D.C. 1998) (“Aetna includes the standard, boilerplate ‘general objections’ section in its responses to plaintiffs’ request for production which includes blanket objections as to relevance, burdensomeness and attorney-client privilege and work product privilege. Such general objections do not comply with Fed. R. Civ. P. 34(b) and courts disfavor them.”); In re Aircrash Disaster Near Roselawn, Ind. Oct. 31, 1994, 172 F.R.D. 295, 306-07 (N.D. Ill. 1997) (“The aircraft defendants have alleged pat, generic, non-specific objections to each document request, repeating the familiar boilerplate phrase that each and every request is ‘vague, overly broad, unduly burdensome, and seeks information that is not relevant . . .’ The[se] objections are inconsistent with both the letter and the spirit of the Federal Rules of Civil Procedure.”); Obiajulu v. City of Rochester, Dep’t of Law, 166 F.R.D. 293, 295 (W.D. N.Y. 1996) (“Such pat, generic, non-specific objections, intoning the same boilerplate language, are inconsistent with both the letter and spirit of the Federal Rules of Civil Procedure.”); Roseberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980) (“To voice a successful objection to an interrogatory, GAF cannot simply intone this familiar litany. Rather, GAF must show specifically how . . . each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.”). 2. We are not aware of empirical studies on the incidence of boilerplate in discovery. We base this assertion on our own experiences and what we have heard and learned from talking with judges and lawyers around the country. We are certainly not alone in the belief that the boilerplate problem seems to be getting worse. See Chief Justice Menis E. Ketchum II, Impeding Discovery: Eliminating Worthless Interrogatory Instructions an (...truncated)


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Steven S. Gensler, Lee H. Rosenthal. Breaking the Boilerplate Habit in Civil Discovery, Akron Law Review, 2017, Volume 51, Issue 3,