A US case brings us some RTFR (Read the F* Rules), a difference of emphasis between US rules and those of England and Wales, an opportunity to ask what “boilerplate” means, and a word to avoid if possible when speaking.
In a case called Fischer v Forrest, US Magistrate Judge Andrew Peck warned parties, in both specific and in general terms, about compliance with the Federal Rules of Civil Procedure as amended from 1 December 2015.
His particular points relate to responses to discovery requests, of which he says that:
They must state grounds for objection with specificity;
An objection must state whether any responsive materials are being withheld on the basis of that objection; and
Parties must specify the time for production and, if a rolling production, when production will begin when it will be concluded.
His more general point is that rules, including “new” rules, are there to be obeyed; that compliance involves more than an airy wave towards the spirit of the rules; that boilerplate text (for example that used for raising objections) must be updated to reflect the recent rule changes; and, not least, that failure to comply with the rules has consequences.
In this case, the consequence was this:
From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).
The case and its implications are described in detail, along with the relevant rule, in Ralph Losey’s post here whence I take the quotations and summaries above.
There is a small but telling difference between the US rules on this point and the equivalent in England and Wales. In the US the burden lies on the producing party to show why documents should not be produced; in England and Wales, a party who seeks more disclosure than has been given must make an application for specific disclosure and the burden is on the applicant to show why the disclosure is necessary see – see Paragraph 5.1 et seq of the often-overlooked Practice Direction 31A as to specific disclosure and Para 6.1 which reads:
A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court (see rule 31.19(5)).
This may be a distinction without a difference in practical terms, but it is interesting to see the way the two sets of rules approach the problem from opposite ends.
Some ancillary points arise.
One is my slogan RTFR, where the first R is “Read” the last R is “Rules” and the F can be anything appropriate to your own manner of expressing things. Judge Peck has been heard to observe that “because Chris Dale is not American, the F does not stand for “Federal”.
The main point is this: there is plenty enough to get wrong in discovery / disclosure when it is managed with the utmost good faith and competence and with the best will in the world; screwing up on rules tips the scales against you.
The second point of interest, to me at least, is the derivation of the word “boilerplate”. You often hear it used in US discovery (less so in England and Wales) to describe the often lengthy, dense and impenetrable wording used by lawyers to maximise the burden on opponents, minimise their own responsibilities and, not least, to satisfy their professional indemnity insurers that they are adequately covering their backs.
Where, though, does the expression “boilerplate” come from? According to Wikipedia, boilerplate was originally exactly that – sheet steel used to make water boilers. Boiler manufacturers would buy the pre-prepared steel and incorporate it into their own products. In due course, the expression transferred to the printing of advertisements or columns syndicated for publication in multiple newspapers. The text, pictures etc were pressed or stamped in steel and distributed in a form which could be incorporated into the pages of newspapers. It was both a cost-saving device and one which ensured that the end-product was uniform wherever it was used. In due course, the expression changed ships again, coming to refer to the yards of identical text used by lawyers as described above.
Those lengthy, and generally meaningless, exclusion notices at the bottom of lawyers’ emails are a form of boilerplate, automatically added by the system to make sure the standard wording goes on every email.
Lastly, a word of caution about that word specificity. Avoid using it in public if you can. Trip over it once and you will never get it right again.