Towards a More Professional Discovery Response

Published June 2012
By: David P. Ackerman and Dana E. Foster

Most of us respond to discovery requests in ways that appear evasive and uncooperative.  We don’t mean it, but that is the way it appears in writing.

We have handy boilerplate objections we use for any discovery request, no matter how reasonably framed.  (This is the sin of forms: when you have a form nearby, you feel compelled to use it.)  Then, after asserting all the general objections imaginable, we respond to each specific discovery request by again repeating boilerplate objections.  Most of these objections are justified only by the most hypertechnical or legalistic reading of the request or interrogatory.

Some of the objections traditionally recited are completely unnecessary or meaningless.  Consider these objections:

  • The Requests attempt to impose obligations extending beyond those authorized by the Florida Rules of Civil Procedure.
  • The Requests seek documents that are not in Defendant/Plaintiff’s possession, custody or control.
  • The Requests are irrelevant, overly broad, vague and ambiguous.
  • The Requests seek the production of documents that are neither relevant to any claim or defense, nor reasonably calculated to lead to the discovery of admissible evidence.
  • The Requests seek the production of documents that are unreasonably cumulative,  that are otherwise publicly available or that are available from another source that is less burdensome or less expensive.

Or these objections to interrogatories:

  • The Interrogatories exceed the requirements in Florida Rule of Civil Procedure 1.350.
  • The Interrogatories define the term “document” in a manner that is overly broad, vague and includes information which would be unduly burdensome to locate.

You know these are no fun to read, so imagine how a judge must feel when we put this gobbledygook in front of her.  Again, we mean no harm.  We had the objections in our computer and this is how we have been doing it for years.  They mean nothing to us or, for that matter, opposing counsel.

We have been unable to find a single case where any court anywhere has ever held that the failure to recite these boilerplate objections was at all important to a discovery decision.  We have only found cases where courts criticize them.  One of the strongest examples is in St. Paul Reinsurance Co., Ltd. v. Commercial Financial Corp., 198 F.R.D. 508 (N.D. Iowa 2000), where the court sua sponte reviewed a party’s boilerplate objections to a discovery request and found them wholly unsupported.  The court then sanctioned the objecting attorney by ordering him to write and publish an article on why the objections were improper.  The opinion explains:

[T]he litany of plaintiffs’ boilerplate objections are unsubstantiated because they fail to show specifically how each discovery request is burdensome, oppressive or any of the other grounds upon which they base their objections by submitting affidavits or offering evidence revealing the nature of the objections.  Moreover, this is not a case where one, or even two, of the six objections asserted by plaintiffs are obstructionist, boilerplate and improper.  Rather, every single objection is obstructionist, boilerplate, frivolous and contrary to federal law.  This court will not countenance such abusive discovery tactics.

This is not the only judge annoyed by this practice.  See also Hy-Ko Prods. Co. v. Hillman Group, Inc., No. 5:09MC32, 2009 WL 3258603, at *2 (E.D.N.C. Oct. 8, 2009) (“In the usual instance, objections to discovery which simply recite stock phrases are not colorable.”); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D.Md.2008) (“[B]oilerplate objections … are improper unless based on particularized facts.”); PLX, Inc. v. Prosystems, Inc., 220 F.R.D. 291, 293 (N.D.W.Va.2004) (“The mere recitation of the familiar litany that an interrogatory or document production request is overly broad, burdensome, oppressive and irrelevant will not suffice.”).

We should address this clear source of pain for our courts by assuming our objections will one day be read by a judge and that we will want that judge to think we have behaved reasonably.  So throw out those old boilerplate objections and let’s try something like this in the preface to our response:

  • We have interpreted each request in a reasonable fashion in a good faith effort to endeavor what is being asked for.  We have not given any hypertechnical or overly expansive meanings to the requests.
  • We will endeavor to produce the hard copies of documents maintained in the ordinary course of their business.  We propose to produce those files in that fashion in accordance with Rule 1.350(b).
  • We have not undertaken a search of all possible places for electronically stored information.  We expect that the parties will reach an agreement on the mode and format of production of electronically stored information, as well as a cost sharing method.  If the parties are unable to do so, we reserve the right to object on the basis of cost and proportionality.
  • If, after our production of responsive documents, the opposing party believes that a more extensive search is warranted, we believe the parties should discuss and if need be, seek a court conference to address the specifics of an additional search.

Then, for each specific response, let’s remember:  The purpose of a discovery response is to communicate objections based upon specific facts and circumstances, preserve privilege positions and to communicate information about the manner in which the documents or information will be produced.  The idea is to distinguish those documents and information which will be provided from those which will not and for those that will not, to articulate a reasonable and provable basis for objecting.  We should leave the door open for a later discussion with opposing counsel.  The discussion will fulfill the prehearing conference requirement which all courts require before hearing a discovery motion.  It will also allow us to manage the costs and volume of information produced, as well as to revisit what seemed like a valid objection at the time.

In conclusion, give it a try and see if this approach does not reduce your discovery headaches.