Breaking the Boilerplate Habit in Civil Discovery

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider how they might contribute to the cause, we offer three points of guidance. First, while boilerplate objections get the most attention, boilerplate requests are an equal part of the problem. The 2015 amendments target both. Second, we must be careful not to equate “pattern” with boilerplate. As several recent projects have shown, the use of topic-specific discovery protocols—which use carefully-crafted standard requests—can start the parties on the path to tailored, targeted, efficient, and fair discovery. Third, judges should resist using waiver as a standard sanction for boilerplate objections. When the responding party has no viable objections to make, waiver provides no deterrence against boilerplate objections. And when the discovery requests exceed the boundaries of permissible discovery, waiver can lead to the parties getting bogged down in the discovery of irrelevant matters. While judges are often reluctant to go down the path of imposing cost sanctions, in many cases that approach will supply both a more effective deterrent and a more calibrated response. The goal is worth it; reducing boilerplate in discovery is an important step toward achieving proportional discovery