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Welcome to the Case of the Week podcast

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, where each week , we break down a recent decision

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in electronic discovery case law and

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talk about the practical impact for you

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and your clients and keep you up to date

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on your obligations with electronically stored

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information as evidence . If you're a litigator

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, legal professional or you love the power

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of ESI as much as I do , this

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is the place to be . I'm Kelly Twigger , the

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CEO and founder of eDiscovery Assistant

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and the principal at ESI Attorneys , with

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more than 25 years of experience navigating

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the evolving landscape of litigation and

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eDiscovery . I'm a practicing attorney

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, author , speaker , entrepreneur

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and now podcaster who works as a

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discovery strategist and expert for

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clients at ESI Attorneys and to provide

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that knowledge to all legal professionals through

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our e-discovery assistant platform . In

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each episode , we'll tackle a new decision

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in e-discovery case law and how it

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shapes both your litigation strategy and

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planning for risk mitigation . If

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you're ready for blunt , actionable insights

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that keep you ahead of the curve , and maybe

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a few laughs along the way , this is your

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go-to podcast . Subscribe

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or follow now to start embracing the episode of the Case

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of the Week series brought to you by

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eDiscovery Assistant . This week's decision

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raises the issue of general

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objections and the potential

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waiver implications following

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the amendment to the federal rules to civil procedure

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in 2015 . That requires

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specific objections to an individual

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interrogatory or request for production

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. All right , let's dive into this week's decision

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. It comes to us from Bocock

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v Innovate Corp . This

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is a state court decision from the Delaware

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Chancery Court , and this decision comes

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to us from Vice Chancellor Paul

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Fiavorante , dated

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December 6 , 2023

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. Now , as always , we add

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the issues associated with each decision

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in our e-discovery system database , and

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this week's issues include cost recovery

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, attorney-client privilege , attorney work

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, product waiver , sanctions

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and general objections . Now

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, as we dive into the facts of this case

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, please note that this is an unpublished

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ruling , so you will need to check with your

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court rules as to whether or not this decision

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can be cited . We always note

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decisions that are unpublished in e-discovery

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assistant with a yellow banner at the top

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of the case and a note that you need

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to make a decision of determination as

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to whether or not you can cite those decisions

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to the court . You're in All right . We are

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before the court on a motion to compel discovery

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responses and seeking costs

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for the motion , in which the defendants are

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asking the court to find that plaintiffs have

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waived all of their objections based on

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plaintiff's failure to respond to defendants'

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discovery requests . Let's start

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with , as we often do on Case of the Week

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, the timeline that's relevant to

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the motion , and pay attention especially

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to the amount of time that lapses between

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the complaint and when the

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plaintiffs are actually arguing their motion before

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the court , as well as what they have provided

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in that time frame . On June 23

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, 2021 , 26

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plaintiffs filed this complaint

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. The court dismissed the majority of the plaintiff's

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claims more than a year later , on October

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28 , 2022 . Fast

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forward nine months or so and on

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May 5 , 2023 , almost

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two years after the original complaint was

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filed , the defendant served interrogatories

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and requests for production on the plaintiffs

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. Now , responses to that discovery

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were due on June 5th 2023

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, and the plaintiffs sought from the defendants

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and received a 15-day extension

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to respond , so until June

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20th . On June 20th 2023

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, the plaintiffs served a single

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collective response consisting

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of seven pages of general

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objections , but nothing

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else . According to the court , the objections

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consisted of quote boilerplate

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and , in many instances , duplicative

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objections that are untethered to

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any specific request or interrogatory

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. Inexplicably , plaintiffs did not

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provide a specific or substantive

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response to a single interrogatory

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or request for production . Close quote On

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June 22nd , so two days later . The

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defendants insisted on proper responses

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by June 28th and advised the plaintiffs

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that they had waived all objections to

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the discovery by failing to provide specific

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responses and objections . Plaintiffs

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did not respond by June 28th

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and the defendants requested a meet and confer immediately On June 29th

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. The plaintiffs did not respond by June 28th and the defendants requested a meet and confer

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immediately . On June 29th the plaintiffs responded

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to the defendants request for a meet and confer that they

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were working on responses and would provide

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them on a rolling basis the week of July 3rd

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and they proposed a meet and

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confer for July 5th or 6th . The

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defendants responded to that request for a

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meet and confer within 90 minutes , but

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the plaintiffs never replied . On

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July 12th the plaintiffs still

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had not responded and the defendants then filed

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their motion to compel . Now

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, on the motion the plaintiffs

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do not quote attempt to justify

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their failure to provide discovery . Close quote

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Instead , they argue that cost

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shifting on the motion is not warranted for

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two reasons First , because there are so many

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plaintiffs that need to provide discovery and

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second , that there is no prejudice to the defendants

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because there is no case scheduling

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order in place . Now , if

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you're a regular here on Case of the Week , or

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if you have read Federal Rule of Civil Procedure

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34 that the Chancery Court rule

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mirrors , you know that there is nothing

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in that rule that limits the response times

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or the ability to assign costs

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based on whether there is prejudice to

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the other side . Now just to be clear

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here , the Chancery Court rule in Delaware is

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not a mirror image of Rule

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34 , but the language is basically

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the same and the interpretation by the courts

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has been basically the same . So keep that in

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mind as we move forward with this state court

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decision . We've got the Delaware Chancery Court

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that is essentially tracking the federal

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rules for purposes of what we need here

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Rule 26 , rule 33 , and Rule 34

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, as well as Rule 37 . So what

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is the court's analysis here on this set of

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facts ? Well , the court first addressed the motion to

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compel and cost shifting on the motion

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cost , and the court found that

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plaintiffs failed to respond to the discovery

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despite the extension , and that the general

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objections did not meet plaintiffs' obligations

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to provide discovery responses . The

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court also rejected the plaintiffs' argument

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raised for the first time at the

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December 2023 hearing that it would

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soon be filing an amended complaint listing

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only two of the 26 plaintiffs

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and that those two plaintiffs belatedly

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have served their discovery responses

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, making the defendant's motion

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moot . The court called the plaintiff's argument

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frivolous , finding that all 26

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plaintiffs were named as plaintiffs

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when the discovery was served and that they have

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failed to provide responses for more than

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168 days . Essentially

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, the court says , hey , you can't

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tell us you might file a complaint , you haven't

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filed a complaint and , as of right now

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and for the last 168 days

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, your obligation has been to provide discovery

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responses for all 26 plaintiffs

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. The court granted the motion to compel

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and ordered plaintiffs to serve discovery

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within five days . The court

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then turned to whether the plaintiffs had waived

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their objections to discovery , and

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the court begins here with a review of the requirements

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of Chancery Court Rules 33 and 34

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, which , as I mentioned , are basically the same

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as Federal Rules of Civil Procedure 33

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and 34 , which requires , since 2015

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, that all objections to discovery be

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stated with specificity . Citing

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to the rules , the court states that , quote

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Court of Chancery Rule 33B

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requires a responding party to restate

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and answer each interrogatory

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separately and fully in writing

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under oath , unless it is objected

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to , in which event the objecting party

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shall state the reasons for

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the objection and shall answer to

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the extent the interrogatory is not

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objectionable . Close quote Under

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court of Chancery Rule 34B

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, the responding party must state , with

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respect to each item or category

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of documents requested , that inspection

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and related activities will be permitted

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as requested unless the request

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is objected to , in which event

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the grounds and reasons for objection

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shall be stated with specificity . Again

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, close quote . But

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the court does pause here on the scope of the waiver and the issue of whether or not the attorney-client

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privilege has been waived , which of course

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is one of the most important parts of waiver . Following

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a review of case law that such a

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waiver of attorney-client privilege is

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quote harsh and rare , the

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court notes that typically a party will

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assert a general objection on the grounds

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of privilege and then provide

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sufficient detail in a privilege log produced

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with the discovery responses . The

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court here declined to declare a waiver of privilege but did order that all other objections

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to discovery are waived as a result of plaintiff's failure to provide

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timely objections and demonstrate

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good cause that would excuse their

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failure to do so . The court also found

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that under the language of Chancery Court , rule

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37 , which again mirrors Federal

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Rules , civil Procedure 37 , that the

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court shall require plaintiffs to pay the

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motion costs here because their conduct was

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not substantially justified . The

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court rejected plaintiffs argument that

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fee shifting was not justified where there

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was no prejudice and notes that

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the issue here is not whether there is prejudice

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, but whether good cause exists for failure

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to produce . And the plaintiffs had not

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demonstrated good cause . All

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right , what are our takeaways here ? Well , the

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facts of this case are kind of a no-brainer

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based on the language of the rules . So why

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did I choose this case ? That's a valid

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question , and the reason is this

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it's a perfect example of

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the importance of doing discovery early

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on and of the

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potential implications

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of using general objections

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when those have been abolished by the federal

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rules . Now , I've been involved in seeking

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discovery from individual plaintiffs , and it

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is time-consuming . You

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often have to work with them on evenings

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or weekends . They don't understand

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the process of what it involves or

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why they have to provide discovery

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. They don't understand technology and

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they don't want you in their personal data . None

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of that , however , relieves their obligations

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to provide discovery , and

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in this case , the best time to identify

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and collect discovery from those 26

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plaintiffs here would have been when they

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were engaged to bring suit and the

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time the complaint was filed . That's

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the one time they're completely engaged

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. Instead , counsel here waited more than

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two years after the complaint was filed

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to start identifying discovery , and

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we know well that means that there are

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issues with email account passwords

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being lost , mobile devices being lost

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, stolen or traded in , among

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many other things that can happen with

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regard to personal ESI . It's

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next to impossible to navigate all

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of that for 26 plaintiffs in 30

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days once discovery has been

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served . Now there are a

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lot of factors when you have multiple

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plaintiffs in a case , and I am not sidestepping

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any of those , but that doesn't

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change what your obligations are or

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the reality that if you're going

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to bring a complaint , you have to be

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prepared to provide the discovery from

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those plaintiffs under the same

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time restrictions as anybody else

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in litigation . Now this decision

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is also a brutal reminder of the fact

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that the Federal Rules of Civil Procedure , in

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which the Chancery Court here follows , was

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amended in 2015 to require

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specific objections , and that

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failure to do so will constitute

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a waiver . Plaintiffs here escaped by

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the skin of their teeth when the court declined

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to order that privilege had been waived . In

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this case , waiving your objections to proportionality

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may not be such an issue , but it will

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be in others , so heed this cautionary

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tale and don't mess around with general

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objections . I'm still seeing

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them over and over again and

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I get counsel who say to me oh

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, it's fine , we know what we're doing . Do

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you Now make your objections

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specific to each request

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? To do that , you'll need to get your

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hands into the issues early on

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so you can make those specific objections

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. Citing those responses has meaningful

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ramifications under Rule 26G

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and has resulted in sanctions

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against counsel for failure to make reasonable

12:37

efforts as required by the rules . Now

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there are a long line of cases on general

12:42

objections following the

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amendments to the rules in 2015 . We

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have a specific issue tag in eDiscovery

12:48

Assistant for you to find them . Read

12:51

up on the case law . Know what your obligations

12:53

are to provide specific objections

12:55

and what that means . Don't allow

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waiver . It's a potential malpractice

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trap and not only that , but it can significantly

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impact your client's case going forward . All

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right , that's our case of the week . For this week , thanks

13:07

so much for joining me . We'll be back again next

13:09

week with another decision from our eDiscovery Assistant

13:12

database . As always , if you have suggestions

13:14

for a case to be covered , please drop me a line

13:16

. If you'd like to receive our newsletter , you

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can sign up at ediscoveryassistantcom backslash

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blog , which is the link Deja provided

13:23

, and if you're interested in doing a free trial

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of our case law and resource database , you can

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sign up at ediscoveryassistantcom Thanks

13:30

. Thanks

13:32

for joining me on the Case of the Week podcast

13:34

Tune in next episode as I discuss a new

13:36

decision in eDiscovery case law and

13:39

identify the issues you need to be paying attention

13:41

to and how they can help you do better discovery

13:43

for your clients and leverage the power

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of ESI . Be sure to subscribe

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and leave a review to help others discover the show

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and be kept in the know on all things

13:52

electronic discovery . I'm Kelly Twigger

13:54

. See you next time .