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By Jennifer A. Hoffman
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“Vague, ambiguous, overly broad, unduly burdensome and/or irrelevant.” All lawyers are certainly familiar with this “laundry list” of common discovery objections.

However, the Federal Rules of Civil Procedure prohibit these types of standard, boilerplate objections and courts have stated that such objections serve no legitimate purpose.[1] Rather, objections must be stated with specificity. The failure to particularize the basis for an objection and explain why a request is overly broad or unduly burdensome can result in sanctions, including the waiver of any legitimate objections the party may have had.[2] Nevertheless, attorneys continue to include these types of objections in their discovery responses.

This is often evident in first party insurance coverage disputes, where insureds may, for example, request that defendant insurers produce copies of insurance policies issued during the previous five or 10 years and identify all previous claims or actions involving particular policy exclusions. Counsel for insurers typically object to these types of requests by reciting the “laundry list” rather than stating why such requests are vague, ambiguous, overly broad, unduly burdensome and irrelevant. In the face of such requests, what kind of objection will survive a motion to compel production and, in many cases, sanctions?

The few reported cases specifically addressing this type of discovery dispute in the insurance context demonstrate that insurers can prevail when they move beyond the boilerplate and are able to articulate the basis for their objection. In Nurse Notes Inc. v. Allstate Insurance Co., 2011 (E.D. Mich.), the insured served discovery requests seeking claim information for any lawsuits or counter-complaints filed by the insurer in the prior three years in various counties throughout Michigan. The insurer responded with the standard “laundry list” of objections, but also added that such information was equally available to the insured via a review of the public record. The insured argued that the information was relevant because of the allegations that the insurer’s actions were part of a business scheme to harass and intimidate insureds. The court held that it would allow the insurer to file a supplemental response along with an affidavit stating that the insurance company did not maintain files in a manner that would allow it to answer the interrogatory without numerous hours of work reviewing thousands of complaints filed against or by the insurer. The court recognized the undue burden that this would impose on the insurer and balanced that with the relevancy of the requested materials. In denying the insured’s motion to compel, the court relied heavily on the insurer’s affidavit explaining in detail why the request was unduly burdensome.

In U.S. v. Clean Harbors, 1995 (D. N.H.), the insured requested various documents inquiring into policy drafting history; insurer communications; various manuals, memoranda and guidelines; information on other policyholders’ backgrounds; the insurer’s knowledge of the risk; and reinsurance/reserve information. The insurer objected to the document requests on the basis that the requests were irrelevant and unlimited in date and scope. The court noted that each of the requests sought “all” documents for each of these categories of documents and therefore questioned whether the request was sufficiently limited to a certain time period. The court held that “there are no indications concerning the extent to which [the insurer] is obligated to conduct or end its research.” Id. at *4. The court also noted that attorneys have an obligation to tailor discovery requests to suit the particular issues of the litigation. Thus, the court acknowledged the potential expense of manpower and dollars and denied the insured’s motion to compel. However, the court granted the insured’s motion to compel interrogatories concerning the submission of the subject policy for approval by state regulators. The court held that the interrogatories related to the coverage or interpretation of the policy and that the request was sufficiently narrow in time and in scope. Thus, there was a “reasonable nexus” between the request and the ultimate issue presented. Id. at *3. Accordingly, the court granted that part of the insured’s motion to compel. The court did not impose sanctions and even encouraged counsel to “exercise reasonable restraint in discovery matters.” Id.*4.

Reasonableness — therein lies the key to successfully challenging a discovery request by specifically demonstrating why the request is vague, ambiguous, overly broad, unduly burdensome or irrelevant rather than simply relying on boilerplate. Instead of citing the “laundry list,” an insurer and its counsel must take the time to craft responses that specifically address the basis for the objection. Don’t state that a request is unduly burdensome; instead, explain how the request is unduly burdensome, e.g., because it asks for 10 years’ worth of claims records involving thousands of unrelated claims. Point out that the insured has asked for extensive insurance company records, but has not limited the request to a specific period of time. Also, pick and choose what requests warrant an objection based on an undue burden. If counsel objects to the majority of the requests on the basis that they are vague or unduly burdensome, the court may determine that counsel is evading a response and is being unreasonable. Thus, the more effort that is put into drafting a more factually detailed discovery response, the more likely the chances are of prevailing in a motion to compel, or avoiding such a motion (and potential sanctions) altogether.

When faced with a motion to compel, an insurer that provided a reasonable objection setting forth the basis for its position may not necessarily prevail, but the court may be more receptive to its arguments or more likely to allow it to supplement its response with additional information. And, since motions to compel have become standard protocol in first party insurance disputes, it is prudent to take the time to explain with specificity in the discovery responses why the requests are vague, ambiguous, overly broad, unduly burdensome or irrelevant rather than wait to explain the specific basis for the objection in opposition to a motion to compel. Although a boilerplate objection may be tempting when formulating a discovery response, it will not serve to protect a client’s legitimate interests if it cannot be supported. The old expression “the devil is in the details” certainly rings true when answering written discovery requests in a federal court action.

—By Jennifer A. Hoffman, Zelle LLP

Jennifer Hoffman is counsel in Zelle's New York office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Fed. R. Civ. P. 33(b)(4); See Weidenhamer v. Expedia, Inc., 2015 (W.D. Wa.); Manica v. Mayflower Textile Services Co., 253 F.R.D. 354, 358 (D. Md. 2008).

[2] See Mitchell v. National R.R. Passenger Corp., 208 F.R.D. 455, 458 at n.4 (D.D.C. 2002); Nagele v. Electronic Data System Corp., 193 F.R.D. 9