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Answering discovery you first object to

A pet peeve of mine is attorneys who begin discovery responses with a list of boilerplate objections. Recently I received interrogatory answers from two separate attorneys who I actually respect with such lists. One response began:

This response is submitted by Plaintiff subject to and without in any way waiving or intending to waive, but on the contrary intending to reserve and reserving:

A. All questions as to competency, relevancy, materiality, privilege and admissibility as evidence for any purpose of any of the answers given, or the subject matter thereof in any subsequent proceeding in, or the trial of this action or any other action or proceeding;
B. The right to object to other discovery procedures involving or relating to the subject matters of the Interrogatories herein responded to;
C. The right at any time to amend, revise, correct, add to or clarify any of the responses set forth herein.

Without waiving these objections, Plaintiff hereby responds to Defendant’s Interrogatories as follows:

The other began:

GENERAL OBJECTIONS AND RESERVATION OF RIGHTS

1. Defendant objects to each of the interrogatories to the extent they call for responses subject to the attorney-client, work product, or other applicable privilege or immunity, or otherwise constitute materials prepared for or in anticipation of litigation.
2. Defendant objects to each of the interrogatories to the extent they are vague, ambiguous, overly broad, unduly burdensome, and/or seek information or documents that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.
3. Defendant objects to each of the interrogatories to the extent they seek to impose discovery obligations beyond what is required under the South Carolina Rules of Civil Procedure and/or the South Carolina Rules of Family Court.
4. Neither the fact that an objection is interposed to a particular interrogatory, nor the fact that an objection is not made, necessarily means that responsive information exists.
5. Defendant incorporates the foregoing general objections into each and every response and/or objection to the interrogatories, and into each and every amendment, supplement, or modification to these responses hereinafter provided to Plaintiff. Defendant does not intend to waive any general objection in response to any specific interrogatory or request propounded.

This attorney actually began a response to the standard interrogatory, “Set forth a list of photographs, plats, sketches or other prepared documents in possession of the party that relate to the claim or defense in the case,” with, “Defendant objects to this interrogatory to the extent that it calls for a response subject to the attorney-client, work product, or other applicable privilege or immunity, or that otherwise constitutes materials prepared for or in anticipation of litigation.”

I have no idea what these boilerplate objections are designed to accomplish. It’s not as though one can answer discovery but then make one’s response later disappear by having incanted magic language beforehand. If these attorneys gave their boilerplate any thought, I hope they’d determine these objections are violations of the rules of professional conduct. Rule 26(g), SCRCP, which addresses objecting to discovery, reads:

Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification in accordance with Rule 11.

The specific language in Rule 11, SCRCP, being referenced is:

The written or electronic signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

If there is good grounds to support the objections these attorneys are making to discovery, they shouldn’t answer the discovery–or should answer part, and object to the remainder. I see no way one can object to discovery, answer that same discovery, and claim “there is good ground to support” the objection. This is particularly true for standard interrogatories, which are explicitly authorized by the South Carolina Supreme Court.

I don’t mean to pick on any particular attorney, as these boilerplate objections appear in a sizable minority of opposing counsels’ discovery responses. However they make me question such counsels’ attention to the practice of law. In twenty-five years of practice, I have yet to hear of any case in which boilerplate objections somehow precluded the opposing party from using the discovery response at trial. If these objections are being raised wittingly–highly doubtful–that attorney is simultaneously unethical and ineffectual. If these objections are being made reflexively–because, when this attorney was a mere strapling, some more experienced attorney shared his go-by–it shows that attorney has yet to put thought into how to properly begin a discovery response.

One doesn’t need a page of boilerplate to respond to discovery. Once simply needs one sentence: [Plaintiff/Defendant], by and through the undersigned counsel [answers/responds to] [Plaintiff’s/Defendant’s] [requests for admissions/requests for production/standard interrogatories/supplemental interrogatories] as follows:

Specific discovery objections protect one’s client from responding to objectionable discovery. Boilerplate objections simply make one look thoughtless.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Thomas F. McDow

    Greg: You restated the rant I hear from my wife Lucy every time she receives discovery responses from expensive lawyers who never had an original thought and who include such crap in their responses without a conscious thought.

    My belief, and sometimes practice, is that a lawyer receiving responses with an objection should immediately move to compel responses. Even if the discovery appears answered, once there is an objection, material and information may be omitted.

    I do not understand why you include this boilerplate in your requests and responses: [Plaintiff/Defendant], by and through the undersigned counsel [answers/responds to] [Plaintiff’s/Defendant’s] [requests for admissions/requests for production/standard interrogatories/supplemental interrogatories] as follows: I only include my requests or responses. See my South Carolina Divorce Forms at hotdocsmarket.com.
    Keep up the good work.

    Thomas F. McDow

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