Being thorough is a primary hallmark of a good attorney. Litigation provides many opportunities to be thorough—or to miss a small detail. In order to avoid an error, it is therefore tempting to be too thorough. The use of forms containing boilerplate affirmative defenses and discovery objections without supporting facts or arguments is one example; used properly they can increase efficiency and prompt you to consider objections and arguments that you might otherwise miss. Used improperly, they are rarely effective, can lead to unnecessary motions practice, additional expense and difficult conversations with clients. They are a reminder that being thorough does not mean using every tool and making every argument that can be made—but that being thorough means thinking through a form to ensure that only the relevant portions are used.
Forms can be seductive; you can take forms that have been used successfully by your firm, plug them in to a pleading, modify them to make sure your case’s needs are addressed, and file the document. Forms reduces the work you have to do and appears to ensure that issues you may have missed are covered. The goal of this article is not to convince you to avoid forms or boilerplate—they are useful tools that can help you avoid the error of missing a defense or argument, and allow you to use time-tested documents quickly for your client. Instead, I argue that an attorney must think critically when using forms, ensuring that all defenses and objections listed are arguably supportable by factual allegations or relevant legal conclusions. By using the forms critically, you can ensure that you do not miss an objection or argument, without opening yourself and your client to the time and expense involved with motions practice and overbroad discovery. You can use forms as an analysis tool as well—an opening to consider how the case will develop based on the allegations that you are able to support.
Below are two situations that underscore the need to carefully scrutinize the forms that you use in litigation.
- Boilerplate Affirmative Defenses Can be Struck in Pennsylvania
The appellate courts in Pennsylvania have not ruled specifically on this issue, but the Common Pleas Courts have repeatedly held that Connor v. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983) applies to new matter and requires factual averments to be pleaded in support of affirmative defenses. See Meyers v. Carey, No. 11-01166 (Lyco. Co. 2012); Lee v. Denner, 76 Pa. D. & C. 4th 181, 192 (Monr. Co. 2005); and Allen v. Lipson, 8 Pa. D. & C. 4th 390, 395 (Lyco. Co. 1990).
The lure of asserting boilerplate affirmative defenses starts with Pennsylvania Rule of Civil Procedure 1030. Rule 1030 requires that all affirmative defenses, other than assumption of the risk, comparative negligence and contributory negligence, be plead as new matter. Rule 1030 states that a party may assert “as new matter any other material facts which are not merely denials.” Failure to assert an affirmative defense can lead to waiver of the defense, an alarming prospect. However, while Rule 1030 does not itself require factual averments, it does not relieve a party from complying with Rule 1019(a) which states: “The material facts on which a cause of action or defense is based shall be stated in concise and summary form.”
Rule 1019 specifically requires a pleader to disclose the material facts sufficient to enable the adverse party to prepare his case, as in Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. Ct. 2008). The term “material facts” has been defined as “those facts essential to support the claim” raised in the matter, as in Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974).
It is normal for the issues in a case to be unclear when drafting an answer; it is also normal to want to address every possible issue and raise every possible defense—especially mandatory defenses—in order to avoid missing a defense. In an unreported case, one judge called this the “spaghetti approach” and labeled it “unproductive,” see Donegal Mutual Insurance v. Stroker, 2010 WL 5571389 (Monr. Cty., 2010).
The spaghetti approach—throwing everything up on the wall to see what sticks—leaves a responding party with two choices: file preliminary objections and have the unsupported new matter stricken, or; embark on broad discovery and hope there were no unpleaded facts that would support a generally averred affirmative defense, see Allen v. Lipson, 8 Pa. D. & C. 4th 390, 395 (Lyco. Co. 1990). The first choice, filing preliminary objections, is clearly preferable and eliminates the possibility of surprise or the expense of unfocused discovery. Inviting a motion you will likely lose is also not a good strategy or use of client funds, and an issue you don’t want to discuss with your client.
- Boilerplate Objections to Discovery Will be Challenged
General, unsupported objections to discovery do not work. While this is not new law, we all see general and non-specific objections in lieu of responses fairly regularly. This leads to motions practice and can frustrate the judge and clients.
With regard to interrogatories, Rule 4006(a)(2) states that “each interrogatory shall be answered fully and completely unless objected to.” The rule goes on to state that “… the reasons for the objection shall be stated in lieu of an answer.” Rule 4006 also allows the party serving the interrogatories to “move the court to dismiss an objection and direct that the interrogatory be answered.”
When objections are challenged, the objector carries the burden of establishing that the information or documents sought are nondiscoverable. Rules 4003.1-3 set forth the basic scope of permissible discovery. Rule 4011 establishes the four specific categories of impermissible discovery. It is well established by our courts that counsel should be specific as to which of the categories is applicable to their objection and support those objections in compliance with Rule 4006(a)(2), see Hilton v. Willought, 13 Pa. D. & C.3d 587 (Pa. Com. Pl. 1980). Merely stating that an interrogatory is broad, burdensome and improper is not sufficient. Further, an objection which asserts that the interrogatory goes beyond the discovery limitations in the Rules of Civil Procedure must also clearly state why the interrogatory is objectionable, as in Epstein v. Safeway Trail, 68 Pa. D. & C.2d 175 (Pa. Com. Pl. 1974). Although distinguished on unrelated grounds by Rhodes v. USAA Casualty Insurance, 21 A.3d 1353 (Pa. Super. 2011), the trial level case Ruesswig v. Erie Insurance, Pa D. & C. 4th 338, (Pa. Com. Pl 2000) provides a thorough examination of each category of objection in the context of a discovery challenge. In short, after analyzing each category of objection to interrogatories and request for production, the court granted the motion to dismiss objections and ordered the objecting party provide full and complete responses.
Using boilerplate objections without support can lead to a challenge by opposing counsel; they are generally impermissible and can lead to a frustrated judge and an annoyed client. You may even find that astute opposing counsel can use their discovery motion to probe your case strategy—causing you to defend your objections in detail and finding where your arguments are weak. This is not to say that objections are meaningless. To the contrary, it is our duty to assert well thought out and supported objections to improper discovery. However, where boilerplate objections are posed without preparation and thought, counsel will have wasted time and money on motions practice only to be ordered back to the drawing board.
Christopher E. Ezold is the managing partner of the business and health law group at the Ezold Law Firm. He has been litigating commercial matters for over 20 years in state and federal courts, including contracts and UCC matters, restrictive covenants, business divorces and more.