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Tips for Drafting Your Initial Set of Written Discovery

Richard Tabura


  • Develop a mental checklist for serving an initial set of written discovery to personal injury plaintiffs to make the process more effective and tailored to each case.
  • Use the operative complaint to frame the information sought in discovery and refer to pattern jury instructions to avoid asking irrelevant questions.
  • Utilize "contention interrogatories" to obtain facts, witnesses, and documents the plaintiff will rely on, which can later be used as a basis for a summary judgment.
  • Consider the type of information attainable from the plaintiff to support affirmative defenses, use plaintiff's language whenever possible, and seek HIPAA and employment authorizations to access medical records for claim evaluation.
Tips for Drafting Your Initial Set of Written Discovery

I have a mental checklist that I run through each time I serve an initial set of written discovery to a personal injury plaintiff. This may seem mundane or obvious to the seasoned trial lawyer, but you likely did not learn about the practicalities of discovery in law school. If your training was anything like mine, you “learned” how to prepare discovery by copying discovery requests from a similar case. There is nothing wrong with copying discovery requests, and this should be done where it makes sense, but this resulted in me never taking the time, until recently, to sit back and think of what the purpose of discovery is and how it should be used effectively. As my mental checklist has developed, my written discovery has become more effective, less objectionable, and tailored to the issues and needs of each case.

Here is the checklist:

  • Have the operative complaint available while you draft the initial set of written discovery. Pleadings frame the issues of your case and therefore should frame the information you seek in discovery.
  • Refer to your jurisdiction’s pattern jury instructions to see what the elements are for the causes of action being asserted against your client. Avoid asking irrelevant questions.
  • Use “contention interrogatories” to obtain the facts, witnesses, and documents the plaintiff will rely on to support their claims against your client. Many plaintiff’s attorneys will object to these based on privilege grounds or that the request is premature. While they may have a point about the request being somewhat premature, they cannot rely on that excuse forever. Responses (or lack of response) to “contention interrogatories” can provide the basis for a summary judgment.
  • Know the type of information that is attainable from plaintiff that can support your affirmative defenses and ask for it. Much of the evidence you may need to support your affirmative defenses is not the sort of thing a plaintiff would be privy to. But some types of information they should have, such as product identification information. Ask for it.
  • Try to use the language used in the complaint wherever possible. This is particularly true when using contention interrogatories. Using plaintiff’s language makes it more difficult for them to object on form grounds.
  • Use the complaint to know each type of damages plaintiff is seeking and make sure they are recoverable by comparing with your jurisdiction’s pattern jury instructions. Is the plaintiff(s) only seeking survivor damages? Wrongful death damages? The answers to questions like this will inform the type of discovery you will need.
  • Send HIPAA and employment authorizations to plaintiff’s counsel. Getting a complete set of plaintiff’s medical records is crucial to evaluating a claim.
  • Consider whether your requests might upset a codefendant. Wherever possible I try to maintain a united front with codefendants. Think carefully about whether your discovery request to plaintiff will throw a codefendant under the bus. You may or may not want to do this.
  • If a plaintiff is going to rely on certain information, witnesses, or documents to prove their claims or damages, you should ask for it. I used to feel like I was being insensitive for asking for discovery substantiating certain types of damages claims like loss of consortium or loss of society damages. But you do not want to find out about this information for the first time at trial. If plaintiff makes it an issue by seeking that type of damages, do not feel bad about seeking discovery substantiating the claim.

Again, this was not meant to be complete checklist of every consideration that should be made prior to serving an initial set of written discovery. I have a very specific perspective and I’m sure over time my list will evolve. But generally, take the time to really think about the issues in your case. Don’t just copy and paste your requests. In the long run you will save yourself time and your client money.