The Other Boilerplate: How Some Corporations Can Obstruct Discovery In Consumer Lawsuits

Consumers who sue large corporations are always at a disadvantage. Among the many advantages the corporate defendant has is information.

Imagine in typical case. A large mortgage servicer demands money from a consumer. The consumer doesn’t owe the money. Months pass, and no matter how many times the consumer explains, the calls and the letters keep coming.

If that consumer sues the mortgage servicer to make the harassment stop, she will have a few collection letters, she will know that she got a lot of collection calls. But she will be missing a lot of information that is important to her case – information that the mortgage servicer has, such as call logs, training manuals, records of all the times she told it that the debt was not owed.

If the consumer sues, she should be able to get all of that from the servicer through the process of discovery. Discovery is meant to make both parties in a lawsuit put their cards on the table, exchanging all the relevant information about the case. That way, both sides have a better idea of how strong the case is and they will be better able to settle the case without a trial.  Rule 26 of the Federal Rules of Civil Procedure states in relevant part that

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Obviously, there are going to be disagreements about what information is relevant, and whether the information is protected from discovery for some other reason. Such disagreements begin with an objection. Unfortunately, some businesses (and their lawyers) misuse objections. Like their consumer contracts, they write objections in boilerplate, something like this:

The defendant objects to this request on the grounds that it is over-broad and unduly burdensome. The defendant also objects that the request seeks information which is not relevant to this proceeding and fails to seek information reasonably calculated to produce admissible evidence. The defendant also objects that the request calls for the production of documents that are subject to attorney-client privilege, litigation privilege, or are trade secrets.

This objection, cut and pasted may be given to every discovery request the consumer’s lawyer makes. This is a boilerplate objection. It is so vague that it is impossible for the consumer’s lawyer to tell whether there is a genuine objection and what kind of information the objection might be hiding. The only way to find out is for the lawyer to spend time (and therefore money) asking the court to force the defendant to answer the request. Only then may the lawyer find out that the objection hid a vital document (or that the objection was in fact perfectly legitimate, or related to a document that really wasn’t relevant). This process wastes the time of attorneys and the the courts.

Unsurprisingly, courts often criticize boilerplate discovery objections. Many courts, including the Federal District Court for Maryland, have said that boilerplate discovery objections are meaningless and operate as a waiver of any objection: “failure to make particularized objections to document requests constitutes a waiver of those objections” Sabol v. Brooks, 469 F. Supp. 2d 324 (D. Md. 2006).