In Episode 137, Kelly Twigger discusses how a party waived its objections to proposed discovery through its use of general or boilerplate objections in the Delaware Chancery Court in Bocock v. Innovate Corp., 2023 WL 8453525 (Del. Ch. 2023).
Introduction
Welcome to this week’s Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.
Each week on the Case of the Week I choose a recent decision in ediscovery and talk to you about the practical implications. This week’s decision raises the issue of general objections and the potential waiver implications following the amendment to the Federal Rules of Civil Procedure in 2015 that requires specific objections to an individual interrogatory or request for production.
If you haven’t yet had a chance to grab our 2023 eDiscovery Case Law Report that discusses the key trends and cases from last year, you can download that today.
All right, let’s dive into this week’s decision, which 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 Fioravanti, dated December 6, 2023. As always, we add the issues associated with each decision in our eDiscovery Assistant database. This week’s issues include cost recovery, attorney-client privilege, attorney work-product, waiver, sanctions, and general objections.
As we dive into the facts of this case, please note that this is an unpublished ruling, so you will need to check with your court rules as to whether or not this decision can be cited. We always note decisions that are unpublished in eDiscovery Assistant with a yellow banner at the top of the case and a note that you need to make a decision or determination as to whether or not you can cite those decisions to the court you’re in.
Facts
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 plaintiffs’ 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. 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 plaintiffs’ claims more than a year later on October 28, 2022. Fast forward nine months or so, and on May 5, 2023 — almost two years after the original complaint was filed — the defendants served interrogatories and requests for production on the plaintiffs. Responses to that discovery were due on June 5, 2023, and the plaintiffs sought from the defendants and received a 15-day extension to respond, so until June 20, 2023.
On June 20, 2023, the plaintiffs served a single collective response for all 26 plaintiffs consisting of seven pages of general objections, but nothing else. According to the Court, the objections consisted of “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.”
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 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. On the motion, the plaintiffs do not “attempt to justify their failure to provide discovery.” Instead, they argue that cost shifting on the motion is not warranted for two reasons: 1) because there are so many plaintiffs that need to provide discovery, and 2) that there is no prejudice to the defendants because there is no case scheduling order in place.
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. 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. 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.
Analysis
What is the Court’s analysis here on this set of facts?
The Court first addressed the motion to compel and cost shifting on the motion costs. 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 defendants’ motion moot.
The Court called the plaintiffs’ 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.
The Court then turns to whether the plaintiffs had waived their objections to discovery. 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 “Court of Chancery Rule 33(b) 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” and “Under Court of Chancery Rule 34(b), 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(s) shall be stated with specificity.”
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, “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. Noting here that it’s “a close call”, the Court declined to declare a waiver of privilege, but did order that all other objections to discovery are waived as a result of plaintiffs’ 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 the intent of Federal Rules of 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.
Takeaways
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.
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 would have been when they were engaged to bring suit at 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. 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.
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.
This decision is also a brutal reminder of the fact that the Federal Rules of Civil Procedure, 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 escape 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 keep 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?
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. Signing those responses has meaningful ramifications under Rule 26(g), and has resulted in sanctions against counsel for failure to make reasonable efforts as required by the rules. 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. Not only that, but it can significantly impact your client’s case going forward.
Conclusion
That’s our Case of the Week 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 on the Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
