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

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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.


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William H. Lawson, Esq. and
Amy L. Woodward, Esq.

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Honolulu, HI 96813

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Game Truck Georgia was recently hit with a $4.7 million judgment for injuries arising out of a game of "bubble soccer". But this was after they had pleaded with their insurer to settle those same claims for a pretrial offer of $1 million - which was within their policy limits. Their insurer, Atlantic Specialty Insurance, declined those offers and forced the case to trial. Now the attorneys for Game Truck Georgia are chasing their own insurance company for its bad faith refusal to settle - a refusal which led to the insolvency and desctruction of their business.





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