Chapter 13 thirteen interrogatories and requests for production

Civil Litigation:Process and Procedures

Chapter ThirteenInterrogatories and Requests for Production

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

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Interrogatories and Requests for Production The two most frequently used

discovery devices Written requests for information Addressed only to parties, not

witnesses The basis for other

investigation, additional discovery requests




Interrogatories A formal request for answers to written

questions Answers are made under oath, signed by the

client/party Subject to perjury laws Can be used for impeachment at trial

Protected information generates an objection, rather than an answer Usually privilege or work product Attorney must sign (ratify) an objection




Requests for Production Federal Rule 34 – Production of

Documents and Things and Entry Upon Land for Inspection and Other Purposes

Moveable items and documents must be furnished upon receiving the discovery request

Non-moveable items (e.g., real property, large equipment) can be inspected on-site (entry)

Requests for protected material should generate an objection




Request for Production – Non-Parties Although the discovery tool is not

available, non-parties may be asked to produce documents or permit inspection

The request comes in the form of a subpoena duces tecum

This may also command an appearance at a hearing, deposition or trial




Subpoena on a Non-Party




Discovery Document Format Similar to pleadings

Caption Identification of the document Introductory paragraph Party serving it Action required of the recipient List of definitions Body Attorney’s signature Certification of service Verification of the party (answer)




Body of the Document In interrogatories, written questions In requests for productions

List of documents List of physical objects Proposed arrangements for inspection,

right of entry




Time-Frame Some preliminary information is

required “up-front” A meet-and-confer will set out the

timeline The faster the discovery is completed,

the greater the time available for settlement prior to trial

Deadlines may be extended In initial discovery plan By stipulation between the attorneys By order of the court, with good cause




Drafting Interrogatories Largest source of objections during

discovery Court may limit the number of objections Used to obtain information controlled by

the other party In addition to 25 initial questions, there

will be initial disclosures under federal rules which will eliminate some areas of inquiry




Drafting Based on an analysis of the claims,

proof needed, and possible defenses May be modeled on forms for simple

cases (form books, form files) In complex cases, may be designed

to lead to additional avenues of investigation




Claims, Defenses, Issues Review the complaint, any motions Review or research the elements

needed to prove the claims Review the defenses outlined in the

answer Review the preliminary material

provided under Fed. Rule 26




Proof What will need to be produced to prove

the client’s claim or defense? Identity of witnesses Documentary evidence Physical evidence Inspection or testing required for expert

analysis As a matter of strategy, some questions

will be reserved for depositions (more spontaneous responses)




Preparing Interrogatories Writing

Review pleadings and prepare a list of claims & defenses

Review or research the necessary elements Review initial disclosures made under Rule

26(a) Identify areas with a lack of supporting

information Service

Set of interrogatories should be sent to opposing counsel(s), if that party is represented




Reminders Never directly contact a party who is

represented by counsel Be sure to calendar (docket or tickle) the

expected due date for answers If responding to interrogatories, be sure to

calendar the necessary reminders as well as the due date

If the due date passes without response, a motion to compel may need to be prepared




Responding to Interrogatories Make 2 working copies Review with attorney to identify any

objections Send a copy to the client & schedule a

meeting Review all case information Meet with the client, draft responses Review draft responses with attorney, amend

as necessary Meet with client for verification of final

answers Be sure response is received before due date




Objectionable Questions The attorney will object to questions that

should not be answered Seek information protected by

Privilege Work product doctrine Trade secrets exception

Duplicative or under control of the requesting party

Vague, overly broad, burdensome (can narrow)

Unlikely to lead to admissible evidence




Narrowing the Scope




Motion for a Protective Order The requesting party may accept the

objection coupled with a narrower answer

If not, a motion for protective order will be filed with the court at the same time answers are served on the opposing attorney

The judge will sustain or overrule the objection




Discrepancies If the client information differs from

that contained in the file May be a faulty memory May be a change in facts that could

affect a claim or defense Must be brought to the attention of the

lead attorney as soon as possible The client signs under penalty of

perjury




Certificate of Service




Reviewing Answers Check to see that all have been

addressed Answered fully Objected to

If a motion for a protective order has been filed, calendar (tickle) it with adequate reminders for preparation

Analyze answers to discover any follow-up required by requests for production or deposition




Preparing a Request for Documents Integrate information from

interrogatories into case file, and re-analyze the claims, elements & defenses

Request any documents revealed in the previous discovery requests (remembering that the order of discovery is a strategy issue)




A Request for Production




Responding to Requests for Production

Each document requested must be reviewed by the attorney for possible objections, including relevance

Be sure the documents are numbered Each request MUST be answered, with the

document requested or an objection If the production of documents is unduly

burdensome, the requesting party may be permitted to review & copy the pertinent documents




Retrieving Documents Paralegals may do manual reviewing

& copying of documents The material requested may be in

electronic format for litigation support (or document management) software to search

The material may be scanned from hard copy for the same purpose




Reviewing Responses Every request should have an answer Be sure the documents requested are

actually provided If there are objections, the attorney must

determine whether to accede to the objection or defend the protective order request

If there is no response, a motion to compel may be needed




Meet and Confer Before the initial scheduling

conference with the judge – Rule 26(f)

Try to stipulate to Timelines Formats of electronic documents

required “Claw-back” provisions, etc.

Reported back to the judge for use at the scheduling conference




E-Discovery Questions for the Client’s Business Who manages the computers/network? What programs/software are used? What are the e-mail IM provisions? How are documents created, transmitted, stored? What is the back-up system? Who in the company has access/administrative rights? Who outside the company has access? What is the security system? Who performs maintenance & repair? What is the document retention, archiving & destruction

policy?




E-Discovery Considerations Native format or TIFF/PDF? Metadata? Cost of retrieving

Destroyed or corrupted files Files stored on obsolete devices

Client’s retention policy (litigation hold)

“Claw-back” provisions