BY NICHOLAS BAUMAN & LINDSEY HERZOG

“The document speaks for itself”One commonly used phrase in answers and discovery responses

is that a document “speaks for itself.” Many defense lawyers use this phrase to avoid con-ceding issues related to the interpretation of a writing, such as a contract. This tactic has drawn criticism from courts, and begin-ning in July 2018 the Arizona Rules of Civ-il Procedure prohibit using this phrase in an

tion in a complaint or counterclaim.”2 The court explained why it wishes illness on the phrase: It violates the plain language of Rule 8(b) and increases the cost of litigation by requiring broader discovery requests.3

Moreover, contending that a document speaks for itself can obscure the meaning of the rest of the response to an allegation. As an example, the complaint in Stovall alleged that “[a]ll loans to insiders … required full Board approval.”4 Defendants responded

CanTheyDoThat

Commonly Misused Phrases in Pleadings and Discovery

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Answer.Long before Arizona prohibited using

“the document speaks for itself” to respond to a complaint, courts have scorned the use of this phrase. For example, in FDIC v. Stovall,1 a court expressed its irritation that more than half of the defendants’ responses contained the phrase. The court wrote, “A pox upon these words. They have no place in a proper response—whether it be made in response to discovery requests or an allega-

1

NICHOLAS BAUMAN is a trial court litigator at Lewis Roca Rothgerber Christie LLP. His practice focuses on commercial litigation,

bankruptcy and legal malpractice.

LINDSEY HERZOG is an associate in Lewis Roca Rothgerber Christie’s Litigation practice group, focusing her practice in class actions,

antitrust and complex commercial litigation.

That Despite decades of efforts to simplify the language used in legal practice, legalistic terms of art

remain common. As young lawyers, we are often unsure whether the lawyers using them are using them

correctly or whether we, too, should use them. This uncertainty comes up a lot with respect to terms of art frequently used in pleadings and discovery responses.

When we see other lawyers use these phrases, we find ourselves asking each other, “Can they do that?”

Shrugging our shoulders was getting us nowhere, so we dug deeper into the meaning of

several commonly used phrases in pleadings and discovery responses. Not surprisingly, we discovered

that quite often the answer to our question is, “No, they definitely cannot do that.”

Some of the phrases are frequently misused, and such misuse can even lead to sanctions. The changes to the Arizona Rules of Civil Procedure that went into effect in July 2018 directly address some of these phrases, and

attorneys should be aware that some of their favorite phrases may now be officially prohibited.

that “the document speaks for itself, any allegation inconsistent with the document is denied, and that defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining alle-gations.”5 The court observed that it was unclear which document spoke for itself, what allegations existed other than the “all loans to insiders” allegation, and whether the defendants were so lacking in informa-tion regarding their board duties that they

were unsure whether they could engage in insider transactions.6 “With the ‘document speaks for itself ’ line, the response is an amorphous nothing.”7 The court requir- ed defendants to amend their Answer to properly respond to the Complaint.8 Other courts have followed suit and required amendment.9

While requiring amendment may seem heavy handed, it can get much worse. Some courts have stricken responses contending

that a document speaks for itself and deemed the corresponding allegations in the com-plaint to be admitted.10

Courts also have concluded that “the document speaks for itself” is not an appro-priate response to discovery requests and warned that such a response can lead to sanctions. For instance, in Aprile Horse Transp. Inc. v. Prestige Delivery Sys. Inc.,11 the court reasoned that such a response “avoids the purpose of requests for admis-

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sion, i.e., narrowing the issues for tri-al.” According to another court, the response is also a waste of time be-cause it “does not move the ball an inch down the field and defeats the narrowing of the issues in dispute

that is the purpose of the rule.”12 At least one court has reasoned that contending a document speaks for itself in a discovery re-sponse can lead to sanctions without an op-portunity to amend the response:

Gamesmanship in the form of non- responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted or in a post-trial award of monetary sanctions without prior opportunity to correct the deficiency. Therefore, the only safe course of action for counsel is to adhere to the plain language of Rule 36(a).13

The new Arizona Rule of Civil Procedure 8(c), which became effective on July 1, 2018, requires a denial of an allegation in a

pleading to “fairly respond to the substance of the allegation. A denial does not fairly respond to the substance of an allegation if it … answers an allegation by stating that ‘the document speaks for itself.’”14 The Committee on Civil Justice Reform’s Re-port noted that parties often state that a document speaks for itself without saying whether they are denying, admitting, or de-nying in part while explaining, or denying for lack of information sufficient to permit

admission or denial.15 The committee pro-posed the rule change “so parties can get to the bottom of their dispute quickly, as the Rules contemplate.”16 Under the revised Rule 8(c), answers will need to respond di-rectly to allegations concerning documents. Although the new rule only affects answers filed in state court, litigators would be well suited to avoid this phrase in discovery re-sponses and answers filed in federal court too.

Can They Do That?

We dug deeper into the meaning of several

commonly used phrases in pleadings and discovery

responses.

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“States a legal conclusion” and “calls for a legal conclusion”

We see the phrases “states a legal conclusion” and “calls for a legal conclusion” primarily in two places: in answers seeking to avoid admitting or denying an allegation and in discovery responses similarly dodging direct questions.

A denial in an answer “must fairly respond to the substance of the allegation.”17 As of July 2018, Rule 8 states, “A denial does not fairly respond to the substance of an allega-tion if it … answers a factual allegation, or an allegation applying law to fact, by claim-ing that it states a legal conclusion.”18 Simi-larly, the revised version of Rule 36 provides that an answer to a request for admission “does not fairly respond to a request if it … responds to a request regarding a fact, or the application of law to fact, by claiming that it states a legal conclusion.”19

Given that the new Rules 8 and 36 leave little room for debate on the propriety of denying an allegation on the basis that it

calls for a legal conclusion, we won’t waste your time with a lengthy discussion of why the Rules are in place. Just avoid claiming that an allegation states a legal conclusion or your adversary could end up stating that a hearing is necessary to address your inadver-tent violation of the new rules.

Arizona Rule of Civil Procedure 33 de-fines the appropriate scope of interrogatories to parties: “An interrogatory may ask about any matter allowed under Rule 26(b). … An interrogatory may ask for a party’s conten-tion about facts or the application of law to facts, but the court may, on motion, order that such contention interrogatory need not be answered until a later time.”20 And now we ask you, having just read the rules, is it a valid objection that an interrogatory or request for admission calls for a legal con-clusion? Did you just shrug your shoulders even though you’re reading this alone? Us too.

We didn’t find Arizona case law discuss-ing “calls for legal conclusion” objections, but Arizona’s Rule 33 is similar to the feder-al Rule 33. Case law interpreting the federal

rule is not consistent on the question of whether, as a general rule, an interrogatory is objectionable on the basis that it “calls for a legal conclusion.”21

The propriety of objecting on the basis that an interrogatory calls for a legal con- clusion turns on whether the interrogatory seeks factual information at its core, even if identification of such facts necessarily in-cludes some type of legal conclusion. For example, in O’Brien v. International Brother- hood of Electrical Workers,22 the district court concluded that an interrogatory seeking an explanation of why statements violated a constitutional provision was not objection-able as seeking a legal conclusion. The court explained that given the constitutional pro-visions at issue proscribed false statements, the interrogatory required the opposing party to identify facts rendering the serving parties’ alleged statements false. This was an appropriate use of an interrogatory.23 A few lines later, however, the court criticized an interrogatory requiring the opposing party to explain why certain constitutional provi-sions were not deprived of force and effect

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by a specific statute. The court ex-plained:

In contrast to the interrogatory previously discussed, this question seeks pure legal conclusions which

relate not to the fact, but to the law of the case. While the line demarcating permissible discovery under Rule 33(b) may be obscure, the court concludes that this interrogatory exceeds the bounds of permissible discovery under the rule.24

Other courts around the country follow this reasoning that an interrogatory improp-erly calls for a legal conclusion when it seeks only a legal conclusion without any relation to the facts of a particular case.25 Courts also disapprove of interrogatories that seek to shift the burden of determining the proper party in the case from plaintiffs to defen-dants.26

In sum, it is appropriate to object to an interrogatory on the basis that it “calls for a legal conclusion” only in very limited cir-

cumstances where the interrogatory seeks a legal conclusion separate from the facts of the case.

“Subject to the foregoing objections”

We have noticed that many discovery re-sponses begin with lengthy objections or incorporate by reference general objections and then follow those objections with re-sponsive information that is provided “sub-ject to the foregoing objections.” We have

wondered whether the responding party is using the objections to withhold informa-tion and if providing documents or respons-es “subject to” objections actually preserves the objections.

In the Arizona case Haeger v. Goodyear Tire & Rubber Co.,27 the court disapproved of combining objections with a partial re-sponse that does not indicate the response is partial. The court reasoned that Federal Rule of Civil Procedure 34 allows a party to serve an objection to a request as a whole or serve an objection to part of the request provided that it specifies the part it is object-

Can They Do That?

3

It is appropriate to object to an interrogatory on the basis that it “calls for a legal conclusion” only

in very limited circumstances.

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ing to and responds to the non-objection-able portions.28 When a party makes a par-tial response, it is “especially critical” that the requesting party be made aware if docu-ments are being withheld.29 The court rea-soned that if Rule 34 allowed responding parties “to make undisclosed partial docu-ment productions, discovery would break down in practically every case.”30

The undisclosed partial objections, and other discovery misconduct, led to monetary sanctions against the responding party and its lawyers.31 The court concluded that the responses were not made in good faith and that the lawyers knew the responses were inadequate.32

Courts are equally critical of responding to interrogatories “subject to” objections. “[W]hen a party responds to an interroga-tory that is ‘subject to’ and ‘without waiving its objections,’ the propounder of the inter-rogatory is left guessing as to whether the responding party has fully or only partially responded to the interrogatory.”33

Furthermore, responding to discovery re- quests “subject to” objections waives the ob-

jections. For instance, the court in Finjan, Inc. v. ESET LLC34 concluded that respons-es to requests for production of documents must be unconditional and cannot reserve the right to raise objections in the future. Language such as “‘without waiving objec-tions’ preserves nothing.”35 The objections are deemed to be waived.36 To preserve ob-jections to producing certain documents, the responding party must put the request-ing party on notice that it is withholding the documents.37 As explained in the Haeger case above, the requesting party must not be “left guessing as to what documents are being withheld.”38 The same framework ap-plies to interrogatory responses.39

Responding to discovery requests “sub-ject to” objections is a practice best avoided. Courts have been critical of the practice and reasoned that a party waives its objections when it responds to a discovery request “subject to” objections. The best practice is to state the objections, respond to the por-tions of the request that are not objection-able, and state that information is being withheld based on the asserted objections.

“In an amount to be proven at trial”As we discovered, sometimes the answer to “Can they do that?” is

“It depends.” A plaintiff may plead damages “in an amount to be proven at trial,” but the July rule changes added a wrinkle. The changes to Rules 8 and 26.2 require plain-tiffs to include a little more information about the value of the case at the outset.

Rule 8 historically has only permitted a dollar amount to be included in the com-plaint where the claim is for “a sum certain or for a sum which can by computation be made certain.”40 In all other circumstances, the Rule explicitly prohibited the inclusion of any dollar amount or figure for damages in any pleading.41 The new rule change retains this prohibition, but plaintiffs now need to plead “that their damages are such as to qualify for a specified tier defined by Rule 26.2(c)(3).”42

The new Rule 26.2 institutes a three-tier system of discovery “based on attributes of cases.” There are both qualitative and quan-titative attributes that must be considered,

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and the assignment of a case to a tier involves the consideration of the proportionality factors contained in Rule 26.1. Parties may stipulate that the case fits into a particular tier, or the court may evaluate the case and

assign it to a tier.43 If the parties do not stip-ulate to assignment to a particular tier and if the court declines to evaluate the case, then the case will be assigned to a tier based on the damages claimed.

Actions claiming less than $50,000 are as- signed to Tier 1. Actions claiming between $50,000 and $300,000 are assigned to Tier 2. Actions claiming over $300,000 are as-signed to Tier 3. The amount of damages

1. No. 2:14-CV-00029-WCO, 2014 WL 8251465 (N.D. Ga. Oct. 2, 2014). 2. Id. at *11. 3. Id. at *11-12. 4. Id. at *11. 5. Id. 6. Id. at *12. 7. Id. 8. Id. at *13. 9. See, e.g., Valley Forge Ins. Co. v. Hartford Iron & Metal Inc., No. 1:14-CV-00006-RLM, 2015 WL 5730662, at *4 (N.D. Ind. Sept. 30, 2015) (striking Answer and requiring amendment); Do It Best Corp. v. Heinen Hardware LLC, No. 1:13-CV-69, 2013 WL 3421924, at *5 (N.D. Ind. July 8, 2013) (collecting cases disapproving of “the docu- ment speaks for itself” in an Answer and requiring amendment). 10. See, e.g., Rudzinski v. Metro. Life Ins. Co., No. 05 C 0474, 2007 WL 2973830, at *4 (N.D. Ill. Oct. 4, 2007). 11. No. 5:13-CV-15-GNS-LLK, 2015 WL 4068457, at *5 (W.D. Ky. July 2, 2015). 12. Miller v. Holzmann, 240 F.R.D. 1, 4 (D.D.C. 2006). 13. House v. Giant of Maryland LLC, 232 F.R.D. 257, 262 (E.D. Va. 2005). 14. Rule 8(c)(2)(A), Ariz.r.Civ.P.. 15. The Committee on Civil Justice Reform’s Report to the Arizona Judi-cial Council, at 13 (Oct. 2016). 16. Id. 17. Ariz.r.Civ.P. 8(b)(2). 18. Id. 8(c)(2)(C). 19. Id. 36(a)(5)(B)(iii). 20. Id. 33(a)(3). 21. See, e.g., Gingerich v. City of Elkhart Probation Dep’t, 273 F.R.D. 532, 537 (N.D. 2011) (“[O]pposing parties cannot be compelled to respond to interrogatories that call for pure legal conclusions.”); Thomas v. Cate, 715 F. Supp. 2d 1012, 1031 (E.D. Cal. 2010) (“Generally, the fact that an interrogatory calls for a legal conclusion is not grounds for an objec tion.”). 22. 443 F. Supp. 1182, 1187 (N.D. Ga. 1977). 23. Id. at 1187. 24. Id. at 1187-88. 25. See, e.g., Gingerich, 273 F.R.D. at 537; Thomas, 75 F. Supp. 2d at 1030- 31; Coles v. Jenkins, 179 F.R.D. 179, 181 (W.D. Va. 1998). 26. See, e.g., Gingerich, 273 F.R.D. at 537; In re Vitamins Antitrust Litiga-

tion, 120 F. Supp. 2d 45, 57 (D.D.C. 2000). 27. 906 F. Supp. 2d 938, 976 (D. Ariz. 2012), aff’d 793 F.3d 1122 (9th Cir. 2015), and aff’d 813 F.3d 1233 (9th Cir. 2016), and vacated and remanded on other grounds 869 F.3d 707 (9th Cir. 2017). 28. Id. (citing Fed.r.Civ.P. 34(b)(2)(B)-(C)). 29. Id. at 977 (citing Rodriguez v. Simmons, No. 2:09-CV-02195 KJN, 2011 WL 1322003, at *7 n.7 (E.D. Cal. Apr. 4, 2011)); see also Sprint Commc’ns Co. LP v. Comcast Cable Commc’ns LLC, Nos. 11-2684- JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 1569963, at *3 (D. Kan. Apr. 18, 2014) (reasoning that producing documents subject to objections “leads the reader wondering whether [the responding party] planned to withhold certain documents based on its objections”). 30. Haeger, 906 F. Supp. 2d at 977. 31. Id. at 981. 32. Id. at 978. 33. Herrera v. AllianceOne Receivable Mgmt., Inc., No. 14-CV-1844-BTM (WVG), 2016 WL 1182751, at *3 (S.D. Cal. Mar. 28, 2016); accord, Estridge v. Target Corp., No. 11-61490-CIV, 2012 WL 527051, at *1-2 (S.D. Fla. Feb. 16, 2012). 34. No. 17CV183 CAB (BGS), 2018 WL 1456923, at *2 (S.D. Cal. Mar. 23, 2018). 35. Id. (citing Consumer Elec. Ass’n v. Compras and Buys Magazine Inc., No. 08-21085-CIV, 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008); Estridge, 2012 WL 527051, at *2 (S.D. Fla. Feb. 16, 2012)) (“Courts in the Eleventh Circuit have found that whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.”) (internal quotations omitted); see also Woodard v. Labrada, No. ED CV 16-189-JGB(SPx), 2017 WL 1018306, at *4 (C.D. Cal. Mar. 6, 2017) (“[T]he purported reserva- tion of rights by a responding party are improper and ultimately have the effect of waiving the objections to the discovery requests.”). 36. Id. 37. Id. 38. Id. (citing Sprint Commc’ns Co. L.P., 2014 WL 1569963 at *3). 39. Sherwin-Williams Co. v. JB Collision Servs. Inc., No. 13-CV-1946-LAB (WVG), 2014 WL 3388871, at *2-3 (S.D. Cal. July 9, 2014); Estridge, 2012 WL 527051, at *1-2. 40. Ariz.r.Civ.P. 8(f). 41. Id. 42. Id. 8(b)(2). 43. Id. 26.2(c).

endnotes

claimed for purposes of assigning a case to a tier does not include claims for punitive damages, interest, attorneys’ fees or costs. Rule 26.2(e). The limits on discovery for each tier are explained in Rule 26.2(f).

For purposes of pleading damages, plain-tiffs still may claim damages “in an amount to be proven at trial,” but are now required to place their claims within a particular range to assist with the implementation of proportional discovery. The implementa-tion of the tier system in pleading damages is one of the most surprising rule changes implemented this year, but the most signifi-cant impact of the rule change will be on discovery. So remember that even though it

is okay to say “in an amount to be proven at trial” in your complaint, the amount of damages you seek will have a significant im-pact on discovery going forward.

ConclusionIn sum, the answer to “Can they do that” is “Yes, no, and sometimes.” While we look for- ward to using our newfound knowledge at our next meet-and-confer conferences, the broader lesson is that many litigators’ favorite phrases are often misused and can have consequenc-es. The new rule changes provide more cer-tainty to the bounds of pleading and discov-ery practice and make it easier for lawyers to discern the answer to “Can they do that?”

Can They Do That?