On Laundry List Objections To Written Discovery

About 5 or 6 years into my career, I was covering a deposition for another lawyer in a personal injury case.  I was there representing one of several defendants.  An attorney representing another defendant, who was probably only 2 or 3 years into his career, was cross examining the witness.  He was from a pure insurance defense firm – all they did was defend these kind of suits, and they did a lot of them.  And he was working off a script that, apparently, he had neither prepared nor given much thought to.  He began to ask a series of questions that were nonsensical and off-topic for the case at hand.  Everyone in the room was shooting sideways glances at each other, each hoping someone knew what was going on.  Finally, the witness had enough and put it to the lawyer: “why are you asking me these questions?”  The lawyer responded with a mixture of self-awareness, embarrassment, and refreshing candor: “I don’t know.  They’re just on this list and I have to ask them.  I’ll skip the rest.”  That is, believe it or not, a true story.

An unthinking approach to discovery in civil litigation is relatively rare in the context of taking depositions.  But it is far more common in the context of responding to written discovery – i.e., interrogatories and requests for production of documents – particularly in the lodging of objections.  It is common to see a litany of “General Objections” made at the outset of responses to written discovery.  Also common, but not nearly as universal is the assertion of all of the typical objections in laundry list fashion.  You know all of the objections: that the request is overly broad and unduly burdensome; that the request is vague and ambiguous; etc., etc. Such objections are often lodged whether the objection fits or not.  Frequently, the end result is negligible because a response to the request is given subject to the objection (and without waiving it!).

However, in federal court at least, if one is going to stand on an objection as a basis for refusing disclosure of information or documents, the objection had better be stated with specificity and supported by a detailed explanation of why the particular interrogatory or request is objectionable.  This is an explicit requirement of the rules governing interrogatories and requests for production of documents.  See Fed.R.Civ.P. 33(b)(4) and 34(b)(2)(B); see also United States v. Quebe, No. 3:15-cv-294, 2017 U.S. Dist. LEXIS 9005, at *70 (S.D. Ohio Jan. 23, 2017) (“objections to interrogatories must be specific and supported by [a] detailed explanation of why the interrogatories are objectionable”); In re Peregrine Fin. Grp. Customer Litig., No. 12 C 5546, 2015 U.S. Dist. LEXIS 34829, at *11-12 (N.D. Ill. Mar. 20, 2015) (“[i]t is well-established that such generalized boilerplate objections have no effect. Courts have repeatedly warned litigants who oppose discovery that their "burden cannot be met by a reflexive invocation of the same baseless, often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence”).

So, to ensure that the objection is upheld, one should explain why the objection is being made.  Personally, I always explain an ambiguity objection by reference to the word, and if not obvious from the context, the ways in which it could be construed.  I frequently cite case law in my objections, particularly where the discovery request is seeking information that is irrelevant to the legal analysis at hand.  For example, in insurance coverage litigation, the coverage determination is made by reference to the allegations in the complaint and the language of the policy.  In response to an interrogatory in a federal coverage suit that sought identification of “all facts related to the Claims and Allegations asserted in the Underlying Complaint which you contend make coverage under each Policy applicable,” I objected thusly:

“[My clients] do not contend that ‘facts related to the Claims and Allegations asserted in the Underlying Complaint’ make coverage applicable, because under applicable Kentucky law, Plaintiffs’ duty to defend is determined by the allegations of the complaint in the Underlying Litigation (as well as any facts known to the insurer at the time of making a coverage determination).  See Aetna Cas. & Sur. Co. v. Com., Ky., 179 S.W.3d 830, 841 (2005) (“an insurer has a duty to defend if there is any allegation which potentially, possibly or might come within the coverage terms of the insurance policy.”); see also, Louisville/Jefferson Cnty Metro Gov't v. Whitlock, 2015 Ky. App. Unpub. LEXIS 364, *9 (Ky. Ct. App. May 22, 2015) (“[t]he duty [to defend] arises from the ‘outset of litigation’ and continues to the point of establishing that liability upon which plaintiff was relying was in fact not covered by the policy and not merely that it might not be,” citing, James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., Ky., 814 S.W.2d 273, 279 (1991)); see also, KSPED LLC v. Va. Sur. Co., 567 Fed. Appx. 377, 383 (6th Cir. 2014) (holding that, under Kentucky law, the decision whether to defend is made “by reference to the complaint and known facts.”).”

The benefits of well-explained objections to written discovery go beyond satisfying the “specificity” requirement of Fed. R. Civ. P. 33, it also sends a message to the party seeking discovery that you’ve done your homework in making this objection.  That same message is conspicuous by its absence if your responses to each and every interrogatory and request for production involves the same laundry list of objections with no explanation for why you contend the objection applies.

Note for Ohio and Kentucky practitioners in the state courts of each state, the rules are not as explicit about this specificity requirement.  Ohio and Kentucky’s Rule 33 read identically and simply say that if an objection is made to an interrogatory, “the reasons for objections shall be stated in lieu of an answer.”  See Kentucky CR 33.01(2); Ohio Civ. R. 33(A)(3).  Both states’ enactments of Rule 34 also require that objections “be stated” (although there are some textual differences in the rules due to Ohio’s rule specifying that the requested form of production may be objected to).  See Kentucky CR 34.02(2) and Ohio Civ. R. 34(B)(1).  You don’t see much – if anything – on how these clauses should be interpreted, especially in reference to the more specific language in the comparable federal rules.  I suspect this is because in both the  Ohio and Kentucky court systems, trial court decisions on discovery are rarely published or made available in research databases like Westlaw or Lexis (unlike like federal district court decisions which so often are available).