9th Circuit issues a discovery opinion

Burlington Northern & Santa Fe R.R. Co. v U.S. District Court is a rare published denial of a petition for a writ of mandamus on a discovery issue.  In denying the petition, the court held that while general boilerplate objections inserted in a document request response do not adequately preserve the privilege, failure to provide a privilege log with the FRCP 34 30-day period may or may not amount to a waiver, depending on the following factors:

"the relative specificity of the objection or assertion of privilege (where providing particulars typically contained in a privilege

log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. They should not be applied as a mechanistic determination of whether the information is provided in a particular format."

This little case could be very important in streamlining discovery, if the federal courts faithfully apply the above-noted test.  For example, in California, the Code of Civil Procedure contains a provision, which also requires very specific objections, yet, time and again, attorneys assert those boiler-plate objections and discovery judges / referees do not penalize them enough.

Comments

[TomFreeland]

You are absolutely correct about the willingness of magistrates and judges to let boilerplate objections slide.