Ride the Lightning

NO MORE WARNINGS: BOILERPLATE OBJECTIONS RISK SUBSTANTIAL SANCTIONS

April 18, 2017

And yes, the judge used all caps so I did too.

Cloud Nine's Doug Austin has a great blog post on In Liguria Foods, Inc. v. Griffith Laboratories, Inc., (N.D. Iowa Mar. 13, 2017). Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.

The case involved millions of dollars' worth of sausage that turned rancid. It became apparent to Judge Bennett (during a review of another discovery dispute) that both parties had submitted "obstructionist discovery responses" to each other during the discovery process. On January 27, 2017, Judge Bennett entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing, directing the parties to file, under seal, all their written responses to each other's discovery requests by the following day. Judge Bennett also notified counsel of his intention to impose sanctions on every attorney who signed the discovery responses, if he determined that the responses were, indeed, improper or abusive.

The parties filed their written responses to discovery requests, as directed, the following day. Based on his review of the discovery responses, Judge Bennett identified numerous discovery responses, from both sides, that he identified as improper in this ruling. According to Judge Bennett, the improper objections included:

"not reasonably calculated to lead to the discovery of admissible evidence";

"subject to and without waiving its general and specific objections";

"to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure"; and

"overbroad and unduly burdensome."

If you've ever litigated you know how often the words above appear in responses to discovery requests and how angry those words can make judges.

In its brief in response to the Order To Show Cause, the plaintiff acknowledged that many of its objections were not stated with specificity, but asserted that it had not interposed any objection "for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation" and that some of its objections did include explanations. The defendant, in its brief, stated that its written responses to the plaintiff's discovery requests were not intended for any improper purposes and that the parties had conducted the litigation in a cooperative and professional manner. The defendant also noted that a magistrate judge had reviewed various defendant responses and found no fault with them, contending that that both parties relied on standard "boilerplate" language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, among other issues.

Both sets of counsel ultimately admitted that the reason they used "boilerplate" objections had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the "culture" that routinely involved the use of such "standardized" responses.

You see what I'm talking about? It's everywhere and everyone (nearly) does it.

Judge Bennett evaluated each of the boilerplate objections, identifying violations of Rule 26(d), 26(b)(5)(A)(iii) and the "specificity" requirements of Rules 33(b)(4) and 34(b)(2). However, in part because the parties "did not try to raise frivolous defenses for their conduct when called on" the use of "boilerplate" sanctions, Judge Bennett declined to sanction the parties this time. Instead, he provided a new Supplemental Trial Management Order, advising the lawyers for the parties that "in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis."

Here is the full conclusion of the order with, as I noted earlier, all caps to drive home (presumably) how serious the judge is.

"NO MORE WARNINGS. IN THE FUTURE, USING "BOILERPLATE" OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS."

I've never met Judge Bennett, but after reading his words, I took an immediate shine to him.

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