SECOND CHANCE: Court Bails Out Defendant That Asserted Boilerplate Objections–Gives it a Second Chance to Assert Specific Objections

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Well you don’t see this everyday.

As I am often heard to discuss, boilerplate objections are not permitted in federal court. And class action defense lawyers that rely on such objections in responding to class discovery demands risk crushing repercussions for their clients.

Not good.

Despite the fact that boilerplate objections are deemed waived, a federal court in Texas gave a TCPA defendant a second chance to do things the right way rather than compel production of wildly irrelevant material. And that’s just amazing.

In Hunsinger v. Alpha Cash Buyers, LLC, Civil Action No. 3:21-CV-1598-D, 2022 U.S. Dist. LEXIS 69728 (N.D. Tex. April 15, 2022) the Plaintiff moved to compel responses to an interrogatory requiring Defendant to “[l]ist all contracts you have sent out or have executed, even if you did not close on them.” In a related RFP he also demanded that the Defendant produce all such contracts.

Now rather obviously not every contract the defendant ever “sent out”–whatever that means–are pertinent to a TCPA case. And the production of all such contracts with any client ever is likely a fairly burdensome and intrusive exercise. But the Defendant did not assert proper objections to these demands:

Alpha Cash has not met its burden to specifically object and show that the requested discovery does not fall within Rule 26(b)(1)’s scope. This is so because Alpha Cash’s only objections are improper boilerplate objections that are unsustainable.

So very bad.

For non-lawyers, “unsustainable” means “these objections suck and I’m overruling them.” And that usually results in a kneejerk order compelling production–I mean, if the Defendant lacks valid objections then the Plaintiff is entitled to discovery. Sort of the way it works.

But not in Hunsinger.

Rather than compel the Defendant to respond to the interrogatory the Court extended a remarkable gift: a second chance.

Because Hunsinger’s discovery requests, on their face, appear to substantially exceed the scope allowed by Rule 26(b)(1), the court declines to grant his motion to compel; instead, the court will order Alpha Cash to file more specific objections within 14 days of the date this memorandum opinion and order is filed. It will deny Hunsinger’s motion to compel without prejudice to his moving for this relief if he has grounds to do so after Alpha Cash files the required objections.

I have literally never seen that before. A Court giving a party more time than the FRCP permit to take a second crack at objections that should have been asserted in the first place.

I hope this defendant knows how lucky it just got. Usually when a party’s counsel blows it and fails to assert proper objections that’s it.

The take away here is clear–unless you’re hoping for a miracle, don’t waive your objections by asserting boilerplate.

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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