Violating the Requirements of the Federal Rules of Civil Procedure

Do you respond to discovery requests in Federal civil cases with language like this?: “Defendant {or Plaintiff} objects to this request as overly broad, unduly burdensome, vague, ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence.” If you do, you’re violating the requirements of the Federal Rules of Civil Procedure (FRCP), which have required specificity in your objections since 2015.

Language like that is considered a “boilerplate” objection and courts are now routinely waiving objections like these as they violate the Rules. It’s important for parties in litigation today to be able to provide specificity associated with their objections to discovery requests or risk having them rejected out of hand and making your judge “boiling mad”.

FRCP Rule 34(b)(2)(B) and Rule 34(b)(2)(C)

The December 2015 changes in the Federal Rules included changes to these two rule sections, which now state:

  • (B) Responding to Each Item. For each item or category, the response must 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. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

  • (C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

After the rules changes were adopted, some courts initially ordered parties filing boilerplate objections to redo them, but nearly six years later, courts no longer have the patience to provide parties a second chance. For example, in this case from earlier this year, Illinois Magistrate Judge Jeffrey Cole rejected the defendants’ “boilerplate” objections, stating that “boilerplate objections are tantamount to making no objection at all”.

Example of an Objection with Specificity

In the 2017 case Solo v. United Parcel Service Co., the defendant objected to a plaintiff’s request for detailed package-specific information for a period going as far back as 2008 with a proportionality argument that noted that “the ‘package level detail’ requested by Plaintiffs is maintained in a ‘live’ format (i.e., a format that is easily accessible electronically) for only limited time period; it is then archived on backup tapes.” In addition, the defendant provided this level of specificity:

“UPS estimates that it would take at least six months just to restore the archived tapes as described above, at a cost of $120,000 in labor, requiring UPS employees to take on responsibilities outside of their regular duties. Further, that estimate does not include the time and expense of analyzing the data once extracted in order to answer Interrogatory No. 1, which would require extensive additional analysis of each account number and the manual review of contract language for individual shipper. Such a process would also require a substantial amount of time and resources on the part of UPS.”

The defendant also proceeded to provide an estimate of the information the plaintiff requested for the six-month period that was still available in the “live” format. In rejecting the plaintiff’s request, Michigan Magistrate Judge R. Steven Whalen agreed that the defendant showed that the level of data requested by the plaintiff “would be extraordinarily burdensome”. The defendant was able to provide considerable specificity to their objection and a proposed compromise that showed their willingness to cooperate in discovery.

Conclusion

For years before the 2015 FRCP rules changes, many attorneys learned to use boilerplate objections as a standard way of responding to requests in discovery, and some still haven’t learned that they’re no longer accepted by judges in Federal cases (or even many State and Local cases). You need to work with an experienced forensic and eDiscovery provider to generate the information needed to be best prepared to respond to discovery requests with the level of specificity that courts expect today. Don’t make your judge boiling mad!

For more information about Forensic Discovery’s Computer Forensics services, click here.

Published On: August 16th, 2021 / Categories: Digital Forensics, Expert Consulting and Testimony /

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