If you are a litigator reading this article, you have inevitably encountered language similar to the following in a response to written discovery:
[Party] objects to this request on the grounds that it is vague, ambiguous, overly broad, unduly burdensome, not reasonably calculated to lead to discovery of relevant information, seeks information protected by the attorney-client privilege, and seeks confidential information. Subject to and without waiving the foregoing, please see documents produced as Bates X to Y.Often, preceding such a response is a litany of boilerplate general objections that are stated to be incorporated into each individual response. Although responding to written discovery in this manner is commonplace, courts’ patience for discovery disputes regarding such responses appear to be increasingly waning. The outcome of such disputes can vary from a court granting your opponent’s motion to compel, to the court finding by responding to a request with an objection and “subject to” response, like the example above, you have waived your objection – especially in federal court in the Middle District of Florida.
In Martin v. Zale Delaware, Inc., 2008 WL 5255555 (M.D. Fla. 2008), the plaintiff filed a motion to compel regarding discovery responses almost identical to the example language above, arguing that she was “confused as to which documents Defendant has withheld (if any) and why.” The court stated, “Parties are not permitted to assert these types of conclusory, boilerplate objections that fail to explain the precise grounds that make the request objectionable,” and “an objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why.”
Most importantly, however, the court stated: “Additionally, it is common practice for a party to assert boilerplate objections and then state that ‘notwithstanding the above,’ the party will respond to the discovery request, ‘subject to or without waving the objection.’ Such an objection and answer preserves nothing and wastes the time and resources of the parties and the court.”
This rationale is increasingly being adopted by federal courts in Florida and beyond. See Chemoil Corp. v. MSA V, 2013 WL 944949 (M.D. Fla. Mar. 12, 2013) (explaining that “[e]ven though the practice has become common here and elsewhere, courts have found that whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands”) (citing Pepperwood of Naples Condo. Ass’n v. Nationwide Mut. Fire Ins. Co., 2011 WL 4382104 (M.D. Fla. Sep. 20, 2011); Consumer Elec. Ass’n v. Compras & Buys Magazine, Inc., 2008 WL 4327253 (S.D. Fla. Sep. 18, 2008).
Therefore, whether you agree with the courts’ rationale regarding waiving objections, use caution when using form objections and answers in responding to written discovery. In this day and age of overcrowded court dockets, courts may become increasingly unsympathetic to counsel who raise these types of objections. To avoid this situation, provide a detailed basis for any objection – and remember, object and answer “subject to your objection” at your own risk.
