Increasing Scrutiny of Boilerplate Objections


The Eastern District Court of Texas joins a growing number of courts criticizing the use of boilerplate language in objections.  Specifically, the commonly used “subject to” objections leave uncertain as to what, if any, information has been withheld.[1]  When responding to discovery, it is common practice to provide boilerplate objections to each request and include “subject to” language in the objection.  This language is “manifestly confusing (at best) and misleading (at worst) and has no basis at all in the Federal Rules of Civil Procedure.”[2]  The use of “subject to” objections has created an ambiguity which is prohibited under Rule 34 and may result in courts overruling objections.[3]

Rule 34 permits a party to either “state that inspection and related activities will be permitted as required” or to “state with specificity the grounds for objecting to the request.”[4]  If a party decides to object to part of a request, they “must specify the part and permit inspection of the rest.”[5]  When a party answers “subject to the foregoing,” they fail to be specific enough as to the completeness of the answer or the availability of the documents for inspection.  The court may then rule (1) the party has failed to specify the scope of its answer in relation to the request, (2) the party has waived its objection and (3) it must produce the documents at issue.[6]

Eastern District Court of Texas Ruling

In Realpage, Inc. v. Enterprise Risk Control, LLC, Plaintiffs asked the court to overrule Defendants’ objections to Requests for Production and compel Defendants to turn over certain discovery documents.  Most of the Defendants’ responses were given “subject to objection,” and the court ruled the Defendants’ use of this type of objection was improper.  This type of objection is not supported by the Federal Rules of Civil Procedure and does not promote a just, speedy and inexpensive result.[7]  Further, the court held Defendants waived some of their objections and were ordered to fully supplement their responses to certain requests, consistent with the proper manner.[8]

Realpage further criticized the use of boilerplate objections which result in confusion as to whether information was withheld and, if it was, the specific reason why.  A party may not resist discovery requests based on boilerplate objections, but instead must show why each request is specifically overbroad or lacks relevancy.[9]  The Defendants in Realpage argued their objections were not boilerplate objections because they could point out slight variations in the language used in each objection.  The Court disagreed and stated a boilerplate objection is a “standardized text” or “ready-made or all-purpose language.”[10]  Ultimately, the court found the Defendants’ objections to be clearly boilerplate because they used the same objections on eighteen of their twenty-five (18/25) objections to requests for production, which made it “standardized” or “ready-made.”

Future Implications

The Eastern District Court of Texas is one of many courts to find “subject to” language is ambiguous and confusing to the discovery process and the use of such language may render objection waived.  In Realpage, the court cited to the Northern District Court of Texas, the Southern District Court of Florida and the District Court of Kansas in support of discouraging “subject to” objections.[11]  The judiciary is finding “subject to” objections do not adhere with the Federal Rules of Civil Procedure, and the use of these objections have serious consequences which may result in waiver of such privileged objections.

The practical implication of this new trend is lawyers will be forced to spend more time reviewing their written discovery responses and the basis for their objections.  Objections should be specifically tailored and must identify the exact reason an objection is being made.  Instead of using boilerplate objections, parties should state the specific parts of the request which are being objected.

The courts’ decisions to rule against the “subject to” or “without waiving said” objection was promulgated to remedy the lack of clarity and efficiency boilerplate objections create for the discovery process.  To promote efficient litigation and prevent parties from arguing over what has or has not been produced, the courts require parties to object clearly and specifically.  As boilerplate and “subject to” objections continue to fall under the courts’ scrutiny, attorneys should be cautious of the use of these objections in their written discovery responses may result in their objections being overruled.

[1] Realpage, Inc. v. Enterprise Risk Control, LLC, No. 4:16-cv-00737, 2017 WL 1165688 (E.D. Tex. March 27, 2017).

[2] Keycorp v. Holland, No. 3:16-cv-1948-D, 2016 WL 6277813, at *11 (N.D. Tex. Oct. 26, 2016) (quoting Carr v. State Farm Mut. Auto Ins., 312 F.R.D. 459, 470 (N.D. Tex. 2015)).

[3] Fed. R. Civ. P. 34(b)(2)(B).

[4] Fed. R. Civ. P. 34(b)(2)(B).

[5] Id. at 34(b)(2)(C) (emphasis added).

[6] Realpage, Inc., 2017 WL 1165688 at *3.

[7] Realpage, Inc., 2017 WL 1165688 at *3.

[8] Id.

[9] Id.

[10] Id.

[11] See Keycorp v. Holland, 2016 WL 6277813 at *11; Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., No. 08-21085-CIV, 2008 WL 4327253 (S.D. Fla. Sept. 2008); Sprint Commc’ns, Co. v. Comcast Cable Commc’ns, LLC, No. 11-2684-JWL, 2014 WL 545544 (D. Kan. Feb. 11, 2014).