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

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.



Leave a Reply