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 Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy. Join us next episode as we break down another important case shaping the future of ediscovery.

Episode Transcript

Kelly Twigger (00:13):
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.

(00:34):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and eDiscovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to

(00:55):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in e-discovery
case law and how it shapes bothyour litigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
Subscribe or follow now tostart embracing the episode of

(01:32):
the Case of the Week seriesbrought to you by eDiscovery
Assistant.
This week's decision raises theissue of general objections and
the potential waiverimplications following the
amendment to the federal rulesto civil procedure in 2015.
That requires specificobjections to an individual
interrogatory or request forproduction.
All right, let's dive into thisweek's decision.

(01:54):
It comes to us from Bocock vInnovate Corp.
This is a state court decisionfrom the Delaware Chancery Court
, and this decision comes to usfrom Vice Chancellor Paul
Fiavorante, dated December 6,2023.
Now, as always, we add theissues associated with each
decision in our e-discoverysystem database, and this week's

(02:16):
issues include cost recovery,attorney-client privilege,
attorney work, product waiver,sanctions and general objections
.
Now, as we dive into the factsof this case, please note that
this is an unpublished ruling,so you will need to check with
your court rules as to whetheror not this decision can be
cited.
We always note decisions thatare unpublished in e-discovery

(02:38):
assistant with a yellow bannerat the top of the case and a
note that you need to make adecision of determination as to
whether or not you can citethose decisions to the court.
You're in All right.
We are before the court on amotion to compel discovery
responses and seeking costs forthe motion, in which the
defendants are asking the courtto find that plaintiffs have
waived all of their objectionsbased on plaintiff's failure to

(03:00):
respond to defendants' discoveryrequests.
Let's start with, as we oftendo on Case of the Week, the
timeline that's relevant to themotion, and pay attention
especially to the amount of timethat lapses between the
complaint and when theplaintiffs are actually arguing
their motion before the court,as well as what they have
provided in that time frame.
On June 23, 2021, 26 plaintiffsfiled this complaint.

(03:26):
The court dismissed themajority of the plaintiff's
claims more than a year later,on October 28, 2022.
Fast forward nine months or soand on May 5, 2023, almost two
years after the originalcomplaint was filed, the
defendant served interrogatoriesand requests for production on
the plaintiffs.
Now, responses to thatdiscovery were due on June 5th

(03:47):
2023, and the plaintiffs soughtfrom the defendants and received
a 15-day extension to respond,so until June 20th.
On June 20th 2023, theplaintiffs served a single
collective response consistingof seven pages of general
objections, but nothing else.
According to the court, theobjections consisted of quote

(04:10):
boilerplate and, in manyinstances, duplicative
objections that are untetheredto any specific request or
interrogatory.
Inexplicably, plaintiffs didnot provide a specific or
substantive response to a singleinterrogatory or request for
production.
Close quote On June 22nd, sotwo days later.
The defendants insisted onproper responses by June 28th

(04:33):
and advised the plaintiffs thatthey had waived all objections
to the discovery by failing toprovide specific responses and
objections.
Plaintiffs did not respond byJune 28th and the defendants
requested a meet and conferimmediately On June 29th.
The plaintiffs did not respondby June 28th and the defendants
requested a meet and conferimmediately.
On June 29th the plaintiffsresponded to the defendants
request for a meet and conferthat they were working on
responses and would provide themon a rolling basis the week of

(04:55):
July 3rd and they proposed ameet and confer for July 5th or
6th.
The defendants responded tothat request for a meet and
confer within 90 minutes, butthe plaintiffs never replied.
On July 12th the plaintiffsstill had not responded and the
defendants then filed theirmotion to compel.
Now, on the motion theplaintiffs do not quote attempt

(05:17):
to justify their failure toprovide discovery.
Close quote Instead, they arguethat cost shifting on the
motion is not warranted for tworeasons First, because there are
so many plaintiffs that need toprovide discovery and second,
that there is no prejudice tothe defendants because there is
no case scheduling order inplace.
Now, if you're a regular hereon Case of the Week, or if you

(05:38):
have read Federal Rule of CivilProcedure 34 that the Chancery
Court rule mirrors, you knowthat there is nothing in that
rule that limits the responsetimes or the ability to assign
costs based on whether there isprejudice to the other side.
Now just to be clear here, theChancery Court rule in Delaware
is not a mirror image of Rule 34, but the language is basically

(06:00):
the same and the interpretationby the courts has been basically
the same.
So keep that in mind as we moveforward with this state court
decision.
We've got the Delaware ChanceryCourt that is essentially
tracking the federal rules forpurposes of what we need here
Rule 26, rule 33, and Rule 34,as well as Rule 37.
So what is the court's analysishere on this set of facts?
Well, the court first addressedthe motion to compel and cost

(06:23):
shifting on the motion cost, andthe court found that plaintiffs
failed to respond to thediscovery despite the extension,
and that the general objectionsdid not meet plaintiffs'
obligations to provide discoveryresponses.
The court also rejected theplaintiffs' argument raised for
the first time at the December2023 hearing that it would soon
be filing an amended complaintlisting only two of the 26

(06:45):
plaintiffs and that those twoplaintiffs belatedly have served
their discovery responses,making the defendant's motion
moot.
The court called theplaintiff's argument frivolous,
finding that all 26 plaintiffswere named as plaintiffs when
the discovery was served andthat they have failed to provide
responses for more than 168days.
Essentially, the court says,hey, you can't tell us you might

(07:08):
file a complaint, you haven'tfiled a complaint and, as of
right now and for the last 168days, your obligation has been
to provide discovery responsesfor all 26 plaintiffs.
The court granted the motion tocompel and ordered plaintiffs
to serve discovery within fivedays.
The court then turned to whetherthe plaintiffs had waived their
objections to discovery, andthe court begins here with a

(07:31):
review of the requirements ofChancery Court Rules 33 and 34,
which, as I mentioned, arebasically the same as Federal
Rules of Civil Procedure 33 and34, which requires, since 2015,
that all objections to discoverybe stated with specificity.
Citing to the rules, the courtstates that, quote Court of
Chancery Rule 33B requires aresponding party to restate and

(07:54):
answer each interrogatoryseparately and fully in writing
under oath, unless it isobjected to, in which event the
objecting party shall state thereasons for the objection and
shall answer to the extent theinterrogatory is not
objectionable.
Close quote Under court ofChancery Rule 34B, the
responding party must state,with respect to each item or

(08:18):
category of documents requested,that inspection and related
activities will be permitted asrequested unless the request is
objected to, in which event thegrounds and reasons for
objection shall be stated withspecificity.
Again, close quote.
But the court does pause hereon the scope of the waiver and
the issue of whether or not theattorney-client privilege has

(08:39):
been waived, which of course isone of the most important parts
of waiver.
Following a review of case lawthat such a waiver of
attorney-client privilege isquote harsh and rare, the court
notes that typically a partywill assert a general objection
on the grounds of privilege andthen provide sufficient detail
in a privilege log produced withthe discovery responses.

(09:08):
The court here declined todeclare a waiver of privilege
but did order that all otherobjections to discovery are
waived as a result ofplaintiff's failure to provide
timely objections anddemonstrate good cause that
would excuse their failure to doso.
The court also found that underthe language of Chancery Court,
rule 37, which again mirrorsFederal Rules, civil Procedure
37, that the court shall requireplaintiffs to pay the motion

(09:28):
costs here because their conductwas not substantially justified
.
The court rejected plaintiffsargument that fee shifting was
not justified where there was noprejudice and notes that the
issue here is not whether thereis prejudice, but whether good
cause exists for failure toproduce.
And the plaintiffs had notdemonstrated good cause.
All right, what are ourtakeaways here?

(09:50):
Well, the facts of this caseare kind of a no-brainer based
on the language of the rules.
So why did I choose this case?
That's a valid question, andthe reason is this it's a
perfect example of theimportance of doing discovery
early on and of the potentialimplications of using general
objections when those have beenabolished by the federal rules.

(10:12):
Now, I've been involved inseeking discovery from
individual plaintiffs, and it istime-consuming.
You often have to work withthem on evenings or weekends.
They don't understand theprocess of what it involves or
why they have to providediscovery.
They don't understandtechnology and they don't want
you in their personal data.
None of that, however, relievestheir obligations to provide

(10:35):
discovery, and in this case, thebest time to identify and
collect discovery from those 26plaintiffs here would have been
when they were engaged to bringsuit and the time the complaint
was filed.
That's the one time they'recompletely engaged.
Instead, counsel here waitedmore than two years after the
complaint was filed to startidentifying discovery, and we

(10:57):
know well that means that thereare issues with email account
passwords being lost, mobiledevices being lost, stolen or
traded in, among many otherthings that can happen with
regard to personal ESI.
It's next to impossible tonavigate all of that for 26
plaintiffs in 30 days oncediscovery has been served.

(11:17):
Now there are a lot of factorswhen you have multiple
plaintiffs in a case, and I amnot sidestepping any of those,
but that doesn't change whatyour obligations are or the
reality that if you're going tobring a complaint, you have to
be prepared to provide thediscovery from those plaintiffs
under the same time restrictionsas anybody else in litigation.

(11:39):
Now this decision is also abrutal reminder of the fact that
the Federal Rules of CivilProcedure, in which the Chancery
Court here follows, was amendedin 2015 to require specific
objections, and that failure todo so will constitute a waiver.
Plaintiffs here escaped by theskin of their teeth when the
court declined to order thatprivilege had been waived.
In this case, waiving yourobjections to proportionality

(12:02):
may not be such an issue, but itwill be in others, so heed this
cautionary tale and don't messaround with general objections.
I'm still seeing them over andover again and I get counsel who
say to me oh, it's fine, weknow what we're doing.
Do you Now make your objectionsspecific to each request?
To do that, you'll need to getyour hands into the issues early

(12:26):
on so you can make thosespecific objections.
Citing those responses hasmeaningful ramifications under
Rule 26G and has resulted insanctions against counsel for
failure to make reasonableefforts as required by the rules
.
Now there are a long line ofcases on general objections
following the amendments to therules in 2015.

(12:46):
We have a specific issue tag ineDiscovery Assistant for you to
find them.
Read up on the case law.
Know what your obligations areto provide specific objections
and what that means.
Don't allow waiver.
It's a potential malpracticetrap and not only that, but it
can significantly impact yourclient's case going forward.
All right, that's our case ofthe week.

(13:06):
For this week, thanks so muchfor joining me.
We'll be back again next weekwith another decision from our
eDiscovery Assistant database.
As always, if you havesuggestions for a case to be
covered, please drop me a line.
If you'd like to receive ournewsletter, you can sign up at
ediscoveryassistantcom backslashblog, which is the link Deja
provided, and if you'reinterested in doing a free trial
of our case law and resourcedatabase, you can sign up at

(13:28):
ediscoveryassistantcom Thanks.
Thanks for joining me on theCase of the Week podcast Tune in
next episode as I discuss a newdecision in eDiscovery case law
and identify the issues youneed to be paying attention to
and how they can help you dobetter discovery for your
clients and leverage the powerof ESI.
Be sure to subscribe and leavea review to help others discover

(13:49):
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.