General Objections, Dracula, and “Whac a Mole”

In 1968, the movie “Dracula Has Risen from the Grave” was released.  Like Dracula, despite being long since buried, boilerplate “general objections” keep popping up in what sometimes looks like the children’s game of “Whac a Mole.”

It is difficult to understand why the message about boilerplate “general objections” has not gotten out.  It certainly has long been clearly and repeatedly stated.

Most recently, in Carlton & Harris Chiropractic Inc. v. PDR Network, LLC, 2024 WL 1451124, at *1 (S.D. W. Va. Apr. 3, 2024), the court addressed discovery answered in February 2024, and wrote:

Plaintiff points out that Defendants included general and boilerplate objections in their responses to discovery, which are not acceptable in this circuit. Defendants’ responses are a perfect example of how not to answer discovery requests. Defendants preface their responses with a litany of “General Objections” which are expressly incorporated into each specific response and are “in addition to” any specific objection. Courts in this circuit disfavor general objections. See, e.g., Mainstreet Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) (mere recitation of the familiar litany that a request is overly broad, burdensome, oppressive, and irrelevant does not constitute a specific objection); Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W. Va. 2010) (“general objections to discovery, without more, do not satisfy the burden of the responding party … because they cannot be applied with sufficient specificity to enable courts to evaluate their merits.”); Mills v. East Gulf Coal Preparation Co., LLC, 259 F.R.D. 118, 132 (S.D.W. Va. 2009) (“boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable.”). These “General Objections” raise the protection for proprietary information, the attorney-client privilege, and attorney work product protection; they object to vagueness, ambiguity, duplication, burdensomeness, and over breadth; they reserve Defendants’ right to supplement or revise answers; they refuse to produce documents belonging to third parties; and other such nonsense. Of course, they apply only “to the extent” that they are applicable.

The “General Objections” are absolutely improper. Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358–59 (D. Md. 2008) (court disapproves of a general objection asserted “to the extent” that it applies). By raising these non-particularized objections, Defendants run the risk of waiving any valid objections that may exist. Id. at 359; see also Mezu v. Morgan State University, 269 F.R.D. 565, 573 (D. Md. 2010). Indeed, if there were any responses to which Defendants should have asserted a privilege and supplied a privilege log, those tasks should have been done at the time of the responses. The “General Objections” will not preserve a privilege or any protection from discovery.

Despite listing “General Objections” that are incorporated into every response, Defendants nonetheless reassert many of them in the actual answers. The answers are so enmeshed in objections that it is impossible to discern whether the responses are complete. Answering discovery requests in this manner reflects poor lawyering. A lawyer should not throw every conceivable objection at a discovery request and then expect the adverse party to determine which objections might apply. Duplicative, repetitive, boilerplate objections do nothing but confuse the reader and dodge the question. Such a litigation tactic is prohibited in federal court. Quite frankly, the undersigned is astounded and troubled that, despite clear and established case law holding that such objections are improper, counsel for Defendants asserted unsupported and insupportable general objections in response to every discovery request.

Having said this, because many of the requests were clearly beyond the scope of the limited discovery allowed, or were disproportional to the needs of the case, the general objections were not considered in the undersigned’s rulings. However, Defendants are admonished to eliminate all general, unsupported objections from their supplemental answers to Interrogatory No. 9 and Request for Production No. 10.

Id.

In addition to Judge Grimm’s decisions in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354, 358–59 (D. Md. 2008), and Mezu v. Morgan State University, 269 F.R.D. 565, 573 (D. Md. 2010), which were cited above, many other decisions and commentators reach the same result.

For example:

“Allstate has presented eight prefatory general objections in laundry-list fashion that do not go to any particular discovery request. The objections are simply boilerplate language that could be cut-and-pasted into any discovery response and they are not enough to preserve any specific objections. Accordingly, the Court OVERRULES Allstate’s General Objections No. 1-8.”   Robison v. Allstate Fire and Casualty Insurance Company, 2024 WL 1343107, at *2 (W.D. Wash. Mar. 29, 2024).

“Federal discovery rules and the cases interpreting them uniformly finding the ‘boilerplate’ discovery culture impermissible are not aspirational, they are the law.”  Liguria Foods, Inc. v. Griffith Lab’ys, Inc., 320 F.R.D. 168, 190 (N.D. Iowa 2017).

“[I]ncorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).”  Fischer v. Forrest, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017).

“Boilerplate, general objections standing alone waive any actual, specific objections.”  State Farm Fire & Cas. Co. v. Admiral Ins. Co., 225 F. Supp. 3d 474, 485 (D.S.C. 2016).

“[A]ll of the District’s general objections, when not referenced in response to specific discovery requests, are overruled. The District shall not rely on any general objection as a basis for withholding further discovery.”  DL v. D.C., 251 F.R.D. 38, 43 (D.D.C. 2008).

Commentators agree:

“Despite the widespread use of boilerplate objections in discovery responses, the order in Sanders-Cochran makes plain that they are improper. Many circuit courts will upon request overrule general and boilerplate objections and compel supplemental responses or grant motions to strike the objections in their entirety.”  Aaron N. Maples, “Why You Should Always Challenge General and Boilerplate Objections in Written Discovery Response,” 40 Ala. Ass’n Just. J. 84, 85 (2020).

Lawyers must “forgo the ‘familiar litany’ of general objections in favor of specifically supporting each objection individually…. Boilerplate objections also violate numerous rules of civil procedure and ethics….”  Matthew L. Jarvey, “Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them,” 61 Drake L. Rev. 913, 918 (2013).

“While it is common practice for attorneys to include boilerplate and general objections when responding to discovery, unless it is specifically tied to a particular request, it is increasingly being viewed as improper.”  Stephen L. Rossetti Jr., Erica A. Dumore, “The Scope and Relevancy of Discovery: Another Look at Rule 26 of the Federal Rules of Civil Procedure,” Fed. Lawyer, March/April 2021, at 16, 17.

General objections are not always improper.

“[G]eneral objections should be very limited….  General objections should be used only if the objections apply to all the document requests or are expressly incorporated by reference in the sub-set of requests to which they are being asserted to avoid repeating the objection.”  The Sedona Conference, “The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf. J. 447, 472 (2018).

However, Sedona adds an important qualifier: “[T]he reason for the objection still must be specified in order to facilitate a meaningful discovery conference.”  Id. at 472.

I suggest that the qualification takes the objection out of the realm of a boilerplate general objection.

The Sedona Conference provides some examples, not all of which are reproduced here:

“Privilege Objection. Responding Party will not produce information protected from disclosure by the attorney-client privilege or the attorney work-product doctrine. If any documents are withheld from production on the basis of any such privilege, other than those excluded by the parties pursuant to the Joint Case Management Conference Statement, a privilege log will be served on the requesting party within fourteen (14) days of production of documents from which such protected documents were withheld.”

However, in my mind, because of the temporal undertaking to produce a privilege log, that is not a “general” objection.

And, Sedona states that: “Boilerplate general objections, even if made out of ‘an abundance of caution,’ are not allowed. As Rule 34 makes clear, and as a growing number of courts are holding, such objections may result in a waiver of the objection or even the imposition of sanctions.”  Id. at 474.

UPDATE:  Kelly Twigger, Still Using General Objections? See How One Party’s Use Led to Waiver | Association of Certified E-Discovery Specialists (ACEDS) – JDSupra (Apr. 17, 2024)(“Ultimately, while sparing the plaintiffs from a privilege waiver, the Court made it clear that all other objections were waived, attributing this to the plaintiffs’ failure to comply with their discovery obligations in a timely and specific manner.”).

This blog was initially posted on April 12, 2024, at  Electronic Discovery Reference Model.