Policing Boilerplate: Reckoning and Reforming Rule 34’s Popular — Yet Problematic — Construction

Abstract

At the beginning, the Federal Rules of Civil Procedure created a most liberal regime for the discovery of facts, awarding parties such essential tools as interrogatories, as set forth in Rule 33, and requests for production, governed by Rule 34. In recent decades, in response to the seeming failure of this construct to achieve an efficient and just determination of every action, courts have begun to police the use of boilerplate objections to requests for production. Recognizing no distinction between absolute and conditional boilerplate and acknowledging neither the textual differences within the rules nor the asymmetries implicated by such a rigid response, judge after judge has found waiver to follow such boilerplate’s utilization. In so doing, as this article shows, an apparent juridical majority has run afoul of those well-established principles of construction from which no practicing reader — no judge and no lawyer — may deviate pursuant to today’s interpretive schematic. This article not only traces the history and details the provisions involved in this simmering debate, including Rules 1, 26, 33, 34, and 37, but also delineates precisely where and how this majority has erred. Having pinpointed the mistake, this article goes farther. In its final section, it tentatively proposes emendations to the relevant rules that would permit waiver’s finding upon boilerplate’s use in responses to requests for production.

An historical account, a snapshot of every discovery rule, an explanation of every pendent principle of construction, and a theory of law and policy — all these things appear therein.

Keywords: Federal Rules of Civil Procedure, Rule 33, Rule 34, Rule 26, Rule 1, requests for production, boilerplate, inherent powers, conditional, subject to, waiver, sanctions

JEL Classification: K10, K19, K29, K39, K40, K41, K42, K49