In Bocock v. Innovate Corp. C.A. No. 2021-0224-PAF (Del. Ch. Dec. 6, 2023), Delaware Vice Chancellor Paul A. Fioravanti Jr. granted the defendants’ motion to compel discovery, ruling that the plaintiffs had waived all objections to the discovery requests, except for those based on attorney-client privilege and work product doctrine, due to their failure to provide specific and timely responses. Vice Chancellor Fioravanti criticized the plaintiffs for issuing “General Objections” that were boilerplate, duplicative, and not tied to any specific interrogatory or request for production, thereby failing to comply with the Court of Chancery Rules.

Case Discussion

In this case, twenty-six plaintiffs filed an amended complaint in this action in June 2021, and the majority of the claims were dismissed in October 2022. The defendants served interrogatories and requests for production on the plaintiffs on May 5, 2023. The plaintiffs requested and were granted an extension to respond, which expired on June 20, 2023. However, they only provided general objections without any specific responses or objections to the individual discovery requests.

On June 22, 2023, the Defendants insisted that Plaintiffs provide proper responses by June 28. The Defendants also noted that by failing to provide specific responses and objections, Plaintiffs had waived all objections to Discovery. When Plaintiffs did not respond to the Defendants’ email or provide proper responses to the Discovery by June 28, the Defendants requested a meet and confer. On June 29, Plaintiffs responded that they were “working on the responses” and stated that they would “serve the plaintiffs’ respective discovery responses on a rolling basis – most likely starting next week[,]” i.e., the week of July 3. Plaintiffs also proposed a meet and confer for July 5 or 6. Defendants replied 90 minutes later, indicating their availability to meet and confer on July 5 and 6, but plaintiffs did not respond.

The defendants filed a motion to compel discovery on July 12, 2023, after the plaintiffs failed to provide adequate responses. The defendants also sought an order for the plaintiffs to pay their attorney’s fees and expenses and argued that the plaintiffs had waived all objections to discovery.

Vice Chancellor’s Ruling

In considering the parties’ arguments, Vice Chancellor Fioravanti stated: “When the end of that extension came to pass on June 20, 2023, Plaintiffs collectively served a single response consisting of seven pages of ‘General Objections’ but nothing else. The General Objections consist of boilerplate and, in many instances, duplicative objections that are untethered to any specific request or interrogatory. Inexplicably, Plaintiffs did not provide a specific or substantive response to a single interrogatory or request for production.”

He also added: “Plaintiffs do not defend their General Objections as being compliant with the Court of Chancery Rules. Instead, they argue that waiver is too strong a sanction for this circumstance. Plaintiffs maintain that ‘[w]aiver of objections is usually reserved for a party’s persistent refusal to provide substantive discovery responses,’ and they urge the court to permit the Plaintiffs to supplement their discovery responses.”

Regarding the plaintiffs’ citation of Twitter v. Musk, Vice Chancellor Fioravanti stated: “Plaintiffs point to one of Chancellor McCormick’s discovery decisions in the Twitter litigation where the court declined to find a waiver of objections and permitted the defendants to supplement certain of their discovery responses…In doing so, the Chancellor credited the defendants with having conceded that their initial responses were ‘overly aggressive’ and noted that defendants ‘appear[ed] to have walked back most of their initial objections.’…It was for that reason that the court gave the defendants a second chance. Twitter does not support Plaintiffs’ position in this case. Unlike the defendants in Twitter, the Plaintiffs did not walk back any of their boilerplate General Objections. Indeed, even the few Plaintiffs that later filed actual responses to the Discovery repeated the same general objections verbatim and incorporated them into every specific interrogatory response and response to the requests for production.”

As a result, Vice Chancellor Fioravanti stated: “Except as to objections on grounds of privilege and work-product, all objections to the Discovery are waived. Plaintiffs failed to provide timely objections to the Discovery and they failed to demonstrate good cause that would excuse their failure to assert timely objections.” Vice Chancellor Fioravanti also ruled: “Even today, almost six months after the deadline, many of the Plaintiffs have not offered a substantive response to a single interrogatory or document request. Plaintiffs’ conduct was not substantially justified, and there are no other circumstances that make an award of expenses unjust. Accordingly, the Defendants are entitled to their reasonable fees and expenses under Rule 37.”

So, what do you think? Is there ever a case where boilerplate objections shouldn’t be waived? Please share any comments you might have or if you’d like to know more about a particular topic.

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