February 28, 2018 Practice Points

Propounding Written Discovery Requests

Practical advice on a common task in a young litigator's career.

By Michelle Molinaro Burke

A common task in a young litigator's career is drafting written discovery requests. Before discovery requests are propounded, you should understand the rules of the jurisdiction and the court as to the number and scope of discovery requests that are permissible. For instance, if the case is in federal court, it is important when preparing the draft scheduling order to be aware of potential limits on the number of interrogatories/requests for production a party may serve, and limitation on the scope of the topics that may be addressed during discovery. As you craft written discovery, you should have already made efforts to investigate the case with your client. This critical step will give you an advantage on the types of information and documents that the other side might have available and will assist you in crafting discovery requests that take direct aim at gathering these materials.

When propounding interrogatories that will garner the correct and expected information, the requests should be as clear and concise as possible, and define ambiguous terms in the interrogatory or in a centralized place in the document. Wherever possible, use uniform interrogatories that have already been pre-approved by the jurisdiction you are in, which gives your adversary little room to object to supplying complete and responsive answers.

Document Requests
Again, the key to ensuring that your requests garner the right documents is to make sure that the requests are as clear and concise as possible. Do not limit requests to certain types of materials if it is possible that the requested information could be found in other types of materials. In this circumstance, consider all possible mediums on which the requested information might be available and specifically request the information in all possible formats, including electronically stored information. For instance, if you are looking to obtain statements made by eyewitnesses to an accident, it is best to request copies of documents, video recordings, and audio recordings. In this scenario, if only documents are requested, and your adversary has a tape-recorded statement that he wishes to hide, he will succeed in doing so if the request is not worded or defined properly.

Requests for Admissions
Requests for admissions are a helpful discovery device that in most jurisdictions can be propounded until the time of trial. These requests can help streamline the issues in the case, which may allow the attorney to spend his or her time discovering issues that are more complicated and important to the case. To garner responses that are usable at trial, propound requests that certain facts be admitted, instead of asking the other side to admit legal conclusions. When the requests are tailored to the facts of the case, courts are more likely to compel the other side to respond and are less likely to sustain your adversary's invalid objections.

Dealing with Objections
When the other side objects to supplying information and documents in response to key discovery requests, motion practice is almost certain to ensue. Thus, plan each next step with an eye toward motion practice, and with the general assumption that any communications you have with your adversary—and particularly where you are dealing with a difficult adversary— will be presented to the court.

When objections to discovery are raised, most jurisdictions require parties to “meet and confer” on the disputed discovery requests. When dealing with an adversary that is difficult to reason with or trust over the phone, it is best to prepare a letter that specifically outlines which discovery responses you believe are deficient and do not contain valid objections. Close the letter by stating that your adversary should consider the letter to be the requisite “meet and confer,” and provide him or her with an allotted time within which to correct the deficient responses. To maintain your credibility, be prepared to approach the court if the request is ignored; don’t make empty threats. Check with the court as to whether a motion may be filed or whether the court prefers that the discovery dispute be dealt with through a letter or a request for case-management conference.

Once it is clear that the dispute cannot be resolved without motion practice, as the less extreme option, motions to compel should be filed in circumstances where opposing counsel’s objections are fairly limited and where a court is unlikely to take the more extreme step of striking the party’s pleading for noncompliance. On the other hand, motions to strike pleadings should be considered in circumstances where the opposing party has failed to respond to discovery completely or has objected to so many requests that the party has effectively failed to respond to discovery at all. Consult the rules of the jurisdiction to determine whether an order compelling discovery is required before pleadings can be stricken.

Michelle Molinaro Burke is counsel at Porzio, Bromberg & Newman, PC, in New York, New York.

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