At the beginning, the Federal Rules of Civil Procedure created a most liberal regime for the discovery of facts and winnowing of issues, awarding parties such essential tools as interrogatories, as set forth in Rule 33, and requests for production, governed by Rule 34. In the last two decades, in response to the seeming failure of this construct to achieve an efficient and just determination of every action, courts have begun to police the use of boilerplate objections to requests for production. Recognizing no distinction between types of boilerplate and acknowledging neither the textual differences within the rules nor the asymmetries too often implicated, judge after judge has found waiver to be the proper penalty for boilerplate's utilization. Unfortunately, in so doing, an apparent juridical majority has run afoul of those well-established principles of construction from which no court may deviate. As a result, the existing jurisprudence is quite a muddle, a perpetual and indeterminate clash of prose and precept, rife with both laudatory notions and cloaked defects. This article not only traces the history and details the provisions involved in this hushed yet weighty controversy, including Rules 1, 26, 33, 34, and 37, but also delineates precisely where and how so many have erred. Having pinpointed their mistakes, this article then goes farther. In its final section, it tentatively proposes emendations to certain rules that would permit waiver's finding upon boilerplate's use in responses to requests for production. A historical account, a snapshot of every relevant rule, an explanation of those few controlling principles of construction, and a theory of law and policy--all these things appear within, a guide to more than just Rule 34.
Northern Illinois University Law Review
"Policing Boilerplate: Reckoning and Reforming Rule 34’s Popular—yet Problematic—Construction,"
Northern Illinois University Law Review: Vol. 37:
2, Article 3.
Available at: https://huskiecommons.lib.niu.edu/niulr/vol37/iss2/3
Amir Shachmurove, Policing Boilerplate: Reckoning and Reforming Rule 34’s Popular—yet Problematic—Construction, 37 N. Ill. U. L. Rev. 203 (2017).