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Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court

Boilerplate Discovery Responses may be Dangerous in the 9th Circuit

In the recent case of Burlington Northern & Santa Fe Railway Company v. United States District Court for the District of Montana, 408 F.3d 1142 (9th Cir. 2005) the Ninth Circuit tried to “chart a middle road through the wide spectrum of caselaw regulating discovery.” The court's conclusions were somewhat more extreme however as the court stated: “We hold that boilerplate objections for blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege. However, we also reject a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34’s 30-day time limit.” The court directed the district courts to make case-by-case “analysis” of the privilege waiver question, and to consider a number of relevant factors before ruling.