In almost every lawsuit, as part of the discovery process, the parties will exchange information relevant to the claims and defenses at issue. Discovery, however, is rarely as easy or collaborative as it should be. To the contrary, parties routinely will refuse to produce materials responsive to well-tailored discovery requests without offering anything more than rote, unspecific responses to explain their tenuous positions. In most cases, the objecting party ultimately will produce the requested documents, but only after forcing its opponent to waste time and money exchanging correspondence and participating in meet and confers. Recognizing this unnecessary strain on resources, Delaware courts have spent the better part of a decade waging a not-so-quiet war on boilerplate objections.
Leading the charge on that front are jurists from the Delaware Court of Chancery, who refuse to allow parties to withhold discovery based on the limited details found in formulaic objections. See Transcript of Motion to Compel Argument, Lake Treasure Hldgs. Ltd. v. Foundry Hill GP, C.A. No. 6546-VCL (Sept. 11, 2012) (“Lake Tr. at __”); Transcript of Motion to Compel Argument, Glidepath, Ltd., et al. v. Beumer Corp. et al., C.A. No. 12220-VCL (Del. Ch. Oct. 6, 2016) (“Glidepath Tr. at __”). The Court has emphasized that the point of discovery responses is for the objecting party to detail for its adversary “what [it is] planning not to do” and why. Lake Tr. at 22. Otherwise, parties will waste time and money engaging in letter writing campaigns in order to flesh out objections that should have been described in the “first response.” Lake Tr. at 22; see also Hammer v. Howard Medical, Inc., 2017 WL 1167550 (Del. Super. Feb. 14, 2017) (Stokes, J.) (granting a motion for sanctions, fees, costs against an objecting party for the continued use of general “irrelevant” or “not applicable” objections to interrogatories despite the requesting party’s efforts to seek clarification through correspondence and motion practice).
Thus, when faced with the generic assertion that discovery requests are overly broad and unduly burdensome, the Court of Chancery has refused to allow such objections to stand unless the objecting party explains how the request caused undue burden. Lake Tr. at 20–21, 30; Glidepath Tr. at 20–21. The Court similarly has opined that where a party seeks to avoid discovery as irrelevant, that party must explain why it thinks that the information sought is not relevant. Lake Tr. at 30; Glidepath Tr. at 20–21; see also Prod. Res. Grp., L.L.C. v. NCT Grp., Inc., 863 A.2d 772, 802–03 (Del. Ch. 2004) (then-Vice Chancellor Leo E. Strine, Jr. found that it was “unjustified” and “foolishly inconsistent” with the issue of the case for the objecting party to refuse to produce certain documents or answer certain interrogatories based on generic objections concerning the relevance or inadmissibility of the evidence). The Court of Chancery also has determined that a party cannot refuse to produce documents simply because those materials are either thought already to be in possession of the requesting party or equally accessible to the requesting party. Lake Tr. at 29–30; Glidepath Tr. at 21. There, Vice Chancellor Laster reasoned that “unless [a party] is psychic, he doesn’t know what is in the possession of the other side” or whether the requesting party still has the documents they seek. Lake Tr. at 21.
Due to recent amendments to the Federal Rules of Civil Procedure, Vice Chancellor Laster’s sensible approach to boilerplate objections appears to be gaining popularity with federal judges. That sea change was spurred by the addition of language to Rule 34(b)(2)(B), which requires an objecting party to “either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” In light of that amendment, Magistrate Judge Andrew J. Peck, in Fischer v. Forrest, Case No. 1:2014 cv 01304 (S.D.N.Y. Feb. 28, 2017), issued the “wake-up call” to practitioners that federal courts would no longer accept boilerplate objections. Accordingly, Judge Peck admonished the objecting party in the Fischer case for refusing to produce responsive documents, without explaining the basis for its position that the underlying requests were overly broad and unduly burdensome. Judge Peck further warned that without a clear indication of whether and why responsive material is being withheld, future objecting parties will be found to have waived their respective objections.
Similarly, in Liguria Foods, Inc. v. Griffith Laboratories, Inc., Case No. C14-3041 (N.D. Iowa Mar. 13, 2017), the parties barely avoided sanctions after District Court Judge Mark W. Bennett concluded that they had abusively utilized boilerplate objections in order to obstruct each other’s ability to conduct discovery. Judge Bennett, however, as part of his 45-page decision, issued a “Supplemental Trial Management Order,” in which he warned that strict reliance on boilerplate objections would result in substantial sanctions. Id. at p. 42. In support of the crusade against boilerplate objections, Judge Bennett sounded the horn to his judicial colleagues, stating: “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.” Id. at p. 41.
The good news for Delaware lawyers whose practice takes them before federal judges is that the Court of Chancery has long prepared us to avoid the shortsighted trap of rote, boilerplate objections.