MARK W. BENNETT, District Judge.
This litigation is about who is responsible for tons and millions of dollars' worth of sausage, of the peperoni variety, some of which turned rancid. It's also about lawyers who were not concerned about how the federal discovery rules were made, but how and why they flaunted them. This ruling involves one of the least favorite tasks of federal trial and appellate judges—determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to "boilerplate" discovery objections.
Rule 1 of the Federal Rules of Civil Procedure states that the Rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Nevertheless, modern "litigation" practice all too often disregards that admonition and seems to favor wars of discovery attrition. "[A]lthough the rule is `more aspirational than descriptive,'" it can, nevertheless, inform the courts' authority to sanction discovery misconduct.
I know that I am not alone in my goal of eliminating "boilerplate" responses and other discovery abuses, because the goal is a worthy one.
Thus, while I find the task distasteful, I embark on my consideration of whether the conduct of the parties in this case warrants sanctions for discovery abuses.
Plaintiff Liguria Foods, Inc., (Liguria) is a pepperoni and dried sausage manufacturer with its principal place of business in Humboldt, Iowa. Liguria's most popular product is a finished pepperoni product called "Liguria Pepperoni," although Liguria makes other kinds of pepperoni, as well. Defendant Griffith Laboratories, Inc., (Griffith) is a manufacturer of food seasonings and spice blends with its principal place of business in Alsip, Illinois. Beginning in approximately 1994, Griffith sold mixes of custom spices to Liguria or its predecessor company, Humboldt Sausage. In late 2012 and early 2013, Liguria received complaints from customers that the Liguria Pepperoni, which contains Griffith's Optimized Pepperoni Seasoning, was prematurely turning green and grey, within 140 to 160 days after production, even though Liguria Pepperoni was supposed to have a shelf life of 270 days from slicing. After this problem arose, Liguria lost several of its longstanding customers.
Eventually, Liguria concluded that Griffith's Optimized Pepperoni Seasoning contributed to the premature spoliation of its Liguria Pepperoni. On July 3, 2014, Liguria filed a Complaint asserting claims for breach of implied warranty of fitness for a purpose and breach of implied warranty of merchantability. Griffith filed an Answer denying the substance of Liguria's claims. Throughout this litigation, Griffith has contended, inter alia, that either underlying problems in Liguria's raw meat supply or Liguria's "rework"
In my review of another discovery dispute between the parties, raised in Griffith's January 12, 2017, Emergency Motion To Address Possible Discovery Abuses, the issue now before me, which involves potentially obstructionist discovery responses by both parties, came to my attention. In preparing for a hearing on January 23, 2017, on Griffith's Motion, I reviewed some of Liguria's written responses to Griffith's discovery requests attached to the Motion. I noted discovery responses that I suspected or believed were abusive and/or not in compliance with the applicable rules, but mere "boilerplate" objections. At the hearing on January 23, 2017, after questioning Griffith's lead counsel and hearing his candid responses, I indicated my belief that it was likely that Griffith's written responses to Liguria's discovery requests were also abusive "boilerplate" responses. Consequently, I directed the parties to file, under seal, all their written responses to each other's discovery requests by the following day. I also notified counsel of my intention to impose sanctions on every attorney who signed the discovery responses, if I determined that the responses were, indeed, improper or abusive. The parties filed their written responses to discovery requests, as directed, the following day.
After reviewing those discovery responses, I entered an order advising the parties that I suspected that the discovery responses listed in the following table were improper:
Liguria's responses to Griffith's interrogatories and requests for production of documents were signed by local counsel on behalf of Liguria's lead attorneys, who have their offices in Chicago, Illinois. Griffith's pertinent discovery responses were signed by its lead attorney, who also has offices in Chicago, Illinois. At the January 23, 2017, hearing, I ascertained that local counsel for both parties had acted essentially as "drop boxes" for filings, but did not have any active role in formulating the discovery responses in question.
The relevant pretrial matters can be summarized quite briefly. On July 3, 2014, Liguria filed a Complaint asserting claims for breach of implied warranty of fitness for a purpose and breach of implied warranty of merchantability, and, on August 29, 2014, Griffith filed an Answer denying the substance of Liguria's claims. The trial has been reset to begin on May 1, 2017.
On January 27, 2017, I entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing. In the Order To Show Cause, I directed that every attorney for the parties who signed a response to interrogatories or a response to a request for documents in this case, with the exception of local counsel, appear and show cause, at a hearing previously scheduled for March 7, 2017, why he should not be sanctioned for discovery abuses.
On February 28, 2017, the parties filed those briefs, as directed. Those briefs were Liguria's Brief In Response To Section II Of The Order To Show Cause Of January 27, 2017, and Griffith's Response To Order To Show Cause.
In its brief in response to the Order To Show Cause, Liguria states that, based upon its review of my Order To Show Cause, the applicable Federal Rules of Civil Procedure, and its discovery responses, it recognizes that many of its objections are not stated with specificity. Liguria asserts, nevertheless, that it has not interposed any objection "for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation," pursuant to Rule 26(g)(1)(B)(ii). Liguria also points out that some of its objections did interpose explanations to justify their basis, such as the ones that I identified, supra, in notes 8 and 9. In addition, Liguria argues that it did so in its responses to Interrogatories Nos. 2 and 18 and Request For Production No. 1.
In its brief in response to the Order To Show Cause, Griffith, like Liguria, states that its written responses to Liguria's discovery requests were not intended for any improper purposes and that the parties have, in fact, conducted this litigation in a cooperative and professional manner. Griffith also contends that a magistrate judge has already reviewed various of Griffith's responses and found no fault with them. Griffith contends 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, and myriad other issues in this complex case. Indeed, Griffith contends that the eleven statements in its discovery responses that I identified in my Order To Show Cause do not constitute discovery abuses. This is so, Griffith argues, because the responses were intended to preserve any objection, but not for harassment or delay, and they did not require any additional work or expense by Liguria. Griffith contends that certain of its responses were intended to narrow the privilege issues or protect information until an appropriate protective order was entered, or were intended to narrow the relevant time frame, where the parties have had a relationship since at least 1995, but the problems at the center of the litigation arose only in late 2012. Counsel for Griffith does acknowledge that, in light of my concerns expressed at the January 23, 2017, hearing and in the Order To Show Cause, four of its responses were not helpful nor well-constructed, but nevertheless were not in bad faith or for any improper purpose, and another response could have been "more artful" to indicate an intent to supplement that response later.
The first part of the hearing on March 7, 2017, was devoted to the issues raised in my Show Cause Order. Counsel for both parties candidly admitted that there were no published decisions that allowed or condoned the sort of "boilerplate" objections that I had pointed out in the Show Cause Order. Counsel for both parties also represented that, notwithstanding the "boilerplate" objections, they had conferred professionally and cordially and had been able to resolve most discovery issues by consultation, with what I agree was surprisingly little need for intervention by the court in such a complicated case involving such voluminous discovery.
As to the question of why counsel for both sides had resorted to "boilerplate" objections, counsel admitted that it 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. Indeed, one of the attorneys indicated that some clients—although not the clients in this case—expect such responses to be made on their behalf. I believe that one of the attorneys hit the nail squarely on the head when he asserted that such responses arise, at least in part, out of "lawyer paranoia" not to waive inadvertently any objections that might protect the parties they represent. Even so, counsel for both parties admitted that they now understood that such "boilerplate" objections do not, in fact, preserve any objections. Counsel also agreed that part of the problem was a fear of "unilateral disarmament." This is where neither party's attorneys wanted to eschew the standard, but impermissible, "boilerplate" practices that they had all come to use because they knew that the other side would engage in "boilerplate" objections. Thus, many lawyers have become fearful to comply with federal discovery rules because their experience teaches them that the other side would abuse the rules. Complying with the discovery rules might place them at a competitive disadvantage.
Returning to the matter of the conduct of counsel in this case, counsel for both parties reiterated that their relationship has been professional and effective in narrowing the scope of discovery requests. They represented that the responses with which I had taken issue, and which they admitted were improper under the Federal Rules of Civil Procedure, were taken by counsel in this case as signals of a need or desire to narrow discovery requests, and a desire for discussion, rather than as refusals to provide responses or indications of any intent to impede or improperly delay discovery. Thus, while they admitted that both sides had made improper discovery responses, they suggested that this was a poor case in which to impose sanctions, because there had been no bad faith and no real detriment or impediment to discovery.
Furthermore, counsel for both parties sincerely pledged not to engage in such improper discovery practices in the future and to work within their firms to change the way their firms do things. They also both suggested that they would be willing to put together courses or continuing legal education programs for lawyers or law students about the applicable discovery rules and proper and improper discovery objections. They also raised legitimate concerns that sanctions could impede their ability to obtain pro hac vice admission in other jurisdictions, which they suggested was a negative consequence out of proportion to their conduct in this case, which had involved an effective working relationship between opposing counsel despite whopping defiance of discovery rules and court decisions.
Although it was the second issue to arise, I find it appropriate to rule, first, on the Order To Show Cause, relating to what I believed were obstructionist discovery responses by both parties. Having considered the parties' arguments, I now confirm that belief as to all or nearly all the responses that I identified. The question of whether or not to impose sanctions, in light of such improper responses, is a much more difficult issue, however, because I find that this case involved courteous and professional attorneys who worked together in good faith to resolve discovery disputes without the need for intervention by the court.
Unfortunately, experience has taught me that attorneys do not know or pay little attention to the discovery rules in the Federal Rules of Civil Procedure. I preface this discussion with an observation by United States District Judge Paul W. Grimm, of the District of Maryland, who was, at the time, a member of the Advisory Committee on Civil Rules, and the Chair of the Discovery Subcommittee, and David S. Yellin, a litigation associate with a New York law firm:
Hon. Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 S.C. L. REV. 495, 495-96 (2013) (citations omitted). Furthermore, "[b]y some estimates, discovery costs now comprise between 50 and 90 percent of the total litigation costs in a case" and "[d]iscovery abuse also represents one of the principal causes of delay and congestion in the judicial system." Beisner, Discovering A Better Way, 60 DUKE L.J. at 549. It is ignoring the applicable Federal Rules of Civil Procedure that I find is at least partially responsible for the increase in the costs and delays of discovery.
Thus, I will begin my analysis with the rules that are pertinent, here. In this case, I am concerned with responses to interrogatories and document requests, which are specifically governed by Rules 33 and 34 of the Federal Rules of Civil Procedure, respectively. Nevertheless, Rule 26 also establishes important requirements for all discovery.
The first part of Rule 26 that is significant, here, is Rule 26(b), which defines the scope of permissible discovery, generally, as follows:
FED. R. CIV. P. 26(b)(1) (emphasis added).
The Eighth Circuit Court of Appeals has explained that Rule 26(b)(1) does not give any party "the unilateral ability to dictate the scope of discovery based on their own view of the parties' respective theories of the case," because "[l]itgation in general and discovery in particular . . . are not one sided." Sentis Grp., Inc. v. Shell Oil Co., 763 F.3d 919, 925 (8th Cir. 2014). Nor is discovery "limited to material that might be deemed relevant and admissible at trial," because it "is a[n] investigatory tool intended to help litigants gain an understanding of the key persons, relationships, and evidence in a case and, as this case well illustrates, the veracity of those persons and purported evidence, even if the evidence discovered is later deemed not admissible." Id. at 926. Furthermore, a party is wrong to suppose "that the concepts of materiality, relevancy, and discoverability are fixed rather than fluid such that parties cannot change their views of the necessity of certain information or their theories of the case during the course of discovery as new facts and relationships are revealed or explained." Id.
As a counterbalance to the breadth of permissible discovery set out in Rule 26(b), Rule 26(c) provides, "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more [listed limitations]." FED. R. CIV. P. 26(c)(1). In short, as I explained more than a decade-and-a-half ago, "as long as the parties request information or documents relevant to the claims at issue in the case, and such requests are tendered in good faith and are not unduly burdensome, discovery shall proceed." St. Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000). "The party resisting production bears the burden of establishing lack of relevancy or undue burden." Id. at 512. I have found nothing to suggest that a more restrictive view of the scope of discovery is now the norm.
Rule 26(d) sets out requirements for the timing of discovery that are pertinent, here. Specifically, Rule 26(d)(1) provides that, generally, a party may not seek discovery before the parties' discovery conference, but Rule 26(d)(2) provides that document requests pursuant to Rule 34 may be delivered `[m]ore than 21 days after the summons and complaint are served on a party." Rule 26(d)(3) sets out the rule for the "sequence" of discovery, as follows:
FED. R. CIV. P. 26(d)(3) (emphasis added). Indeed, the Advisory Committee Notes, 1970 Amendments explain, "[One] principal effect[] of the new provision [is] . . . to eliminate any fixed priority in the sequence of discovery. . . . In principle, one party's initiation of discovery should not wait upon the other's completion, unless the delay is dictated by special considerations." Thus, Rule 26(d)(3) makes clear that there is no limitation on the sequence of discovery and that a party cannot delay responding to discovery simply because the other party has not yet responded to its discovery.
Rule 26(b)(5) is also relevant, here, because it recognizes the propriety of asserting privileges in response to interrogatories or document requests, but it also requires more than bald assertions of privilege, as follows:
FED. R. CIV. P. 26(b)(5)(A) (emphasis added). The Eighth Circuit Court of Appeals recognized, some time ago, that Rule 26(b)(5) codified a common process for eliminating time-consuming delays in the determination of privilege issues by requiring the party asserting the privilege to provide the party seeking discovery with a list or log that describes the pertinent documents without disclosing the allegedly privileged communications they contain. PaineWebber Grp., Inc. v. Zinsmeyer Trusts P'ship, 187 F.3d 988, 992 (8th Cir. 1999). Thus, Rule 26(b)(5)(A)'s requirement of a privilege log as part of any privilege-based objection to discovery is nothing new.
Finally, Rule 26(e) is relevant, here, because it imposes obligations to correct or supplement prior discovery answers, as follows:
Fed. R. Civ. P. 26(e).
The discovery responses at issue, here, are to requests for interrogatories, pursuant to Rule 33, and requests for production of documents, pursuant to Rule 34. The specific requirements of Rules 33 and 34 at issue are the requirements for objections. Rule 33 provides, in pertinent part, as follows:
FED. R. CIV. P. 33(b)(4) (emphasis added). Similarly, Rule 34 provides, in pertinent part, as follows:
FED. R. CIV. P. 34(b)(2)(B) & (C) (emphasis added).
The key requirement in both Rules 33 and 34 is that objections require "specificity." As I explained a decade-and-a-half ago, "the mere statement by a party that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection"; "[o]n the contrary, the party resisting discovery must show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive." St. Paul Reins. Co., Ltd., 198 F.R.D. at 511-12 (internal quotation marks and citations omitted). In other words, "merely assert[ing] boilerplate objections that the discovery sought is vague, ambiguous, overbroad, unduly burdensome, etc. . . . without specifying how each [interrogatory or] request for production is deficient and without articulating the particular harm that would accrue if [the responding party] were required to respond to [the proponent's] discovery requests" simply is not enough. Id. at 512. Again, I have found nothing to suggest that such responses are now considered adequate; rather, there is precedent too ample to cite, in both the Eighth Circuit and the Seventh Circuit, where the lead attorneys for both sides have their offices, demonstrating the insufficiency of such responses.
Although Rule 33 contains an express "waiver" provision, explaining that a party has waived "[a]ny ground not stated in a timely objection," Rule 34 does not. Nevertheless, as a magistrate judge of this court recently explained, that does not mean that inadequate responses to requests for documents do not constitute waivers:
Sellars v. CRST Expedited, Inc., No. C15-0117, 2016 WL 4771087, at *2 (N.D. Iowa Sept. 13, 2016) (footnote omitted). The court then listed factors to consider in determining whether to excuse a waiver, and conditions under which courts will impose a waiver. Id.
Although the federal discovery rules were intended to facilitate discovery and refocus cases on the legal merits, "the discovery process has supplanted trial as the most contentious stage in litigation." London, Resolving the Civil Litigant's Discovery Dilemma, 26 GEO. J. LEGAL ETHICS at 837. Improper discovery responses necessarily add to the contentiousness of litigation, because they start with non-disclosure as their premise.
The recitation, in the preceding section, of the specific requirements of the applicable discovery rules highlights what is wrong with the sort of "boilerplate" objections that the parties used in this case, but it does not address their full negative impact:
Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 916. There may also be practical consequences for the party who asserts such objections. "District courts often repeat the warning: `Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.'" Id. (citing Walker v. Lakewood Condo. Owners Ass'n, 186 F.R.D. 584, 587 (C.D. Cal. 1999) (citations omitted); Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) ("[J]udges in this district typically condemn boilerplate objections as legally inadequate or meaningless." (citations omitted) (internal quotation marks omitted)); Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., No. 09-CV-11783, 2011 WL 669352, at *2 (E.D. Mich. Feb. 17, 2011) (refusing to consider "[b]oilerplate or generalized objections")); see id. at 918-19 (identifying other reasons that "boilerplate" objections are disfavored).
I now find, without doubt or hesitation, that the discovery responses by the parties in this case that I identified as potentially abusive and/or not in compliance with the applicable rules, but mere "boilerplate" objections, are just that. I am not convinced that the possible exceptions to the "boilerplate" objections that I noted in two of Liguria's responses or the three additional responses that Liguria now cites are sufficient to "show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive." St. Paul Reins. Co., Ltd., 198 F.R.D. at 511-12. Even if I accepted all five of the responses that Liguria has identified as adequate, there are certainly plenty of others that are not.
First, as I suggested, in the table, above, several discovery responses by both parties violate Rule 26(d). It is not a valid objection that interrogatories or requests for documents are "premature" if, as is the case here, they were propounded after the time specified in Rule 26(d)(1) or (d)(2) and there was no order specifying the timing of discovery on any specific issues. Rule 26(d)(3) also makes clear that there is no limitation on the sequence of discovery and that a party cannot delay responding to discovery simply because the other party has not yet responded to its discovery. FED. R. CIV. P. 26(d)(3)(B); see also id., Advisory Committee Notes, 1970 Amendments. Moreover, it is not an "objection" at all, and certainly not a valid one, that a party may not have a response or responsive documents, yet, or that the party may have to supplement its response later, because Rule 26(e) imposes that very obligation to supplement responses. See id. at 26(e).
The parties' attempts to invoke privileges as the bases for various objections, as indicated in the table, are, likewise, deficient, because they violate the requirements of Rule 26(b)(5)(A)(iii). Conspicuously absent from either parties' objections based on "privileges" is the required list or log that describes the pertinent documents without disclosing the allegedly privileged communications they contain. FED. R. CIV. P. 26(b)(5)(A)(iii); PaineWebber Grp., Inc., 187 F.3d at 992. Thus, the responses improperly hampered, rather than facilitated, the timely and inexpensive determination of privilege issues. PaineWebber Grp., Inc., 187 F.3d at 992 (the privilege log requirement codified in Rule 26(b)(5) was designed to eliminate time-consuming delays in the determination of privilege issues).
The rest of the discovery responses identified in the table fail the "specificity" requirements of Rules 33(b)(4) and 34(b)(2) in various ways, while utterly failing to carry the objecting party's burden to demonstrate lack of relevance or undue burdensomeness under Rule 26(b)(1). St. Paul Reins. Co., Ltd., 198 F.R.D. at 511. As the Eighth Circuit Court of Appeals has explained, an objecting party does not have "the unilateral ability to dictate the scope of discovery based on their own view of the parties' respective theories of the case," so that a "lack of relevance" objection, without explanation, is contrary to the rules. Sentis Grp., Inc., 763 F.3d at 925. When, as here, an objecting party makes no attempt to "show specifically how . . . each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome or oppressive," and no attempt to "articulat[e] the particular harm that would accrue if [the responding party] were required to respond to [the proponent's] discovery requests," but relies, instead, on "the mere statement . . . that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant," the response "is not adequate to voice a successful objection"; instead, the response is an unacceptable "boilerplate" objection. St. Paul Reins. Co., Ltd., 198 F.R.D. at 511-12 (internal quotation marks and citations omitted). Moreover, simply stating that a response is "subject to" one or more general objections does not satisfy the "specificity" requirement, because, for example, it leaves the propounding party unclear about which of the numerous general objections is purportedly applicable as well as whether the documents or answers provided are complete, or whether responsive documents are being withheld. See, e.g., FED. R. CIV. P. 34(b)(2)(C).
I also reject Griffith's argument that its general objections to discovery requests or its "boilerplate" objections to certain specific requests were to assure that Griffith was not waiving its rights while the parties met and conferred about the scope of privileges, pertinent time periods, and a myriad of other issues in this complex case. As I pointed out, above, under both Rule 33 and 34, any ground not stated in a timely objection is waived, unless the court excuses the failure. Sellars, 2016 WL 4771087 at *2. Indeed, the idea that such general or "boilerplate" objections preserve any objections is an "urban legend." Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 925-26 (quoting Carmichael Lodge No. 2103, Benevolent & Protective Order of Elks of U.S. of Am. v. Leonard, No. CIV S-07-2665 LKK GGH, 2009 WL 1118896, at *4 (E.D. Cal. Apr. 23, 2009)). Chief Justice Menis E. Ketchum II of the West Virginia Supreme Court of Appeals had particularly harsh yet insightful condemnations for such practices:
Chief Justice Menis E. Ketchum II, Impeding Discovery: Eliminating Worthless Interrogatory Instructions And Objections, 2012-JUN W. VA. L. 18, 19 (2012) (citation omitted). He then observed,
Id. at 20 (citation omitted).
Thus, the general objections and the "boilerplate" objections to specific requests did not preserve the parties' rights, or, at the very least, they ran a substantial risk of delaying and increasing the costs of discovery, because they provided the opposing party with no clue how to begin narrowing the issue, and because the court might have to become involved to determine whether any waiver should be excused. Sellars, 2016 WL 4771087 at *2. A better approach to preserving rights and narrowing the scope of discovery, and one likely to cause less ultimate delay and expense, would be to request an extension of time to respond and to confer on troublesome discovery requests. Yet another approach would have been to request an ex parte and in camera review of certain documents by a magistrate judge, who might quickly render an opinion on whether the documents in question were discoverable.
This litany of discovery abuses leads to the question of whether sanctions are appropriate for such misconduct. I am not alone in thinking that more frequent application of sanctions by trial judges might have a beneficial impact. As Chief Justice Kechum wrote,
Chief Justice Ketchum II, Impeding Discovery, 2012-JUN W. VA. L. at 21 (emphasis added); accord Jarvey, Boilerplate Discovery Objections, 61 DRAKE L. REV. at 932 ("Judges are in a unique position to deter the use of unethical boilerplate discovery objections. Unlike attorneys, judges may rely on their authority to issue sanctions under Federal Rule of Civil Procedure 26 and on the inherent power of the court. In order to curb boilerplate objections, judges should be more willing to dole out sanctions against lawyers who abuse the discovery process by issuing these objections." (footnotes omitted). On the other hand, as I pointed out at the beginning of this decision, imposing sanctions is an odious task. As one commentator has observed,
Beckerman, Confronting Civil Discovery's Fatal Flaws, 84 MINN. L. REV. at 511. I turn to the court's authority to impose sanctions and whether doing so is appropriate in this case.
As I have pointed out, "Rule 26(g) of the Federal Rules of Civil Procedure imposes on counsel and parties an affirmative duty to conduct pretrial discovery in a responsible manner." St. Paul Reins. Co., Ltd., 198 F.R.D. at 515 (citing FED. R. CIV. P. 26(g), Advisory Committee Notes to 1983 Amendments). The Rule specifically requires certification that the responses or objections to discovery requests are "not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." FED. R. CIV. P. 26(g)(2)(B). Thus, this Rule allows the court to impose sanctions on the signer of a discovery response when the signing of the response is incomplete, evasive, or objectively unreasonable under the circumstances. St. Paul Reins. Co., Ltd., 198 F.R.D. at 515. Even if the opposing party "did not seek sanctions pursuant FED. R. CIV. P. 26(g), the court has authority to make a sua sponte determination as to whether Rule 26(g) sanctions should be imposed." Id. Rule 26(g)(3) states, "The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation." FED. R. CIV. P. 26(g)(3). The Eighth Circuit Court of Appeals has rejected the notion "that it is an abuse of discretion for a district court to impose something other than the minimally punitive sanction available within the range of possible sanctions," flatly stating, "[i]t is not." Sentis Grp., Inc., 763 F.3d at 926.
More specifically, as to the basis for determining whether sanctionable conduct has occurred and what sanctions to apply, I have explained as follows:
St. Paul Reins. Co., Ltd., 198 F.R.D. at 516 (footnotes omitted).
Liguria proposes that, if I conclude that sanctions are appropriate, notwithstanding Liguria's contention that it did not make its responses for any improper purposes, the proper sanction is the submission of a presentation to either (1) a group of civil litigation trial attorneys at the Chicago Bar Association or Illinois State Bar Association, or (2) a group of law students at a Chicago area law school engaged in an advanced civil procedure course covering the rules of discovery. Liguria suggests that such a presentation include the following topics: (a) Rules 26, 33, and 34 of the Federal Rules of Civil Procedure; (b) proper approaches to propounding and responding to discovery requests; and (c) reasons why "boilerplate" objections are improper.
Griffith argues that, as to the matters identified in the Show Cause Order, this case does not involve the sort of extreme misconduct in discovery that should warrant sanctions. Nevertheless, Griffith's counsel professes to having no objection to participating in a continuing legal education program or providing such a program, regarding the problems relating to "boilerplate objections," or to writing an article on those problems for the court to review and approve. Griffith asserts, however, that under the facts of this case to impose a sanction, rather than a voluntary undertaking, would constitute an abuse of discretion.
Ordinarily, I would likely find the parties' use of what they admit are "standard," albeit plainly improper, responses to discovery requests is objective evidence of intent to delay or impede discovery. St. Paul Reins. Co., Ltd., 198 F.R.D. at 517. Although I find that it makes a very poor jury instruction on "intent" for lay jurors, "[i]t is a well-accepted proposition that one ordinarily intends the natural and probable consequences of one's actions." See, e.g., Red River Freethinkers v. City of Fargo, 764 F.3d 948, 955 (8th Cir. 2014). The "natural and probable consequences" of "boilerplate" objections is delay and impediment of discovery, not the narrowing of issues and the avoidance of expense and delay toward which the discovery rules are aimed. Ordinarily, I would also likely find that the impropriety of employing such frivolous objections in every single discovery response also demonstrates the parties' obstructionist attitude toward discovery and would further confirm suspicions that the responses were interposed for an improper purpose. Cf. St. Paul Reins. Co., Ltd., 198 F.R.D. 517.
I conclude that this is not an "ordinary" case where the parties' responses to discovery were not only contrary to the applicable rules and "improper," but warrant some sanction. In this case, I do not have lawyers who are not "brave enough to appear in front of juries," but able trial lawyers; nor do I find that they focused on "pusillanimous objections" as an end in themselves or as part of a campaign to avoid timely and just disposition of this case. Compare Chief Justice Ketchum II, Impeding Discovery, 2012-JUN W. VA. L. at 21. The parties agree, and I find, that they have had a cooperative and professional relationship during discovery, at least until the issues addressed in Griffith's Motion arose. Indeed, it appears to me that counsel for the parties did everything that the court might expect them to do to confer and cooperate to work out issues about the scope of discovery. It is also clear to me that both parties' reliance on improper "boilerplate" objections is the result of a local "culture" of protectionist discovery responses, even though such responses are contrary to the decisions of every court to address them. Notable by their absence from the parties' responses to the Order To Show Cause are citations to any published rulings of any court approving the kind of "boilerplate" responses that the parties used in this case, and the parties did not try to raise frivolous defenses for their conduct when called on it. The fact that the parties were able to work out most of their discovery disputes through consultation and cooperation is a clear indication that their "boilerplate" responses were completely unnecessary to protect any supposed rights or interests, but they do not warrant sanctions, in the circumstances presented, here.
I have suggested, more than once, in this opinion that judges should be more involved in trying to eliminate discovery practices that are improper. Indeed, nearly twenty years ago, a commentator explained that all of the groups of lawyers involved in his conversations with large-firm litigators "pointed to judges as pivotal to changing how the system operates." He cautioned,
Nelson, The Discovery Process as a Circle of Blame, 67 FORDHAM L. REV. at 804-05. One resource available to judges, when they encounter attorneys willing to do so, is to use those attorneys to spread proper practices, rather than improper ones
Thus, I strongly encourage counsel for both parties to take the steps that they have volunteered to take to improve discovery practices at their own firms and to educate their colleagues and law students on proper discovery responses. I would be gratified to see the parties prepare presentations to either (1) a group of civil litigation trial attorneys at the Chicago Bar Association or Illinois State Bar Association, or (2) a group of law students at a Chicago area law school engaged in an advanced civil procedure course covering the rules of discovery and, in particular, (a) Rules 26, 33, and 34 of the Federal Rules of Civil Procedure; (b) proper approaches to propounding and responding to discovery requests; and (c) reasons why "boilerplate" objections are improper. Because no sanctions are imposed, I neither require them to do so nor need to review what they intend to do. These are very honorable, highly skilled, extremely professional and trustworthy lawyers. The legal culture of "boilerplate" discovery objections will not change overnight. I trust these lawyers to do their part, as I will do mine.
Federal discovery rules and the cases interpreting them uniformly finding the "boilerplate" discovery culture impermissible are not aspirational, they are the law. What needs to be done? I am confident, based on the sincere representations from lead counsel in this case, that they will be ambassadors for changing the "boilerplate" discovery objection culture in both their firms. I also encourage them to change the "boilerplate" culture with other firms that they come up against in litigation. I encourage all lawyers, when they receive "boilerplate" objections, to informally request that opposing counsel withdraw them by citing the significant body of cases that condemn the "boilerplate" discovery practice. If opposing counsel fail to withdraw their "boilerplate" objections, the lawyers should go to the court and seek relief in the form of significant sanctions—because the offending lawyers have been warned, given a safe harbor to reform and conform their "boilerplate" discovery practices to the law, and failed to do so.
The second part of this process is for judges to faithfully apply the discovery rules and put an end to "boilerplate" discovery by imposing increasingly severe sanctions to change the culture of discovery abuse. I realize my judicial colleagues, especially state trial court judges, are overwhelmed with cases, deluged with discovery matters, likely sick and tired of them, and lack the resources needed to deal with them in as timely a manner as they aspire to. In my view, the imposition of increasingly severe sanctions will help solve the problems. Lawyers are advocates and trained to push the envelope—rightly so. Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the "boilerplate" discovery culture and do our part to solve this cultural discovery "boilerplate" plague. Like Chief Justice Ketchum, I am convinced that "[s]tiff sanctions by judges for each violation would have a dramatic effect on these unauthorized boilerplate objections. The word would spread quickly, and the practice would suddenly stop."
The addiction to "boilerplate" discovery objections has been exacerbated by an unintended consequence of a 1980 amendment to Rule 5 of the Federal Rules of Civil Procedure. That amendment exempted interrogatories and requests for documents, as well as their responses, from filing with the court. The rationales—"the added expense" of copying and the "serious problems of storage in some districts"—made some sense at the time.
To address the serious problem of "boilerplate" discovery objections, my new Supplemental Trial Management Order advises 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.
I recall the words of a former U.S. Attorney General in a different context: "Each time a [person] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, [they] send[] forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance."
The conduct identified in the Show Cause Order does not warrant sanctions, notwithstanding that the conduct was contrary to the requirements for discovery responses in the Federal Rules of Civil Procedure. 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.
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, 914-16 (2013) (footnotes omitted).
For example, I note that, in 1986—a full three decades ago—the A.B.A. Commission on Professionalism "encouraged judges to impose sanctions for abuse of the litigation process, noting that the Federal Rules permit the imposition of sanctions for such abuse." See Cary, Rambo Depositions, 25 HOFSTRA L. REV. at 594 (emphasis added) (citing A.B.A. Comm'n on Professionalism, ". . . In the Spirit of Public Service:" A Blueprint for the Rekindling of Lawyer Professionalism, 112 F.R.D. 243, 265, 291-92 (1986)). Thus, calls for judges to be more willing to punish discovery abuses came from the bar, as well as from commentators and the bench.
Beisner, Discovering a Better Way, 60 DUKE L.J. at 574 (also discussing economic consequences of the "litigation tax").
After defining and prohibiting other obstructionist discovery conduct, the Supplemental Trial Management Order imposes an "affirmative duty to notify the court of alleged discovery abuse" and warns of the possibility of sanctions, as follows:
