By Meghan Droste, February 13, 2019
The EEO process, which should be your valentine, does not end when an agency issues a Report of Investigation. It often continues in front of an EEOC administrative judge, which means both sides spend a fair amount of time requesting, producing, and reviewing information in discovery. For the next few Tips from the Other Side, I am going to share some tips that should make the discovery process more efficient and less painful for you.
The first discovery tip is to avoid boilerplate objections. It is not enough to simply say that a request is vague, or overly broad, or unduly burdensome. If any of these things are true about a request from the other side, be sure to explain exactly what the issue is — what part of the request is vague, in what way (scope, time period, etc.) is the request overly broad, or why would responding to the request actually be burdensome? You should also keep in mind that a boilerplate objection that the requests are not likely to lead to the discovery of admissible evidence is not going to get you very far. See Petty v. Dep’t of Defense, EEOC App. No. 01A24206 (July 11, 2003) (finding that objections about the likelihood of leading to admissible evidence are largely unhelpful and improper because “questions of evidentiary admissibility are rarely implicated in federal sector hearings”).
Boilerplate objections are objectionable (yes, pun intended) for two main reasons. The first is that they are a waste of time. They do not assist the parties in resolving any discovery disputes and instead lead to unnecessary correspondence and motions that could be avoided with more meaningful objections. The second reason is that they may very well backfire against the party raising them. Some courts have held that not only will they overrule boilerplate objections, but they will also find that the party making them has waived all objections and therefore must respond fully to the original request. See, e.g., Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 247 (M.D.N.C. 2010) (“By failing to present valid objections to these discovery requests, Plaintiff ‘waived any legitimate objections [they] may have had.’”); Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL, 2005 U.S. Dist. LEXIS 16946, at *31 (D. Kan. Aug. 12, 2005) (“Defendant . . . fails to explain how the request is overly broad and any alleged overbreadth is not apparent on the face of the request. The court, then, must overrule the objection.”). In order to preserve your right to object, as well as your time and resources, you should be as specific as possible in your objections. Leave the boilerplate language for the printing presses where the term may have originated. Droste@FELTG.com