Still Using General Objections? See How One Party’s Use Led to Waiver

Do boilerplate objections put your case at serious risk? Discover how the Delaware Chancery Court's decision in Bocock v Innovate Corp. challenges conventional practices in ediscovery. Join me, Kelly Twigger, on the Case of the Week podcast as we unravel the consequences of general objections and potential waivers under the 2015 federal rules amendment. This episode promises to equip you with cutting-edge insights into cost recovery, attorney-client privilege, and how to effectively handle the burden of discovery in litigation. Whether you are a litigator or simply intrigued by the complexities of electronically stored information, there's a wealth of knowledge waiting for you.

In this episode, we dissect the timeline and pivotal moments of the Bocock case, highlighting the plaintiffs' costly misstep of failing to deliver specific discovery responses—a misstep that led to a crucial motion to compel. Gain a deeper understanding of the court's stance on the necessity for detailed responses and what it means for your litigation strategy. With actionable insights and analysis, this episode will help you navigate the evolving landscape of e-discovery, ensuring you stay ahead of the game. Subscribe now to enrich your legal expertise and gain practical strategies for your next case.

 Bocock v. Innovate Corp.,
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Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on eDiscovery, visit eDiscovery Assistant and explore our practical tools, case law library, and on-demand education from the eDiscovery Academy. Join us next episode as we break down another important case shaping the future of eDiscovery.

Transcript

Kelly Twigger: 0:13

Welcome to the Case of the Week podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. I'm Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, with more than 25 years of experience navigating the evolving landscape of litigation and eDiscovery. I'm a practicing attorney, author, speaker, entrepreneur and now podcaster who works as a discovery strategist and expert for clients at ESI Attorneys and to provide that knowledge to all legal professionals through our e-discovery assistant platform. In each episode, we'll tackle a new decision in e-discovery case law and how it shapes both your litigation strategy and planning for risk mitigation. If you're ready for blunt, actionable insights that keep you ahead of the curve, and maybe a few laughs along the way, this is your go-to podcast. Subscribe or follow now to start embracing the episode of the Case of the Week series brought to you by eDiscovery Assistant.

Kelly Twigger: 1:36

This week's decision raises the issue of general objections and the potential waiver implications following the amendment to the federal rules to civil procedure in 2015. That requires specific objections to an individual interrogatory or request for production. All right, let's dive into this week's decision. It comes to us from Bocock v Innovate Corp. This is a state court decision from the Delaware Chancery Court, and this decision comes to us from Vice Chancellor Paul Fiavorante, dated December 6, 2023. Now, as always, we add the issues associated with each decision in our e-discovery system database, and this week's issues include cost recovery, attorney-client privilege, attorney work, product waiver, sanctions and general objections. Now, as we dive into the facts of this case, please note that this is an unpublished ruling, so you will need to check with your court rules as to whether or not this decision can be cited. We always note decisions that are unpublished in e-discovery assistant with a yellow banner at the top of the case and a note that you need to make a decision of determination as to whether or not you can cite those decisions to the court. You're in All right.

Kelly Twigger: 2:48

We are before the court on a motion to compel discovery responses and seeking costs for the motion, in which the defendants are asking the court to find that plaintiffs have waived all of their objections based on plaintiff's failure to respond to defendants' discovery requests. Let's start with, as we often do on Case of the Week, the timeline that's relevant to the motion, and pay attention especially to the amount of time that lapses between the complaint and when the plaintiffs are actually arguing their motion before the court, as well as what they have provided in that time frame. On June 23, 2021, 26 plaintiffs filed this complaint. The court dismissed the majority of the plaintiff's claims more than a year later, on October 28, 2022.

Kelly Twigger: 3:32

Fast forward nine months or so and on May 5, 2023, almost two years after the original complaint was filed, the defendant served interrogatories and requests for production on the plaintiffs. Now, responses to that discovery were due on June 5th 2023, and the plaintiffs sought from the defendants and received a 15-day extension to respond, so until June 20th. On June 20th 2023, the plaintiffs served a single collective response consisting of seven pages of general objections, but nothing else. According to the court, the objections consisted of quote boilerplate and, in many instances, duplicative objections that are untethered to any specific request or interrogatory. Inexplicably, plaintiffs did not provide a specific or substantive response to a single interrogatory or request for production. Close quote On June 22nd, so two days later. The defendants insisted on proper responses by June 28th and advised the plaintiffs that they had waived all objections to the discovery by failing to provide specific responses and objections. Plaintiffs did not respond by June 28th and the defendants requested a meet and confer immediately On June 29th. The plaintiffs did not respond by June 28th and the defendants requested a meet and confer immediately. On June 29th the plaintiffs responded to the defendants request for a meet and confer that they were working on responses and would provide them on a rolling basis the week of July 3rd and they proposed a meet and confer for July 5th or 6th. The defendants responded to that request for a meet and confer within 90 minutes, but the plaintiffs never replied. On July 12th the plaintiffs still had not responded and the defendants then filed their motion to compel.

Kelly Twigger: 5:13

Now, on the motion the plaintiffs do not quote attempt to justify their failure to provide discovery. Close quote Instead, they argue that cost shifting on the motion is not warranted for two reasons First, because there are so many plaintiffs that need to provide discovery and second, that there is no prejudice to the defendants because there is no case scheduling order in place. Now, if you're a regular here on Case of the Week, or if you have read Federal Rule of Civil Procedure 34 that the Chancery Court rule mirrors, you know that there is nothing in that rule that limits the response times or the ability to assign costs based on whether there is prejudice to the other side. Now just to be clear here, the Chancery Court rule in Delaware is not a mirror image of Rule 34, but the language is basically the same and the interpretation by the courts has been basically the same. So keep that in mind as we move forward with this state court decision. We've got the Delaware Chancery Court that is essentially tracking the federal rules for purposes of what we need here Rule 26, rule 33, and Rule 34, as well as Rule 37.

Kelly Twigger: 6:17

So what is the court's analysis here on this set of facts? Well, the court first addressed the motion to compel and cost shifting on the motion cost, and the court found that plaintiffs failed to respond to the discovery despite the extension, and that the general objections did not meet plaintiffs' obligations to provide discovery responses. The court also rejected the plaintiffs' argument raised for the first time at the December 2023 hearing that it would soon be filing an amended complaint listing only two of the 26 plaintiffs and that those two plaintiffs belatedly have served their discovery responses, making the defendant's motion moot. The court called the plaintiff's argument frivolous, finding that all 26 plaintiffs were named as plaintiffs when the discovery was served and that they have failed to provide responses for more than 168 days. Essentially, the court says, hey, you can't tell us you might file a complaint, you haven't filed a complaint and, as of right now and for the last 168 days, your obligation has been to provide discovery responses for all 26 plaintiffs. The court granted the motion to compel and ordered plaintiffs to serve discovery within five days.

Kelly Twigger: 7:25

The court then turned to whether the plaintiffs had waived their objections to discovery, and the court begins here with a review of the requirements of Chancery Court Rules 33 and 34, which, as I mentioned, are basically the same as Federal Rules of Civil Procedure 33 and 34, which requires, since 2015, that all objections to discovery be stated with specificity. Citing to the rules, the court states that, quote Court of Chancery Rule 33B requires a responding party to restate and answer each interrogatory separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable. Close quote Under court of Chancery Rule 34B, the responding party must state, with respect to each item or category of documents requested, that inspection and related activities will be permitted as requested unless the request is objected to, in which event the grounds and reasons for objection shall be stated with specificity. Again, close quote. But the court does pause here on the scope of the waiver and the issue of whether or not the attorney-client privilege has been waived, which of course is one of the most important parts of waiver. Following a review of case law that such a waiver of attorney-client privilege is quote harsh and rare, the court notes that typically a party will assert a general objection on the grounds of privilege and then provide sufficient detail in a privilege log produced with the discovery responses.

Kelly Twigger: 9:08

The court here declined to declare a waiver of privilege but did order that all other objections to discovery are waived as a result of plaintiff's failure to provide timely objections and demonstrate good cause that would excuse their failure to do so. The court also found that under the language of Chancery Court, rule 37, which again mirrors Federal Rules, civil Procedure 37, that the court shall require plaintiffs to pay the motion costs here because their conduct was not substantially justified. The court rejected plaintiffs argument that fee shifting was not justified where there was no prejudice and notes that the issue here is not whether there is prejudice, but whether good cause exists for failure to produce. And the plaintiffs had not demonstrated good cause. All right, what are our takeaways here? Well, the facts of this case are kind of a no-brainer based on the language of the rules. So why did I choose this case? That's a valid question, and the reason is this it's a perfect example of the importance of doing discovery early on and of the potential implications of using general objections when those have been abolished by the federal rules.

Kelly Twigger: 10:12

Now, I've been involved in seeking discovery from individual plaintiffs, and it is time-consuming. You often have to work with them on evenings or weekends. They don't understand the process of what it involves or why they have to provide discovery. They don't understand technology and they don't want you in their personal data. None of that, however, relieves their obligations to provide discovery, and in this case, the best time to identify and collect discovery from those 26 plaintiffs here would have been when they were engaged to bring suit and the time the complaint was filed. That's the one time they're completely engaged. Instead, counsel here waited more than two years after the complaint was filed to start identifying discovery, and we know well that means that there are issues with email account passwords being lost, mobile devices being lost, stolen or traded in, among many other things that can happen with regard to personal ESI. It's next to impossible to navigate all of that for 26 plaintiffs in 30 days once discovery has been served. Now there are a lot of factors when you have multiple plaintiffs in a case, and I am not sidestepping any of those, but that doesn't change what your obligations are or the reality that if you're going to bring a complaint, you have to be prepared to provide the discovery from those plaintiffs under the same time restrictions as anybody else in litigation.

Kelly Twigger: 11:39

Now this decision is also a brutal reminder of the fact that the Federal Rules of Civil Procedure, in which the Chancery Court here follows, was amended in 2015 to require specific objections, and that failure to do so will constitute a waiver. Plaintiffs here escaped by the skin of their teeth when the court declined to order that privilege had been waived. In this case, waiving your objections to proportionality may not be such an issue, but it will be in others, so heed this cautionary tale and don't mess around with general objections. I'm still seeing them over and over again and I get counsel who say to me oh, it's fine, we know what we're doing. Do you Now make your objections specific to each request? To do that, you'll need to get your hands into the issues early on so you can make those specific objections. Citing those responses has meaningful ramifications under Rule 26G and has resulted in sanctions against counsel for failure to make reasonable efforts as required by the rules.

Kelly Twigger: 12:39

Now there are a long line of cases on general objections following the amendments to the rules in 2015. We have a specific issue tag in eDiscovery Assistant for you to find them. Read up on the case law. Know what your obligations are to provide specific objections and what that means. Don't allow waiver. It's a potential malpractice trap and not only that, but it can significantly impact your client's case going forward. All right, that's our case of the week.

Kelly Twigger: 13:06

For this week, thanks so much for joining me. We'll be back again next week with another decision from our eDiscovery Assistant database. As always, if you have suggestions for a case to be covered, please drop me a line. If you'd like to receive our newsletter, you can sign up at ediscoveryassistantcom backslash blog, which is the link Deja provided, and if you're interested in doing a free trial of our case law and resource database, you can sign up at ediscoveryassistantcom Thanks. Thanks for joining me on the Case of the Week podcast Tune in next episode as I discuss a new decision in eDiscovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of ESI. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things electronic discovery. I'm Kelly Twigger. See you next time.