Late last year, Magistrate Judge Horan issued a 62 page opinion (available here) in Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014). The opinion is notable in many respects, as it provides important guidelines that should be followed when responding to discovery requests in the Northern District of Texas. Below are what I believe to be the highlights of the decision (which should be read in full by those practicing in the Northern District of Texas). Many of the practices criticized in the opinion will come as a surprise to many if not most attorneys practicing in the Northern District of Texas (including those who will remain nameless!).
General Discovery Obligations
Judge Horan noted:
- Counsel have “an obligation, as officers of the court, to assist in the discovery process by making diligent, good-faith responses to legitimate discovery requests.”
- Rule 26(g) was enacted “to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party.” It was also enacted “to bring an end to the equally abusive practice of objecting to discovery requests reflexively—but not reflectively—and without a factual basis.” Rule 26(g) “and its commentary are starkly clear: an objection to requested discovery may not be made until after a lawyer has paused and consider[ed] whether, based on a reasonable inquiry, there is a factual basis [for the] . . . objection.”
General, Generic Objections (Otherwise Known As “Boilerplate” Objections) Are Not Permitted And Are Invalid
Judge Horan stated:
- General, generic objections violate the Federal Rules and are invalid. Objections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections.
- So-called boilerplate or unsupported objections—even when asserted in response to a specific discovery request and not as part of a general list of generic objections preceding any responses to specific discovery requests—are likewise improper and ineffective and may rise (or fall) to the level of what the Fifth Circuit has described as “an all-too-common example of the sort of ‘Rambo tactics’ that have brought disrepute upon attorneys and the legal system.”
- Counsel should cease and desist from raising these free-standing and purportedly universally applicable “general objections” in responding to discovery requests. Deploying these general objections in this manner is . . . inconsistent with the Federal Rules and is not warranted by existing law.
Do Not State That Interrogatory Responses Are Not Admissions And There’s No Need To Reserve The Right To Supplement Interrogatory Responses
With respect to interrogatory responses, Judge Horan held:
- Disavowing interrogatory responses as “admissions of any nature,” flies in the face of Rule 33(c)’s provision that “[a]n answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.”
- Any statement reserving the “right” to supplement discovery responses “merely reflects an already existing duty, pursuant to Fed. R. Civ. P. 26(e).”
Procedure For Responding to Discovery Requests
Judge Horan stated that the following is a correct statement of how to properly respond to discovery requests:
- A party served with written discovery must fully answer each interrogatory or document request to the full extent that it is not objectionable and affirmatively explain what portion of an interrogatory or document request is objectionable and why, affirmatively explain what portion of the interrogatory or document request is not objectionable and the subject of the answer or response, and affirmatively explain whether any responsive information or documents have been withheld.
- “In responding to [Rule 34] discovery requests, a reasonable inquiry must be made, and if no responsive documents or tangible things exist, the responding party should so state with sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.”
- “If responsive documents do exist but the responsive party claims lack of possession, control, or custody, the party must so state with sufficient specificity to allow the Court (1) to conclude that the responses were made after a case-specific evaluation and (2) to evaluate the merit of that response.”
- To comply with the requirements to support withholding any responsive document or information as privileged or protected work product, a privilege log or equivalent document complying with Federal Rule of Civil Procedure 26(b)(5)(A)’s requirements must be produced for any documents, communications, or other materials withheld from production on the grounds of attorney-client privilege, work product, or other privilege, immunity, or protection. A party may properly raise and preserve an objection to production of documents in response to a specific document request or interrogatory by objecting “to the extent” that the requests seeks privileged materials or work product, so long as the responding party also provides the information required by Rule 26(b)(5)(A).
Do Not Assert Objections And Then Answer “Subject To” or “Without Waiving” The Objections
Judge Horan did not have kind words for this practice:
- The practice of “respond[ing] to discovery requests by asserting objections and then answering ‘subject to’ or ‘without waiving’ their objections” should “not escape comment and is inextricably intertwined with the related practice of raising boilerplate objections without the specificity that the Federal Rules require and about which Plaintiffs do complain. The practice of asserting objections and then answering ‘subject to’ and/or ‘without waiving’ the objections—like the practice of including a stand-alone list of general or blanket objections that precede any responses to specific discovery requests—may have developed as a reflexive habit passed on from one attorney to another without any attorney giving serious thought or reflection as to what this manner of responding means or could hope to accomplish as to a particular discovery request. Having reflected on it, the Court agrees with judges in this circuit and other jurisdictions that the practice of responding to interrogatories and documents requests ‘subject to’ and/or ‘without waiving’ objections is ‘manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.”
- The Court concludes that, outside of the privilege and work product context as discussed above, responding to a document request or interrogatory “subject to” and “without waiving” objections is not consistent with the Federal Rules or warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
- A responding party has a duty to respond to or answer a discovery request to the extent that it is not objectionable. [T]he Federal Rules dictate that a responding party must describe what portions of the interrogatory or document request it is, and what portions it is not, answering or responding to based on its objections and why. But if the request is truly objectionable—that is, the information or documents sought are not properly discoverable under the Federal Rules—the responding party should stand on an objection so far as it goes. If a responding party makes such an objection but answers or responds “subject to” and “without waiving” the objection, “[s]uch objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court.”
Vagueness/Ambiguous Objections
With respect to “vague and ambiguous” objections:
- [I]f part or all of an interrogatory is allegedly vague and ambiguous, the responding party, to comply with the Federal Rules, must, if possible, explain its understanding of the allegedly vague and ambiguous terms or phrases and explicitly state that its answer is based on that understanding. If an entire interrogatory or document request is truly so vague and ambiguous that the responding party cannot understand its meaning and what information it seeks, the party should stand on its objection and provide no answer at all or promise no production of responsive documents on the ground that the responding party simply cannot do so based on the discovery request’s wording. But making an objection to a request as vague and ambiguous, without more, and then fully answering the interrogatory or promising production of all documents responsive to the request “subject to” the vagueness and ambiguity objection betrays that the objection was made reflexively and without a factual basis.
“Overbroad” Objections
Many times discovery requests are overbroad. In such a situation:
- If a discovery request is overbroad, the responding party must, to comply with Rule 33 or Rule 34, explain the extent to which it is overbroad and answer or respond to the extent that it is not—and explain the scope of what the responding party is answering or responding to.
“Relevance” Objections
Judge Horan noted what to do if the discovery request seeks irrelevant information:
- If all or part of a discovery request seeks documents or information not even reasonably calculated to lead to the discovery of admissible evidence, the responding party should make a specific objection explaining how and to what extent the requested documents or information are not relevant and discoverable under the Rule 26(b) standard and stand on that objection as to the portion of the request that is so objectionable while specifically describing the portion, if any, of the request to which the responding party is answering or producing documents.
Demonstrating That A Discovery Request Is Overly Broad, Unduly Burdensome Or Oppressive
The following showing must be made to demonstrate that a discovery request is overly broad, unduly burdensome or oppressive:
- A party resisting discovery must show specifically how each interrogatory or document request is overly broad, unduly burdensome, or oppressive. This requires the party resisting discovery to show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Failing to do so, as a general matter, makes such an unsupported objection nothing more than unsustainable boilerplate.
- “The party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity.” “A party objecting on these grounds must explain the specific and particular way in which a request is vague.” The responding party “should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories. If necessary to clarify its answers, the responding party may include any reasonable definition of the term or phrase at issue.” Further, “[i]f a party believes that the request is vague, that party [should] attempt to obtain clarification prior to objecting on this ground.”
The “Everyone Else Was Doing It” Defense Won’t Fly
Judge Horan employed a “no excuses” policy to assessing sanctions:
- It is generally no defense to a Rule 26(g)(3) sanctions request to assert that many litigants and their counsel are similarly conducting themselves in discovery. Rather, that simply highlights the need to call this conduct out when it is presented and to provide a deterrent through a sanction, as the Federal Rules mandate here.
Sanctions Were Assessed
Judge Horan assessed sanctions against the Defendant, requiring it to pay plaintiffs’ reasonable attorneys’ fees incurred in connection with Defendant’s objectionable conduct. Judge Horan also ordered all of Defendant’s attorneys who represent Defendant “in litigation in federal court receive [to] review a copy of this Memorandum Opinion and Order on Discovery Sanctions.” Finally, Judge Horan noted: “The undersigned practiced civil litigation, had substantial experience with propounding and responding to discovery requests, and understands well the difficulties and challenges involved in both. But that experience only serves to make the Court hopeful that this opinion will assist counsel conducting discovery in this case and others going forward.”
(Certain citations and quotations from Judge Horan’s opinion have been omitted).
