April 5, 2021 – The use of boilerplate objections in response to written discovery – interrogatories, requests for documents, and requests for admissions – has proliferated in civil litigation, even though it has no basis under the rules.
All attorneys are familiar with the routine “form” boilerplate objections: relevance, overbroad, oppressive, burdensome, harassing, vague, ambiguous, attorney client-privilege, and attorney-work product, etc. The problem with using boilerplate objections has been heightened by the practice of prefacing discovery responses with a “general objections” section, which usually spans multiple paragraphs, if not pages.
To make the problem even worse, these general objections are typically incorporated by reference into each subsequent answer or response, unnecessarily obstructing the discovery process.
Boilerplate objections are routinely denounced by federal courts. Failing to specifically inform the requesting party of the basis for an objection creates uncertainty, because the requesting party cannot determine whether a discovery response is complete or whether discoverable information is being withheld unjustifiably.
Ralph J. Tease, Marquette 1981, is a managing partner of the Green Bay office of Habush Habush & Rottier, S.C., where he handles a wide range of personal injury and wrongful death cases.
David S. Blinka, U.W. 2012, is a shareholder in the Madison office of Habush Habush & Rottier, S.C. His practice encompasses personal injury cases, including wrongful death, products liability, and motor vehicle accidents.
Further, boilerplate objections lack sufficient information to allow courts to properly evaluate the merits of the objection being asserted, and as a result, cause delay, expense, and congestion in the administration of civil cases.1
The use of such form objections is an evasive and obstructive discovery practice that undermines the purpose of civil procedural rules that otherwise serve to promote the free exchange of discoverable information among parties. The assertion of these hollow objections results in excessive costs, time consuming activities, and, inevitably, motion practice.
Habitual use of boilerplate objections infuses a lack of civility into the litigation process, and trivializes the ethical and professional obligations of civil litigators.
For these reasons, Wisconsin state courts should align with the federal courts and not countenance the ongoing use of boilerplate objections.
State and Federal Discovery Rules Governing the Use of Objections
Wisconsin’s discovery rules mirror the Federal Rules of Civil Procedure in their design to “be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding” – compare Rule 1 and Wis. Stat. section 801.01(2).
This language provides the framework for general principles related to asserting objections to a discovery request:
objections must be stated with particularity, a principle that finds statutory support in Rule 34 and Wis. Stat. section 804.09, governing requests for documents;
the objecting party bears the burden of demonstrating why their objection is proper;2 and
the objecting party must provide sufficient information to enable other parties and the court to evaluate the applicability and propriety of the objection.
The use of boilerplate objections defies all of these well-grounded principles.
Boilerplate objections also violate Rule 26(g) and Wis. Stat. section 802.05(2), which impose a signature requirement on discovery responses and objections. Under section 802.05(2), the signature of the attorney certifies to the court that the objections are not being asserted “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Moreover, the objections must be warranted by existing law and have evidentiary support. Similar language is used under Rule 26(g).
When an attorney signs a discovery response document laden with boilerplate objections, that attorney fails to comply with the requirements of Rule 26(g) and section 802.05 – namely, that the objections are proper, legitimate, and warranted.
Both rules give the respective state or federal court the power to sanction attorneys whose discovery objections violate Rule 26(g) and section 802.05. The court may impose sanctions on its own initiative or upon a motion by one of the parties. This threat of sanctions should deter the rampant and illegitimate use of boilerplate objections, but only if courts reveal an inclination to enforce these rules.
Discovery Rules and Use of Objections
The responsibility of litigants to comport with these certification requirements also warrants an examination of what the discovery rules specifically authorize regarding the use of objections:
Interrogatories under Rule 33 and Wis. Stat. section 804.08: Both rules require an attorney to sign objections to the interrogatories. Section 804.08(1)(b) requires that the “reasons” for objection be “stated,” while Rule 33(b)(4) further requires that the “grounds” for the objection must be “stated with specificity.” Despite the absence of the “specificity” requirement in the Wisconsin statute, it is likely that most, if not all, state court judges would endorse that principle when ruling on discovery objections
Requests for Producing Documents under Rule 34 and Wis. Stat. section 804.09: Both rules require that the grounds for an objection must be stated with “specificity.” Rule 34(b)(2)(C) imposes an additional requirement that an objection must state whether responsive materials are being withheld on the basis of that objection. Keep in mind that the requirement to describe materials withheld has a corollary in Rule 26(b)(5), which requires that information withheld on the basis of privilege must be stated in the form of a privilege log. Once again, these sensible federal requirements should be readily endorsed by state court judges who have broad statutory authority to control discovery methods.3
Wisconsin courts should also take guidance from the Federal Rules of Civil Procedure Advisory Committee Note, 2015 Amendment, which indicates that Rule 34 was amended to eliminate:
the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.4
Nor should courts accept reasoning that boilerplate objections are listed to preserve the objections, for the federal courts have produced “a litany of decisions” finding that boilerplate objections are “improper unless based on particularized facts.”5
Proposed Solutions: Increased Scrutiny by Judges
While attorneys must undertake responsibility to manage discovery conflicts, those attempts are not always successful.
Though most discovery disputes need not find their way into court, for those that do, the courts are in a unique position to deter the use of boilerplate objections, particularly because federal and state judges may rely on their statutory authority to issue sanctions, respectively, under Rule 26(g) and Wis. Stat. section 802.05(3). If attorneys consistently choose to incorporate general, boilerplate objections into each response, state court judges should eagerly answer the call of federal courts to impose sanctions.6 Sanctions might include:
overruling the objections or finding that they are waived;
awarding attorney’s fees and costs to the aggrieved party; or
any other sanction that is “sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.”7
Conclusion: State Objections with Specificity
The use of boilerplate objections in response to written discovery requests continues to cause undue delay, excessive costs, and needless consumption of time in civil cases.
Litigators should recognize that the rules of civil procedure under both federal and Wisconsin law do not authorize the use of “form” boilerplate objections. Instead, they demand that objections be stated with specificity.
Like the federal courts, Wisconsin courts should not hesitate to take action and rely on statutory authority to sanction those who use boilerplate objections to evade discovery obligations. Ordering appropriate sanctions on attorneys who abuse the rules of discovery would incentivize them and others to carefully consider their legal and ethical obligations to the parties, the courts, and the efficacy of the civil justice system.
Sharpen Your Discovery Technique
Taking advantage of written discovery at an early stage in litigation helps identify sources of information for later discovery, and gives you additional background to prepare questions for an eventual oral deposition and other stages of your case. To sharpen your discovery techniques, consult Wisconsin Discovery Law and Practice from State Bar of Wisconsin PINNACLE©, where you not only get the authority on Wisconsin discovery law, you tap into the knowledge and experience of some of Wisconsin’s most successful litigators.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.
1 See Liguria Foods, Inc. v. Griffith Laboratories, Inc., 320 F.R.D. 168, 171, 182 (N.D. Iowa 2017).
2 See Heller v. City of Dallas, 303 F.R.D. 466, 491 (N.D. Tex. 2014).
3 See Wis. Stat. § 804.01(3).
4 Rule 34, Fed. Adv. Comm. Note, 2015 Amend.
5 Heller v. City of Dallas, 303 F.R.D. at 484 (internal citation omitted).
6 See Liguria Foods, 320 F.R.D. at 191 (stating that “[j]udges need to push back” and do their part to “solve this cultural discovery ‘boilerplate’ plague” because issuing sanctions for each violation would have a “dramatic effect” on the “unauthorized” use of boilerplate objections).
7 Wis. Stat. § 802.05(3)(b).