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Discovery Cheat Sheets

Discovery Cheat Sheets

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Arizona Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
Requests for Admission
  • Overview
I. Drafting Requests for Admissions (RFAs)
A. Timing of RFAs

1. Service of RFAs may be limited in time based on assigned tier in the joint report and proposed scheduling order (Ariz. R. Civ. P. 16(b), (c); Ariz. R. Civ. P. 26(f))

2. Parties may stipulate to reduce or enlarge the time for service or responses to RFAs (Ariz. R. Civ. P. 36(a)(4))

B. Formal Requirements

1. Each matter for which an admission is requested must be set forth separately (Ariz. R. Civ. P. 36(a))

2. Requests for admissions should be clear, unambiguous, and never compound

3. Consider prefacing requests with a section defining terms specific to the litigation and abbreviations

C. Scope of RFAs

1. Requests for admissions may ask for the truth of any matters within the scope of Ariz. R. Civ. P. 36(a)(1)

2. Arizona does not permit many objections to RFAs and requires substantive responses (Ariz. R. Civ. P. 36(a)(5)(B))

II. Responding to RFAs
A. Timing of the Response

1. Response due within 30 days after service of the request, with exceptions for newly served defendants (Ariz. R. Civ. P. 36(a)(4))

2. Parties may stipulate to a shorter or longer time period for responses, or the court may order a different time period

B. Serving the Response

1. Responses should be carefully served according to Ariz. R. Civ. P. 5

2. Consider limiting service of responses to means with confirmation of receipt and include a certificate of service (Ariz. R. Civ. P. 5(c)(3))

C. Requirements for the Substance of the Response

1. If a matter is not admitted, the response must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it (Ariz. R. Civ. P. 36(a)(5)(A))

2. Denials must fairly respond to the substance of the matter and specify the part admitted and qualify or deny the rest (Ariz. R. Civ. P. 36(a)(5)(B))

3. If asserting lack of knowledge or information, state that a reasonable inquiry was made (Ariz. R. Civ. P. 36(a)(5)(C))

4. If objecting, state the grounds for the objection (Ariz. R. Civ. P. 36(a)(6))

D. Objections, Denials, and Inability to Respond

1. Privilege: If the requested admission seeks information that is privileged, an objection may be raised (Ariz. R. Civ. P. 26(b)). For example, if the request seeks information protected by attorney-client privilege, an objection on this basis is appropriate.

2. Relevance: An objection may be lodged if the requested admission seeks information that is not relevant to the subject matter involved in the pending action (Ariz. R. Civ. P. 36(a)(1)).

3. Undue Burden or Harassment: If the request imposes an undue burden or is intended to harass the responding party, an objection may be raised (Ariz. R. Civ. P. 26(b)(1)).

4. Vague or Ambiguous Request: An objection may be lodged if the request is vague or ambiguous, making it difficult for the responding party to provide a clear and specific response (Ariz. R. Civ. P. 36(a)(5)(A)).

5. Asking for Legal Conclusions: If the request seeks a legal conclusion rather than the admission of a fact or the genuineness of a document, an objection may be raised (Ariz. R. Civ. P. 36(a)(5)(B)).

Impermissible Objections

6. Genuine Issue for Trial: A party may not object to a request for admission solely because the request presents a genuine issue for trial (Ariz. R. Civ. P. 36(a)(6)). Instead, the party may deny the matter or set forth reasons for not being able to admit or deny (Ariz. R. Civ. P. 36(a)).

E. Sufficiency of Responses and Recovery of Expenses

1. A party may file a motion to determine the sufficiency of any answers or objections (Ariz. R. Civ. P. 36(a)(7))

2. The court may order an answer be served, the matter admitted, or an amended answer served if the response is insufficient (Ariz. R. Civ. P. 36(a)(7))

3. The court must award expenses incurred by the requesting party if the response is insufficient, unless certain circumstances apply (Ariz. R. Civ. P. 37(e))

Requests for Production
  • Responding
  • Propounding
1. Preserve Relevant Evidence
  • Send a litigation hold notice to your client as soon as possible (Ariz. R. Civ. P. 26(b)).
  • Instruct your client to preserve potentially relevant documents, suspend document destruction procedures, and take other steps to preserve documents.
2. Confer with Your Client
  • Discuss discovery compliance obligations, potential locations and custodians of materials, penalties for concealing or destroying information, confidentiality concerns, and available protections (Ariz. R. Civ. P. 26(b)).
3. Responding to the Document Requests
4. Review the Entire Request before Responding
  • Formulate opinions on which documents to produce and which to object to, and discuss the requests with your client.
5. Drafting the Response
6. Objections
  1. Nonexistence: The document does not exist because it was never created, lost, or destroyed according to your client's record retention policy (Ariz. R. Civ. P. 26(g)).
  2. Not in possession, custody, or control: The document is not in your client's possession, custody, or control. Mendy v. Herrod (2013) states that control does not require actual possession of the document, only that a party has the right and ability to obtain it.
  3. Beyond the scope of discovery: The requested material is beyond the scope of discovery as stated in the Arizona Rules (Ariz. R. Civ. P. 26(b)). Explain why the material requested is not reasonably calculated to lead to the discovery of admissible evidence.
  4. Vague description: The request is not described with "reasonable particularity" (Ariz. R. Civ. P. 24(b)(3)). Explain why you cannot respond with the description provided in the request.
  5. Undue burden: The request is unduly burdensome (Ariz. R. Civ. P. 26(b)(2)(B)). Identify the sources of information alleged not to be reasonably accessible and why production from each identified source would cause undue burden or cost. The court has the authority to order discovery if it finds that the benefits outweigh the costs.
  6. Privileged material: The requested material is privileged, such as attorney-client privilege or the work product doctrine (Ariz. R. Civ. P. 26(b)(6)(A)). Provide a privilege log to the requesting party as required by Ariz. R. Civ. P. 26(b)(6)(A) to enable them to assess the claim without revealing privileged information.
7. General Objections
  • Use general objections to preserve your ability to object at a later date or protect you from accusations of noncompliance, but do not rely on them as a substitute for specific and detailed objections (Ariz. R. Civ. P. 26(b)).
8. Producing Documents Despite an Objection
9. Organizing Documents to Be Produced
  • If the RFP does not specify the form or forms for ESI to be produced, the responding party must state the form or forms it intends to use.
10. Maintain a Document Production Log
  • Keep a detailed record of all documents produced, including document descriptions, dates of production, and any objections or privilege claims asserted (Ariz. R. Civ. P. 26(b)(6)(A)).
11. Supplement Responses if Necessary
  • If you discover additional responsive documents after your initial response, promptly produce them and supplement your responses as needed (Ariz. R. Civ. P. 26(g)).
12. Protective Orders
  • If certain requests may cause undue burden, annoyance, embarrassment, or expense, consider filing a motion for a protective order under Ariz. R. Civ. P. 26(c).
13. Seek Court Intervention if Necessary
  • If disputes regarding document requests cannot be resolved through negotiation with opposing counsel, consider seeking court intervention by filing a motion to compel, motion for a protective order, or other appropriate motion (Ariz. R. Civ. P. 26(c) and 37(a)(3)(B)(iv)).

1. Making Document Requests
  • Governed by Ariz. R. Civ. P. 34(a)(1)
  • Can include letters, reports, photographs, computer disks, business logs, medical slides, videotape, notes, machinery, and electronically stored information (ESI)
2. Assess Your Client's Litigation Goals and Financial Resources
  • Consider tailoring requests to cover only critical documents
  • Prepare a discovery budget
3. Tailor the Document Requests
  • Identify types of documents and information needed
  • Seek documents that may lead to admissible evidence
  • Review evidence relied upon in similar cases
4. Consider Electronic Discovery
  • Governed by Ariz. R. Civ. P. 34(a), particularly Sections 34(a)(2)(C) and 34(a)(3)(D)-(E)
  • Narrow ESI requests based on factors such as likelihood of ESI existence, intent to seek or rely on ESI, issues at stake, amount in controversy, expected importance, availability from other sources, and likelihood of ESI helping to resolve litigation
5. Applicable Rules
6. Scope of Documents and Data
  • Broad scope, including physical documents, digital files, audio/photographic/video recordings, originals and copies, digital files in native format, specific program formats, social media posts, blog entries, texts or instant messages, screenshots, correspondence, email, interoffice memoranda, meeting minutes, and handwritten notes
  • Limits set forth in Ariz. R. Civ. P. 26
7. Signature Requirement
  • No specific requirement for RFPs, but consider requesting a certification of authenticity and completeness
8. Deadline to Respond
  • Ariz. R. Civ. P. 34(a)(3)(A) allows 30 days for response, or 60 days from service of summons and complaint for a recently served defendant
9. Documents in Party's Control
10. Undue Burden
11. Strategic Considerations
  • Use requests for production in conjunction with interrogatories and depositions
  • Investigate, identify, and organize possible documents pertinent to the case
12. Drafting Document Requests
  • Include a caption and title, demand, definitions, instructions, and requests
  • Specify items with reasonable particularity, a reasonable time/place/manner for inspection, and the form(s) in which ESI should be produced (Ariz. R. Civ. P. 34)
13. Service Requirements
  • A request for production may be served on another party without leave of court (Ariz. R. Civ. P. 26(a)(3))
  • Does not need to be filed with the court
Interrogatories
  • Responding
  • Propounding
Nature and Purpose of Interrogatories
Scope of Interrogatories
Time to Respond
Serving Interrogatories
  • At least one attorney of record must sign the interrogatories to be served. Copies must be served on all parties in the case. Ariz. R. Civ. P. 33(a)(2).
Objections
  1. Predicting Testimony: Objections can be made for interrogatories that attempt to predict testimony rather than seeking the responding party's personal knowledge, as supported by Sundt v. Farley, 12 Ariz. App. 346, 347 (1970).
  2. Lack of Knowledge or Possession: If the responding party does not have knowledge or possession of the information sought, an objection can be lodged.
  3. Legal Conclusions: Objections can be made for interrogatories that call for mere legal conclusions rather than facts or contentions on mixed questions of fact and law.
  4. Undue Burden: An interrogatory that is unduly burdensome because it seeks information that is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive" can be objected to, as outlined in Ariz. R. Civ. P. 26(b)(2)(C)(i).
  5. Ample Opportunity: Objections can be made if the propounding party "has had ample opportunity to obtain the information by discovery in the action," as stated in Ariz. R. Civ. P. 26(b)(2)(C)(ii).
  6. Inaccessible ESI: The responding party can object if electronically stored information (ESI) responsive to the interrogatory is "not reasonably accessible because of undue burden or expense, including sources that are unduly burdensome or expensive to access because of the party's past good-faith operation of an electronic information system or good-faith and consistent application of a document retention policy," as specified in Ariz. R. Civ. P. 26(b)(2)(B)(i).
  7. Outside Scope: An objection can be made if the interrogatory "is outside the scope permitted by Rule 26(b)(1)," as mentioned in Ariz. R. Civ. P. 26(b)(2)(C)(iii).
Numerical Limits on Interrogatories
  • Limits are based on the discovery tier assigned to the case. Ariz. R. Civ. P. 33(a)(2).
    • Tier 1: 5 interrogatories
    • Tier 2: 10 interrogatories
    • Tier 3: 20 interrogatories
Preliminary Considerations
  • Responses: Provide any relevant nonprivileged information within knowledge or possession at the time.
  • Objections: State grounds for objecting with specificity. Ariz. R. Civ. P. 33(b)(3).
Producing Business Records
  • Allowed when the responding party allows the propounding party a reasonable opportunity to examine and copy the documents. Ariz. R. Civ. P. 33(d).
Supplementing Responses to Interrogatories
Disputes on Answers
  • Parties must first try in good faith to resolve discovery disputes. Ariz. R. Civ. P. 26(d)(2).
  • If no resolution is reached, parties must work together on a joint statement of discovery dispute.
Protective Orders
  • Can be sought if interrogatories cause "annoyance, embarrassment, oppression or undue burden or expense." Ariz. R. Civ. P. 26(c).
Electronically Stored Information (ESI)
  • Responding party may show that ESI responsive to the interrogatory is "not reasonably accessible because of undue burden or expense." Ariz. R. Civ. P. 26(b)(2)(B)(i).
Sanctions for Failing to Adhere to Rules
  • Failing to adhere to rules on supplements and corrections to interrogatory responses can result in sanctions. Ariz. R. Civ. P. 26(h).
Nature and Purpose of Interrogatories
  • Written questions served by one party on another party in a civil action (Ariz. R. Civ. P. 33(a))
  • Used to gather facts and other party's contentions about issues in the case
Scope of Interrogatories
Subject Matter of Interrogatories
Numerical Limits on Interrogatories
Discovery Tiers and Interrogatory Limits
  • Tier 1: 5 interrogatories
  • Tier 2: 10 interrogatories
  • Tier 3: 20 interrogatories
Preliminary Considerations
  • Review disclosure statements before preparing or serving interrogatories (Ariz. R. Civ. P. 26(f)(1))
  • Identify the facts or contentions you seek
  • Perform a cost-benefit analysis on interrogatories
Drafting Interrogatories
  • Use proper format and include definitions
  • Use uniform interrogatories when applicable (Ariz. R. Civ. P. 33(a)(4))
  • Draft clear and precise questions
Serving Interrogatories
Responding to Interrogatories
Dealing with Inadequate Interrogatory Responses

California Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Motions to Compel
Requests for Admission
  • Responding
  • Propounding

Deadline to Respond:
Modification of Deadline:
Effect of Failure to Timely Respond:
Duty to Provide Information:
Format and Content of Responses:
Answering the RFA:
Objections:
  1. Contains subparts, is compound, conjunctive, or disjunctive:
  2. Not self-contained:
    • RFAs must be self-contained and cannot refer to matters outside of the question, such as the complaint, an item of evidence, or deposition testimony (Cal. Code Civ. Proc. § 2033.060(d))
  3. Cumulative, duplicative, or unduly burdensome:
  4. Irrelevant information:
    • An RFA that is not relevant to the subject matter of the action, the determination of any motion in that action, or not admissible in evidence nor reasonably calculated to lead to the discovery of admissible evidence is beyond the scope of discovery (Cal. Code Civ. Proc. §§ 2017.010, 2019.030, 2033.010)
  5. Number exceeded:
    • The number of fact-related RFAs served on a specific party must not exceed the 35-request limit, unless additional RFAs are accompanied by an appropriate Declaration for Additional Discovery (Cal. Code Civ. Proc. §§ 2033.030–2033.050)
  6. Work product:
  7. Privilege:
  8. Trade secrets:
    • Trade secrets and confidential business information are generally subject to restrictions on discovery. A party may protect trade secrets or confidential business information from disclosure by seeking an order limiting discovery or a protective order preventing the discovery (Cal. Code Civ. Proc. § 2033.080(b)(4))
  9. Improper timing:
    • An RFA may be objectionable if propounded at an improper time, such as if a plaintiff propounds discovery fewer than 10 days after the earlier of service of summons on or appearance by the responding party (Cal. Code Civ. Proc. § 2033.020(a), (b), (d)) or if discovery must be completed on or before the 30th day before the date initially set for trial (Cal. Code Civ. Proc. § 2024.020)
Lack of Information:
Service of Response:
Motion to Withdraw or Amend Admission:

Purpose:
Scope:
Who may propound and respond to RFAs:
Timing:
Number of RFAs:
RFAs Paired with Form Interrogatory 17.1:
  • Common to serve RFAs with Form Interrogatory 17.1, which is part of the optional Judicial Council Form Interrogatories-General
Format:
Served, Not Filed:
Using Admissions in Court:
Deemed Admissions:
Sanctions for Failure to Admit:
Requests for Production
  • Overview
Scope:
Scope of Documents:
Included in ESI:
Possession, Custody, or Control:
Deadline to Respond:
Effect of Failure to Timely Respond:
Format and Content of Responses:
Objections:
  1. Privilege: Privileged information is beyond the scope of discovery. See Cal. Code Civ. Proc. § 2017.010. Thus, RFPs may not seek documents that are protected by a privilege, such as:
  2. Work product: Protected work product is beyond the scope of discovery. See Cal. Code Civ. Proc. §§ 2018.020 et seq., 2031.240(b)(2).
  3. Irrelevant documents: An RFP that is not relevant to either the subject matter of the action or to the determination of any motion in that action, or is not admissible in evidence nor reasonably calculated to lead to the discovery of admissible evidence, is beyond the scope of discovery. See Cal. Code Civ. Proc. § 2017.010, 2019.030, 2031.010(a).
  4. Cumulative, duplicative, or unduly burdensome: RFPs may not seek information that is unreasonably cumulative, duplicative, or burdensome. Courts are particularly sensitive to these objections when ESI is at issue. Cal. Code Civ. Proc. § 2031.310(g). The better means of asserting this type of objection is by seeking a protective order, rather than solely by objection in a written response. Cal. Code Civ. Proc. §§ 2019.030, 2031.060.
  5. ESI format: A party that propounds a request for ESI may designate the format in which the information should be produced. Cal. Code Civ. Proc. § 2031.030(a)(2). The responding party may object to production in this format; if it does or if the requesting party failed to designate a requested format, the party must specify in the response the format in which it intends to produce the material. Cal. Code Civ. Proc. § 2031.280(c).
  6. ESI not reasonably accessible: Where a request seeks ESI that is not reasonably accessible, the responding party may object. Cal. Code Civ. Proc. § 2031.210(d). Note that even if the objection is well-founded, the court may nevertheless order it produced, perhaps at the propounding party's expense. See Cal. Code Civ. Proc. § 2031.310(d)–(e).
  7. Confidentiality: Where sensitive materials, such as medical records or financial information, have been requested and should be produced, a party may object that such materials will be produced only subject to an appropriate protective order. Best practice is to also reach out to the opposing attorney before or at the time you serve the responses to negotiate a stipulated protective order.
  8. Improper timing: A set of RFPs may be objectionable if propounded at an improper time:
    • If a plaintiff propounds discovery fewer than 10 days after the earlier of service of summons on or appearance by the responding party, the responding party may object. Cal. Code Civ. Proc. § 2031.020(a)–(b).
    • Discovery must be completed on or before the 30th day before the date initially set for trial. Cal. Code Civ. Proc. § 2024.020. Discovery is considered complete on the day a response is due, and a party has 30 days to respond to RFPs (plus five additional days if the requests were served by mail). Cal. Code Civ. Proc. §§ 1013(a), 2024.010, 2031.260(a). Thus, if a party serves RFPs within 30 days before the discovery deadline, an objection is proper.
Served, Not Filed:
Production:
Privilege Log:
Motion for Protective Order:
Interrogatories
  • Overview
Deadline to Respond:
 
Modification of Deadline:
 
Effect of Failure to Timely Respond:
 
Duty to Provide Information:
 
Format and Content of Responses:
 
Objections:
  1. Contains subparts, or is compound, conjunctive, or disjunctive: Objection to interrogatories that combine several topics or questions into one (Cal. Code Civ. Proc. § 2030.060(f); Clement v. Alegre, 177 Cal. App. 4th 1277, 1291 (2009)).
  2. Not self-contained: Objection to interrogatories referring to external matters, such as the complaint or deposition testimony (Catanese v. Superior Court, 46 Cal. App. 4th 1159, 1164 (1996)).
  3. Cumulative, duplicative, or unduly burdensome: Objection to interrogatories seeking unreasonably repetitive or burdensome information (Cal. Code Civ. Proc. §§ 2019.030, 2030.090; People ex rel. Harris v. Sarpas, 225 Cal. App. 4th 1539, 1553 (2014)).
  4. Irrelevant information: Objection to interrogatories seeking information that is not relevant to the subject matter or determination of any motion in the action (Cal. Code Civ. Proc. §§ 2017.010, 2019.030, 2030.010).
  5. Number exceeded: Objection to interrogatories exceeding the 35-interrogatory limit without an appropriate Declaration for Additional Discovery (Cal. Code Civ. Proc. § 2030.030 et seq.).
  6. Premature contention interrogatories: Objection to interrogatories served before the defendant has had a reasonable opportunity to investigate the plaintiff's injuries and damages (Judicial Council Form Interrogatories-General (Form DISC-001), Sec. 2(d)).
  7. Work product: Objection to interrogatories seeking protected work product information (Cal. Code Civ. Proc. §§ 2018.020 et seq., 2030.240(b)).
  8. Privilege: Objection to interrogatories seeking privileged information (Cal. Code Civ. Proc. §§ 2017.010, 2030.010; § 2030.240(b)).
  9. Trade secrets: Objection to interrogatories seeking trade secrets or confidential business information (Cal. Code Civ. Proc. § 2030.090(b)(6)).
  10. Premature request for expert discovery: Objection to interrogatories seeking expert witness identification or opinions before the proper time (Cal. Code Civ. Proc. §§ 2034.210, 2034.220; S. Tahoe Pub. Util. Dist. v. Superior Court, 90 Cal. App. 3d 135, 138 (1979)).
  11. Purported duty to supplement or other improper instructions: Objection to interrogatories imposing a continuing duty to supplement an answer or containing special preface or instructions (Cal. Code Civ. Proc. § 2030.060(g), (d)).
  12. Improper timing: Objection to interrogatories propounded at an improper time, such as too early after service of summons or appearance (Cal. Code Civ. Proc. § 2030.020(a), (b), (d)).
 
Verification and Signature:
 
Service of Response:
 
Amended or Supplemental Answer:
Motions to Compel
  • Overview
Informal Resolution:

- Meet and confer requirements: Parties must attempt to informally resolve discovery disputes before filing a motion to compel (Cal. Code Civ. Proc. §§ 2025.450(b), 2025.480(b), 2030.300(b), 2031.310(b)).

Motion to Compel Further Response to Written Discovery:

- Incomplete, inadequate, or evasive responses: The propounding party must show that the responses received were insufficient or that objections were meritless or too general (Cal. Code Civ. Proc. §§ 2030.300 (a)(1)–(3), 2031.310(a)(1)–(3), 2033.290(a)(1)–(2)).

- Meet and confer compliance: The moving party must demonstrate that they have attempted to resolve the dispute with the responding party (Cal. Code Civ. Proc. §§ 2016.040, 2030.300(b), 2031.310(b)(2), 2033.290(b)).

- Good cause for document or ESI requests: The moving party must prove that there is a valid reason for requesting the documents or electronically stored information (ESI) (Cal. Code Civ. Proc. § 2031.310(b)(1), (e)).

- 45-day deadline to file motion: The moving party must file their motion to compel further responses within 45 days of receiving the initial responses (Cal. Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2033.290(c)).

Limitations on Production of ESI:

- Conditions for limiting ESI discovery: The court must determine if any conditions exist that warrant limiting the discovery of electronically stored information (ESI) (Cal. Civ. Proc. Code § 2031.310(g)).

- Responding party's burden of proof for inaccessible ESI: The party objecting to the production of ESI must prove that the information is not reasonably accessible due to undue burden or expense (Cal. Code Civ. Proc. § 2031.310(d)).

- Court may order production with good cause: The court can order the production of ESI even if it is not reasonably accessible if the requesting party demonstrates good cause (Cal. Code Civ. Proc. § 2031.310(e)–(g)).

Procedure for Motion to Compel Further Response to Written Discovery:

- Motion format and requirements: The motion should identify the parties, the basis for the motion, and the relief sought (Cal. Rules of Ct., Rules 3.1110(d)(1)–(3)).

- Separate statement requirements: A separate statement must be filed with the motion, providing all necessary information to understand the requests and responses at issue (Cal. Rules of Ct., Rule 3.1345(c)).

- 45-day deadline to file: The moving party must file their motion to compel further responses within 45 days of receiving the initial responses (Cal. Code Civ. Proc. §§ 2030.300(c), 2031.310(c), 2033.290(c)).

- Filing and serving motion: The motion must be filed and served at least 16 court days before the hearing, with additional time depending on the type of service and location of the person served (Cal. Code Civ. Proc. § 1005(b); Cal. Rules of Ct., Rule 3.1300(a)).

Motion to Compel Where No Response or Untimely Response Served:

- Waiver of objections: A party that fails to serve a timely response waives any objections to the request, including privilege or attorney work product protections (Cal. Code Civ. Proc. §§ 2030.290(a), 2031.300(a), 2033.280(a)).

- Relief from waiver of objections: The court may relieve a party of its waived objections if certain conditions are met (Cal. Code Civ. Proc. §§ 2030.290(a), 2031.300(a), 2033.280(a)).

- Procedure for motion to compel: The motion should identify the parties, the basis for the motion, and the relief sought (Cal. Rules of Ct., Rules 3.1110(d)(1)-(3)).

- Separate statement or authorized outline: A separate statement or concise outline of the discovery requests and responses must be filed with the motion (Cal. Code Civ. Proc. §§ 2030.300(b)(2), 2031.310(b)(3), 2033.290(b)(2)).

- Filing and serving motion: The motion must be filed and served at least 16 court days before the hearing, with additional time depending on the type of service and location of the person served (Cal. Code Civ. Proc. § 1005(b); Cal. Rules of Ct., Rule 3.1300(a)).

- Request for sanctions: The moving party may request monetary sanctions against the responding party if they are unsuccessful in the motion to compel (Cal. Code Civ. Proc. §§ 2030.300(d), 2031.310(h), 2033.290(d)).

Motion to Compel Compliance re: Request for Production:

- Requirements for motion to compel compliance: The moving party must show that the responding party has failed to produce documents, ESI, or tangible things as requested (Cal. Code Civ. Proc. § 2031.320(a)).

- Procedure for motion to compel compliance: The motion should identify the parties, the basis for the motion, and the relief sought (Cal. Rules of Ct., Rules 3.1110(d)(1)-(3)).

- Separate statement or authorized outline: A separate statement or concise outline of the discovery requests and responses must be filed with the motion (Cal. Rules of Ct., Rule 3.1345(b)(2)).

- Filing and serving motion: The motion must be filed and served at least 16 court days before the hearing, with additional time depending on the type of service and location of the person served (Cal. Code Civ. Proc. § 1005(b); Cal. Rules of Ct., Rule 3.1300(a)).

- Request for sanctions: The moving party may request monetary sanctions against the responding party if they are unsuccessful in the motion to compel (Cal. Code Civ. Proc. §§ 2030.300(d), 2031.310(h), 2033.290(d), 2031.320(c)).

Motion to Compel Response to Deposition Question or Demand:

- Requirements for motion to compel: The moving party must show that the deponent failed to answer a question or produce a document, ESI, or item as requested (Cal. Code Civ. Proc. § 2025.480(a)).

- 60-day deadline for filing: The moving party must file their motion to compel within 60 days after the completion of the record of the deposition (Cal. Code Civ. Proc. § 2025.480(b)).

- Filing and serving motion: The motion must be filed and served at least 16 court days before the hearing, with additional time depending on the type of service and location of the person served (Cal. Code Civ. Proc. § 1005(b); Cal. Rules of Ct., Rule 3.1300(a)).

- Lodging deposition excerpts before hearing: The moving party must lodge the relevant portions of the certified deposition transcript at least five days before the hearing (Cal. Code Civ. Proc. § 2025.480(h)).

- Request for sanctions: The moving party may request monetary sanctions against the responding party if they are unsuccessful in the motion to compel (Cal. Code Civ. Proc. § 2025.480(j)).

Opposition to Motion:

- Procedure for opposing motion to compel: The opposition should identify the parties, the basis for the opposition, and the relief sought (Cal. Rules of Ct., Rules 3.1110(d)(1)-(3)).

- Filing and serving opposition: The opposition must be filed and served at least nine court days before the hearing, with additional time depending on the type of service and location of the person served (Cal. Code Civ. Proc. § 1005(b); Cal. Rules of Ct., Rule 3.1300(a)).

- Obtaining relief from waiver of objections: The court may relieve a party of its waived objections if certain conditions are met (Cal. Code Civ. Proc. §§ 2030.290(a), 2031.300(a), 2033.280(a)).

- Opposing sanctions: The responding party must demonstrate that they acted with substantial justification or that the imposition of sanctions would be unjust (Cal. Code Civ. Proc. §§ 2030.290(c), 2031.300(c), 2033.280(c)).

- Affirmative request for sanctions: he responding party may request monetary sanctions against the moving party if they are unsuccessful in the motion to compel (Cal. Code Civ. Proc. §§ 2030.300(d), 2031.310(h), 2033.290(d)).

Colorado Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Notice of Deposition
Requests for Admission
  • Overview
Applicable Rules

Requests for admission are governed by C.R.C.P. 36(a), which allows a party to serve another party a request for the admission of the truth of any matters within the scope of C.R.C.P. 26(b).

Relevance

Each request for admission must pertain to a matter relevant under C.R.C.P. 26(b) (C.R.C.P. 36(a)).

Effect of Admissions

Any matter deemed admitted is conclusively established unless the court allows withdrawal or amendment (C.R.C.P. 36(b)).

Courts consider an admission to be an adequate showing for the purpose of summary judgment (Grynberg v. Karlin, 134 P.3d 563, 565 (Colo. App. 2006)).

An admission under C.R.C.P. 36 is for the purpose of the pending action and cannot be used against the party in any other proceeding (C.R.C.P. 36(b)).

The purpose of the rule is to bind the party making the admission, so the submission of a request for admission admits nothing as to the requesting party (Aspen Petroleum Prods., Inc. v. Zedan, 113 P.3d 1290, 1292 (Colo. App. 2005)).

At trial, a party may not utilize its own admissions; it is only when the admission is offered against the party opponent that it comes within the hearsay exception related to admissions of a party opponent (Aspen Petroleum Prods., Inc., 113 P.3d at 1292).

Procedure for Requesting

Each matter for which an admission is requested must be set forth separately (C.R.C.P. 36(a)).

Compound requests for admission may draw objections based on limitations set forth in the Case Management Order or proportionality.

The deadline for completion of discovery must be no later than 49 days before the trial date (C.R.C.P. 16(b)(11)). Any modification of that deadline must be set forth in the Proposed Case Management Order.

Create Issue-Fact Outlines for Ease of Use

Move logically and easily from the planning stage, centered around an issue-fact outline, to drafting the actual request (C.R.C.P. 36(a)).

Avoid compound requests; requests for admission should be phrased simply and directly so that they can be admitted or denied without explanation.

Requests Need Not to be Argumentative or Controversial

Requests for admission should be simple, clear, and concise statements of fact that can be easily admitted or denied.

Avoid asking the responding party to admit to legal conclusions, opinions, or characterizations of events.

Timing for Response

The responding party has 30 days after service of the request to serve a written response or objection (C.R.C.P. 36(a)).

If the requesting party serves the request within 49 days of the trial date, the time for response is shortened to 21 days (C.R.C.P. 16(b)(11)).

Objections

Privilege: Parties may object to RFAs that seek information protected by attorney-client privilege, work product doctrine, or other recognized privileges (C.R.C.P. 36(a)).

Privacy or legitimate expectation of non-disclosure: RFAs requesting information that intrudes on a party's privacy or legitimate expectation of non-disclosure may be objected to, as long as the objection is made in good faith and based on reasonable grounds (C.R.C.P. 36(a)).

Annoyance, embarrassment, or oppression: Parties can object to RFAs that are designed to annoy, embarrass, or oppress the responding party. Such objections must be made in good faith and based on reasonable grounds (C.R.C.P. 36(a)).

Undue hardship: If responding to an RFA would result in undue hardship for the responding party, they may object to the request on this basis, provided the objection is made in good faith and supported by reasonable grounds (C.R.C.P. 36(a)).

Proportionality: According to C.R.C.P. 26(b)(1), discovery must be proportional to the needs of the case. Parties may object to RFAs that are overly broad, unduly burdensome, or disproportionate to the importance of the issues at stake in the litigation (C.R.C.P. 36(a)).

Ultimate, disputed conclusions of fact and legal conclusions: It is improper to seek admissions on ultimate, disputed conclusions of fact or legal conclusions that are central to the dispute in the litigation. Parties may object to RFAs that request such conclusions (C.R.C.P. 36(a)).

Expert Opinion: If an RFA seeks information that should be evaluated by an expert witness, parties may object on the grounds that the request is beyond the scope of an RFA and more appropriate for expert testimony (C.R.C.P. 36(a)).

Consequences of Failing to Respond

If a party fails to respond to a request for admission within the applicable time period, the matter is deemed admitted (C.R.C.P. 36(a)).

The court may, on motion, permit the withdrawal or amendment of an admission if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining the action or defense on the merits (C.R.C.P. 36(b)).

Drafting Requests and Responses

When drafting requests for admission:

  1. Clearly and concisely state the fact or matter for which an admission is sought.
  2. Avoid compound requests, argumentative language, and requests for legal conclusions.
  3. Ensure that each request is relevant to the issues in the case.

When drafting responses to requests for admission:

  1. Admit or deny each request separately and specifically.
  2. Provide any necessary explanations or qualifications to your admission or denial.
  3. State any objections to the request and the reasons for the objection.

Content for Propounding Requests for Admission goes here.

Requests for Production
  • Responding
  • Propounding
Preserve Relevant Evidence:
  • Send a document preservation letter to your client as soon as possible (Bernardi v. Community Hospital Asso., 443 P.2d 708, 715–16 (Colo. 1968))
  • Instruct your client to preserve potentially relevant documents, suspend ordinary-course document destruction procedures, suspend ordinary-course data deletion programs, and take other related steps to preserve potentially relevant documents.
Responding to Document Requests:
  • Serve written responses to document requests within 35 days after the requests for production are served (C.R.C.P. 34(b))
  • For each requested item or category, state that your client will produce responsive documents unless you assert an objection (C.R.C.P. 34(b))
Drafting the Response:
  • Include a caption and title, general responses and objections, specific responses and objections, and a signature block in your written document request response.
Objections:

Nonexistence: If a requested document does not exist, you can object to the request. There are three possible explanations for the nonexistence of a document: it was never created, it was created but subsequently lost, or it was created but subsequently destroyed (C.R.C.P. 34(b)).

Lack of Possession: If a requested document is not in the possession, custody, or control of your client, you can object to the request. If requested in the instructions, disclose the identity of the person who does have possession, custody, or control if known (C.R.C.P. 34(b)).

Scope of Discovery: If a request is beyond the scope of discovery as set forth in C.R.C.P. 26(b), you can object to the request. Provide an explanation as to why the material requested is not within the scope of discovery as defined by the rules.

Vagueness: If a request is vague and not described with "reasonable particularity" as required by C.R.C.P. 34(b), you can object to the request. Explain why you cannot respond with the description provided in the request.

Privilege: If a requested document is privileged, you can object to the request. Explain the privilege you are relying upon, such as the attorney-client privilege (Bernardi v. Community Hospital Asso., 443 P.2d 708, 715–16 (Colo. 1968)), the work product or trial preparation privilege (A v. District Court, 550 P.2d 315, 326–27 (Colo. 1976)), the physician-patient privilege, or other privileges listed in C.R.S. § 13-90-107.

Relevance: If a requested document is irrelevant to the case, you can object to the request based on the limitations on discovery in the Case Management Order and the proportionality factors (C.R.C.P. 26(b)).

Proportionality: If a request is disproportionately burdensome, you can object to the request (C.R.C.P. 26(b)). Consider the relevance, proportionality, and potential for annoyance, embarrassment, oppression, or undue hardship when lodging this objection (Bond v. District Court, 682 P.2d 33, 37 (Colo. 1984); Judd v. Cedar St. Venture, 256 P.3d 687, 691 (Colo. 2011)).

Confidentiality: If a requested document contains confidential information, you can object to the request based on the three-part test established in Martinelli v. District Court, 612 P.2d 1083, 1091 (1980): legitimate expectation of non-disclosure, compelling state interest, and least intrusive manner of disclosure. This objection may apply to financial documents and tax returns, as demonstrated in Leidholt v. District Court, 619 P.2d 768, 771 (Colo. 1980) and Stone v. State Farm Mut. Auto. Ins. Co., 185 P.3d 150, 159 (Colo. 2008).

Making Document Requests:

- Obtain tangible evidence from opponents or other parties to the litigation (letters, reports, photographs, computer disks, medical slides, videotape, notes, machinery, etc.) (C.R.C.P. 34(a)(1))

Tailor the Document Requests:
  • Identify types of documents and information needed to prove claims, defenses, and damages
  • Identify material that may help prove or disprove material facts at issue
  • Review initial pleadings for information already disclosed and potential insight into relevant material
  • Seek documents that may not be admissible at trial if they may lead to evidence that is admissible (C.R.C.P. 26(b))
  • Review evidence relied upon in similar cases
Consider Electronic Discovery:

- Evaluate factors such as the likelihood that ESI exists, any party's intent to seek or rely on ESI, the issues at stake in the litigation, the amount in controversy versus the costs to preserve/produce ESI, the requested ESI's expected importance, the requested ESI's availability from other less costly/burdensome sources, and the likelihood that ESI will help resolve the litigation

Applicable Rules:
Types of Documents and Data:

- Physical documents, digital files, audio, photographic, and video recordings, originals and copies of documents, digital files in native format, documents and files in specific program formats, social media posts, blog entries, texts or instant messages, screen shots, correspondence and email, interoffice memoranda, meeting minutes, handwritten notes

Destructive Testing:

- Court may allow destructive testing after engaging in an inquiry that balances the needs of the case and the broad nature of the discovery rules (Cameron v. District Court, 565 P.2d 925, 929 (1977))

Compilations or Summaries:

- Producing party cannot be compelled to create compilations or summaries of information, or perform research, analysis, or investigations related to that information (Val Vu, Inc. v. Lacey, 497 P.2d 723, 726 (1972))

Coordinated with Depositions:

- Use requests for production before depositions to obtain all documents or other tangible evidence the prospective deponent created or knows something about

Investigation and Organization Prior to Serving Requests:
  • Discuss with client about documents related to the subject matter of the case
  • Review client's files and any other physical evidence related to the case
  • Review pleadings, motions, and other papers filed in the case
  • Review all discovery requests and answers, including deposition transcripts
  • Review state and federal law that mandates certain filings or recordkeeping by a party to the litigation
  • Review papers filed in similar litigation involving one of the parties to the case
  • Discuss with friendly fact witnesses about documents they have generated, received, or otherwise known about
  • Discuss with expert consultant concerning technical, scientific, or other documents a party should or might have in its possession
Drafting Document Requests:
  • Include a caption and title, a demand, definitions, instructions, and requests
  • Specify the time, place, and manner of the production or inspection in the demand
  • Include definitions of key terms or abbreviations that will aid the responding party
  • Include instructions delineating how the responding party should answer each request
  • Detail each request in a separately numbered paragraph, describing each item and category with reasonable particularity (C.R.C.P. 34(b))
Timing:
  • Make requests for production as soon as practicable (C.R.C.P. 34(b))
  • Deadline for compilation of discovery shall be no later than 49 days before the trial date (C.R.C.P. 16(b)(11))
Interrogatories
  • Responding
  • Propounding
Applicable Rules:
Proportionality Factors (C.R.C.P. 26(b)(1)):
  1. Importance of the issues at stake in the litigation
  2. Amount in controversy
  3. Parties' relative access to relevant information
  4. Parties' resources
  5. Importance of the discovery in resolving the issues
  6. Whether the burden or expense of the proposed discovery outweighs its likely benefit
Timing:
  • Interrogatories may not be served before the court issues the Case Management Order (C.R.C.P. 33(a); C.R.C.P. 26(d))
  • Must be served at least 35 days prior to the discovery cutoff identified in the Case Management Order (C.R.C.P. 33(b)(3))
Presumptive Limits (C.R.C.P. 26(b)(2)(B)):
  • 30 written interrogatories, each consisting of a single question
Responding to Interrogatories:
  • Respond in writing within 35 days of receipt (C.R.C.P. 33(a) and C.R.C.P. 33(b)(3))
  • Answer each interrogatory separately and fully, state any objections with reasonable particularity, and follow the question to which it responds (C.R.C.P. 33(b)(1))
  • Responses must be signed by the person providing answers and the attorney inserting objections (C.R.C.P. 33(b)(2))
Answering Interrogatories:
  • Answer fully and truthfully under oath (C.R.C.P. 33(a))
  • Failure to provide information responsive to proper interrogatories can result in a bar to presenting that evidence at trial (C.R.C.P. 37)
Objections to Interrogatories:
  • State objections with specificity (C.R.C.P. 33(b)(1))
  • When objecting on grounds of privilege or work product, describe the nature of the documents, communications, or things not produced in a manner that enables other parties to assess the applicability of the privilege or protection (C.R.C.P. 26(b)(5))
  • All objections must be made within the time allowed for responses: 35 days from the date of receipt or within any such longer or shorter time period ordered by the court or agreed to by the parties (C.R.C.P. 33(a))
  • Any objection not timely made is waived (C.R.C.P. 33(b)(4))
Objections:
  1. Vagueness and Ambiguity: Interrogatory with undefined or unclear terms or requests (C.R.C.P. 33(b)(1)). State which part is objectionable and why, then answer to the extent possible.
  2. Irrelevance: Interrogatory seeking information not material or not likely to lead to relevant information (Wal-Mart Stores, Inc. v. Crossgrove, 276 P.3d 562 (Colo. 2012)). Support objection with citation to legal authority.
  3. Overbreadth: Interrogatory with indefinite time period or general information likely irrelevant to the dispute (C.R.C.P. 33(b)(1)). Explain why it is overly broad and provide responsive information.
  4. Undue Burden: Interrogatory requiring significant time/resources for minor importance, disproportionate to the case's needs (C.R.C.P. 26(b)(1)).
  5. Prematurity: Interrogatory seeking information not yet due under Rules of Civil Procedure (C.R.C.P. 16(b)(13); C.R.C.P. 26(a)(2)).
  6. Privilege and Work Product: Interrogatory seeking information protected by attorney-client privilege or work product (C.R.C.P. 26(b)(3); C.R.C.P. 26(b)(5)). State objection expressly and describe the nature of withheld documents without revealing privileged or protected information.
Improper Objections:
  • No foundation in the rules or applicable case law
  • Not stated with specificity
  • Not timely
Sanctions for improper objections or failure to comply with discovery rules and court orders (C.R.C.P. 37):
  • Monetary penalties
  • Waiver of objections and/or privileges
  • Adverse jury instructions
  • Dismissal of claims
  • Default judgment
Applicable Rules:
Proportionality Factors (C.R.C.P. 26(b)(1)):
  1. Importance of the issues at stake.
  2. Amount in controversy.
  3. Parties' relative access to relevant information.
  4. Parties' resources.
  5. Importance of the discovery in resolving the issues.
  6. Whether the burden or expense of the proposed discovery outweighs its likely benefit.
Timing:
  • Interrogatories may not be served before the court issues the Case Management Order (C.R.C.P. 33(a); C.R.C.P. 26(d)).
  • Must be served at least 35 days prior to the discovery cutoff identified in the Case Management Order (C.R.C.P. 33(b)(3)).
Presumptive Limits:
Information to Request:
  • Interrogatories should uncover facts and gather information about critical issues in the case before deposition.
Whom to Ask:
  • Limited to parties in the case (C.R.C.P. 45).
  • Can be served on individuals or entities/organizations.
When to Ask:
  • Generally useful to serve interrogatories prior to taking depositions.
What to Ask:
  • Fact interrogatories: seek facts.
  • Contention interrogatories: seek answers, opinions, or contentions related to facts or the application of law to facts (C.R.C.P. 33(c)).
Instructions and Definitions:
Pattern Interrogatories:
Non-pattern Interrogatories:
Blockbuster Interrogatories:
  • Seek all facts or documents underlying all or many of the answering party's claims or defenses.
  • May be permissible in state court but should be avoided due to potential objections and disproportionality.
Notice of Deposition
  • Overview
1. Applicable Rules: C.R.C.P. 30 (depositions) and C.R.C.P. 26 (discovery limits)
2. Basic Information to Include in the Notice:
  1. Name and address of the party to be deposed (C.R.C.P. 30(b)(1))
  2. Time and location of the deposition (C.R.C.P. 30(b)(1))
  3. Manner of recording the deposition if by other than stenographic means (C.R.C.P. 30(b)(2))
  4. Request for documents to be produced at the deposition, if applicable (C.R.C.P. 30(b)(1))
3. Time and Place Issues for Scheduling the Deposition:
  1. Depositions must be noticed at a reasonable time and place (C.R.C.P. 30(b)(1))
  2. Consider deposing a corporation representative at their corporate offices (C.R.C.P. 30(b)(6))
4. Deposition Notices in 30(b)(6) Cases:
  1. Address the notice to the corporation itself, not an individual employee (C.R.C.P. 30(b)(6))
  2. Provide a description of the deposition subjects with reasonable particularity (C.R.C.P. 30(b)(6))
  3. The organization must designate one or more persons to testify on its behalf (C.R.C.P. 30(b)(6))
5. Serving the Notice:
  1. Serve the notice on all parties in the case (C.R.C.P. 30(b)(1))
  2. Make service on the attorneys for represented parties; unrepresented parties should be served directly

Remember to:

  • Determine whom to depose well in advance, considering the discovery limits set forth in the case management order (C.R.C.P. 26(b)(2)(A))
  • Obtain the agreement of opposing counsel for the witness to appear at the designated time and place, if taking the deposition of an opposing party or an agent/employee of the opposing party
  • Secure the attendance of nonparty witnesses either by a waiver of service or service of a subpoena under C.R.C.P. 45
  • Be prepared to make a record as to the efficiency of obtaining records during the deposition, compared to reconvening the deposition once the records are obtained
  • Consider using a videotaped deposition, as it can be used by an adverse party "for any purpose" at trial (C.R.C.P. 32(a)(2)) and may be used in lieu of reading the transcript if the witness is not available at trial (C.R.C.P. 32(a)(3))
  • If seeking to limit attendance at a deposition, file a motion for protective order under C.R.C.P. 26(c)(5) before the deposition is taken

Connecticut Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
Requests for Admission
  • Overview
Nature and Purpose of RFA

Secure admission of facts about which there is no real dispute (E. Haven Builders Supply v. Fanton, 80 Conn. App. 734, 744 (2004))

Limit areas of controversy and save time, energy, and expense (Conn. Practice Book § 13-22(a))

Effect of Admissions

Matters admitted are deemed conclusively established unless the court permits amendment or withdrawal (Conn. Practice Book § 13-24(a); Bank of Am., N.A. v. Kydes, 183 Conn. App. 479, 488 (2018))

Admissions are effective only for the pending action and not binding for other purposes or proceedings (Conn. Practice Book § 13-24(a); § 13-22(a))

Proper Subjects of RFAs

Statement of fact, opinion on a matter of fact, application of law to fact, or existence, due execution, and genuineness of a document (Conn. Practice Book § 13-22(a))

Matters relevant to the subject matter of the pending action (Conn. Practice Book § 13-22(a))

Preparing RFAs

Timing: RFAs may be served on any party at any time after the return day (Conn. Practice Book § 13-22(a))

Format: RFAs must be made in writing and separately set forth each matter for which an admission is requested (Conn. Practice Book § 13-22(a))

Serving and Filing RFAs

Serve RFAs on the responding party in accordance with Conn. Practice Book §§ 10-12–10-17 (Conn. Practice Book § 13-22(a))

File a notice with the court stating that the requesting party has served an RFA on another party (Conn. Practice Book § 13-22(b))

Responding to RFAs

Time for Response: Serve a written answer or objection within 30 days after the requesting party's filing of the notice under Conn. Practice Book § 13-22(b) (Conn. Practice Book § 13-23(a))

Options for Responding: Admit the matter, deny the matter, explain reasons for not admitting or denying, or object to the request (Conn. Practice Book § 13-23(a))

Objections
  1. Improper format of request: An objection may be based on noncompliance with format requirements, such as each matter on which an admission is requested being set forth separately (Conn. Practice Book § 13-22(a)).
  2. Untimely request: An objection may be based on the propounding party's service of the RFAs in violation of applicable time constraints or discovery cut-off dates established by a scheduling order, if any.
  3. Undue burden: Objection may arise if requests are repetitive, voluminous, convoluted, vague, or ambiguous, or require extensive analysis or explanation, potentially causing undue burden or expense (Conn. Practice Book § 13-5; Fed. R. Civ. P. 36(a), Committee Note of 1970).
  4. Improper subject of request: RFAs are limited to statements or opinions of fact or the application of law to fact, including the genuineness of documents (Conn. Practice Book § 13-22(a)). Requests seeking admission on other matters, such as subjective state of mind or legal conclusions, are potentially objectionable (Creed v. Peachtree, LP, 2010 Ct. Sup. 9394, 49 CLR 724 (Conn. Super. Ct. 2010).
  5. Request outside the scope of discovery or seeks privileged matter: RFAs are limited to matters relevant to the subject matter of the action (Conn. Practice Book § 13-22(a)). Objections may arise if a request is outside the permissible scope of discovery or seeks privileged matter (Conn. Practice Book § 13-2).
  6. Failure to provide document: An objection may be based on the propounding party's failure to serve a document whose genuineness is the subject of the request, if the document has not already been produced or is not otherwise available to the responding party (Conn. Practice Book § 13-22(a)).
Motion to Determine Sufficiency of Answers or Objections

Requesting party may move to determine the sufficiency of the responding party's answer or objection (Conn. Practice Book § 13-23(b))

Motion for Withdrawal or Amendment of Admission

Court may permit withdrawal or amendment of the admission if presentation of the merits of the action will be subserved and the party who obtained the admission fails to show prejudice (Conn. Practice Book § 13-24(a))

Motion for Expenses Incurred in Proving Matter Not Admitted

Requesting party may move for an order requiring the responding party to pay the reasonable expenses, including attorney's fees, incurred in proving the matter not admitted (Conn. Practice Book § 13-25)

Content for Propounding Requests for Admission goes here.

Requests for Production
  • Responding
  • Propounding
1. Timing/Deadlines:
2. Scope:
3. Limitations:
4. Formatting:
  • Written response should include a caption and comply with general format requirements for court documents (Conn. Practice Book § 4-1)
  • Set forth each RFP followed by the response, stating if inspection and related activities will be permitted as requested (Conn. Practice Book § 13-10(b))
  • Objections should include a caption, set forth each RFP objected to, specifically state the reasons for the objection, and state if any responsive information is being withheld (Conn. Practice Book § 13-10(f))
  • If withholding materials based on privilege or work product, serve a privilege log containing specified information (Conn. Practice Book §§ 13-3(d), 13-10(g))
5. Objections
  • Improper Use of Nonstandard RFPs: In certain types of cases, RFPs are limited to mandatory forms set forth in the Appendix of Forms to the Connecticut Practice Book (Conn. Practice Book § 13-9(a)). If the opposing party serves nonstandard RFPs without court permission, you may object to those RFPs.
  • RFPs Exceed Permissible Scope of Discovery – Relevance and Privilege: RFPs may not seek materials that are outside the permissible scope of discovery (Conn. Practice Book § 13-9(a)). The responding party may object to RFPs that request production of materials that are not material to the subject matter of the action, privileged, or protected work product (Conn. Practice Book §§ 13-2, 13-3(a)).
  • Materials Sought Are Not within Responding Party's Possession, Custody, or Control: The responding party is not obligated to produce documents that are not within their possession, custody, or control (Conn. Practice Book § 13-9(a)).
  • RFPs Are Unduly Burdensome: A responding party may seek protection from discovery requests that are unduly burdensome or expensive to respond to (Conn. Practice Book § 13-5). If an RFP requests materials that would be unduly burdensome or expensive for the client to produce, objections can be filed on that basis (Conn. Practice Book § 13-10(a)(3), (e), (f)).
  • RFPs Are Overbroad; Materials Not Described with Particularity: RFPs must clearly designate the items to be inspected either individually or by category (Conn. Practice Book § 13-10(d)). The responding party may object if an RFP is overly general or insufficiently clear or specific to enable them to determine what materials are to be produced.
  • Potentially Destructive Testing Requested: In some cases, a requesting party may request to perform testing on a tangible item that could damage or destroy the item. Destructive testing is in the discretion of the trial court.
Nature and Purpose of RFPs

RFPs are discovery devices allowing a party to request documents and tangible items from another party (Conn. Practice Book § 13-9(a))

RFPs are not appropriate for nonparties; use subpoenas instead (Kolashuk v. Hatch, 195 Conn. App. 131, 152–54 (2020); Bank of N.Y. v. Bell, 142 Conn. App. 125, 133–34 (2013); Conn. Practice Book § 13-28(c))

Scope of Discoverable Documents and Tangible Things

RFPs may request "documents" or "tangible things" within the scope of discovery (Conn. Practice Book § 13-9)

"Document" includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations (Conn. Practice Book § 13-1(c)(2))

"Tangible things" refer to relevant items that are not documents

Scope limitations: RFPs must be within the scope of discovery permitted by Conn. Practice Book §§ 13-2–13-5

Timing Considerations

RFPs may be served after the return date without leave of court (Conn. Practice Book § 13-9(c))

Frequency of use of RFPs is not limited (Conn. Practice Book § 13-9(d))

Consider discovery cutoff dates and allowing extra time between the expected response date and the discovery cutoff date

Preparing RFPs

No express numerical limits on the number of RFPs (Conn. Practice Book § 13-9(d))

Format requirements: comply with general format requirements (Conn. Practice Book § 4-1)

Use mandatory form RFPs in certain cases (Conn. Practice Book § 13-9(a))

Drafting nonstandard RFPs: clearly designate items to be inspected and specify preferred format for ESI (Conn. Practice Book § 13-9(d) and (e))

Use of definitions and instructions: follow restrictions in Conn. Practice Book § 13-1(b)–(d) and § 13-9(g)

Signature requirement: RFPs must be signed by an attorney of record or the requesting party (Conn. Practice Book § 4-2(a) and (b))

Serving and Filing RFPs

Serve RFPs on responding party and all other parties who have appeared in the action (Conn. Practice Book § 13-9(a) and § 10-12(a))

Do not file RFPs with the court (Conn. Practice Book § 13-9(f))

Addressing Objections or Inadequate Response to RFPs

Responding party must file a written objection with the court (Conn. Practice Book § 13-10(e), (f), (g))

Attempt to resolve disagreements without involving the court (Conn. Practice Book § 13-10(i))

If the opposing party fails to respond, move the court for sanctions (Conn. Practice Book §§ 13-10(k), 13-14(a), (c))

When Forms Required:
  1. Personal injury actions alleging liability based on the operation or ownership of a motor vehicle:
    • Form 204 (plaintiff's RFPs)
    • Form 205 (defendant's RFPs)
    (Conn. Practice Book § 13-9(a))
  2. Personal injury actions alleging liability based on the ownership, maintenance, or control of real property:
    • Form 206 (plaintiff's RFPs—premises liability)
    • Form 205 (defendant's RFPs)
    (Conn. Practice Book § 13-9(a))
  3. Actions claiming a loss of consortium:
    • Form 205 (defendant's RFPs)
    (Conn. Practice Book § 13-9(a))
  4. Actions for uninsured/underinsured motorist coverage benefits:
    • Form 215 (plaintiff's RFPs—uninsured/underinsured motorist cases)
    • Form 216 (defendant's RFPs—uninsured/underinsured motorist cases)
    (Conn. Practice Book § 13-9(a))
  5. Actions involving a claim for workers' compensation benefits:
    • Form 209 (plaintiff's RFPs)
    • Form 211 (defendant's RFPs)
    (Conn. Practice Book § 13-9(a))
  6. Medical negligence cases:
    • Form 210 (plaintiff's RFPs)
    • Form 222 (defendant's RFPs)
    • Form 223 (defendant's RFPs)
    (Conn. Practice Book § 13-9(a))

If a complaint includes some counts that fall under the types specified by Conn. Practice Book § 13-9(a) and some that do not, the mandatory form RFPs are required only for the counts covered by Conn. Practice Book § 13-9(a). For other counts, parties are free to draft and serve their own RFPs.

Interrogatories
  • Responding
  • Propounding
Who Will Respond

- Individual party or an agent, employee, officer, or director of an entity (Conn. Practice Book § 13-1(a)(2))

What Information Must Be Provided

- Relevant, non-privileged information within the party's knowledge or possession (Conn. Practice Book § 13-2)

Deadline to Respond

- 60 days after the date of certification of service of the interrogatories (Conn. Practice Book § 13-7(a))

Conference Requirement

- Bona fide attempts to resolve differences before filing an objection (Conn. Practice Book § 13-8(c))

Improper Use of Nonstandard Interrogatories

Objection: May object if nonstandard interrogatories are served without court permission in specific types of cases (Conn. Practice Book § 13-6(b))

Interrogatories Exceed Permissible Scope of Discovery

Objection: May object if interrogatories concern matters that are not material, privileged, or protected work product (Conn. Practice Book §§ 13-2, 13-3(a))

Information Sought Is Not within Responding Party's Knowledge or Possession

Objection: May object if information is not within the responding party's knowledge or possession (Conn. Practice Book §§ 13-1(a)(2), 13-2, 13-6(a))

Interrogatories Are Unduly Burdensome

Objection: May object if interrogatories are unduly burdensome or expensive to respond to (Conn. Practice Book § 13-5)

Interrogatories Call for Legal Conclusions

Objection: May object if interrogatories call for legal conclusions unrelated to the facts of the case (e.g., Thomas v. Cate, 715 F. Supp. 2d 1012, 1029–30 (E.D. Cal. 2010))

Preparing Written Answers and Objections

- Format requirements: repeat interrogatory before each answer (Conn. Practice Book § 13-7(b)(1))
- Signing and verification: answers signed under oath by the party or person answering, objections signed by the attorney (Conn. Practice Book §§ 13-7(a), (b)(2), 13-8(a))

Serving and Filing Answers and Objections

- Serve answers on propounding party and all other parties who have appeared (Conn. Practice Book §§ 10-12(a), 13-7(a))
- File objections with the court and serve on all parties who have appeared (Conn. Practice Book §§ 10-12(a), 13-8(a))

Hearing on Objections

- Objecting party must answer the interrogatory within 20 days after the court's ruling if the objection is overruled (Conn. Practice Book § 13-8(c))

Supplementing Interrogatory Answers

- Responding party must promptly notify, file, and serve a supplemental or corrected response if new or incorrect information is discovered (Conn. Practice Book § 13-15)

Objections Based on Form and Clarity

Objection: May object if interrogatories are poorly drafted, incomprehensible, or impermissibly compound (e.g., United States ex. rel. Connell v. Chapman Univ., 245 F.R.D. 646, 649 (C.D. Cal. 2007))

Use of Standard Form Interrogatories

- Must use specified mandatory forms in certain types of cases (Conn. Practice Book § 13-6(b))
- Cannot object to standard form interrogatories if served in appropriate cases (Conn. Practice Book § 13-8(a))

Privilege Log Requirements

- Must serve a privilege log if withholding information based on privilege or work product protection (Conn. Practice Book §§ 13-3(d), 13-8(b))

Extension of Response Deadline

- Deadline may be extended by a written stipulation of the parties or by order of the court (Conn. Practice Book § 13-7(a)(1), (2))

Motion for Protective Order

- Consider moving for a protective order if interrogatory raises issues likely to arise again during discovery (Conn. Practice Book § 13-5)

Additional Requirements for Objections within Six Months of Trial Date

- File a Request for Adjudication of Discovery or Deposition Dispute (form JD-CV-119) if objections are filed within six months of the assigned trial date (Civil Matters – Statewide Standing Orders, Discovery and Deposition Dispute Order)

Sanctions for Failure to Comply with Discovery Rules

- Failure to comply with the duty to supplement or correct prior responses, or other discovery rules, can result in the imposition of sanctions by the court (Conn. Practice Book § 13-14(a))

Cooperation Between Attorneys and Clients

- Both the client and the attorney must be involved in the preparation of the written response to interrogatories (Conn. Practice Book §§ 13-7(a), 13-8(a))

Electronic Filing and Service

- Attorneys must electronically file their objections through the state's e-filing system, unless they have obtained an exemption (Conn. Practice Book § 4-4)
- Unrepresented parties may e-file objections, but are not required to
- If a party has consented in writing to electronic service, they may be served by email (Conn. Practice Book § 10-13)

Importance of Specificity in Objections

- Avoid general or "boilerplate" objections; specify the reasons for each objection (Conn. Practice Book § 13-8(a))

Amending Answers and Objections

- Responding party may need to amend their answers or objections if new information or changes in circumstances arise (Conn. Practice Book § 13-15)

Nature and Purpose of Interrogatories
Preliminary Considerations When Preparing Interrogatories
Use of Mandatory Form Interrogatories in Certain Cases
General Drafting Standards
Serving and Filing Interrogatories
Addressing Objections or Inadequate Response to Interrogatories

D.C. Discovery Cheat Sheet

  • Requests for Production
  • Interrogatories
Requests for Production
  • Responding
  • Propounding
Preservation
  • Send litigation hold notice immediately
  • Preserve documents in original form
  • Suspend document destruction procedures
  • Preserve electronic data (D.C. Super. Ct. Civ. R. 37(e))
Scope
  • Explore available matters Townsend v. Donaldson, 933 A.2d 282)
  • Nonprivileged matter relevant to claims or defenses (D.C. Super. Ct. Civ. R. 26(b)(1))
  • Proportional to the needs of the case
Deadlines
Client
  • Discuss discovery compliance obligations
  • Identify potential locations and custodians of materials
  • Address penalties for concealing or destroying information
  • Discuss confidentiality concerns and protections (D.C. Super. Ct. Civ. R. 26(c)(1))
Response
Objections
  1. Nonexistence

    If a document does not exist, you may object to the request. There are three possible explanations for the nonexistence of a document: it was never created, it was created but subsequently lost, or it was created but subsequently destroyed. In cases where the document was lost or destroyed, describe the efforts made to find the document or your client's record retention policy.

  2. Not in Possession, Custody, or Control

    A party who does not have possession, custody, or control of the tangible things sought in the request for production may object to the request on that basis (D.C. Super. Ct. Civ. R. 34(a)(1)). If the requested documents are in the possession of a party's attorney, they are considered within the party's control and custody under this rule.

  3. Beyond the Scope of Discovery

    If the requested material is not reasonably calculated to lead to the discovery of admissible evidence, you may object to the request as being beyond the scope of discovery (D.C. Super. Ct. Civ. R. 26(b)). Matters that are privileged are not subject to inquiry through document requests (D.C. Super. Ct. Civ. R. 26(b)(1)).

  4. Lacking Reasonable Particularity

    If a request is vague and not described with "reasonable particularity," you may object to the request, explaining why you cannot respond with the description provided in the request (D.C. Super. Ct. Civ. R. 34(b)(1)(A)).

  5. Unduly Burdensome

    A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost (D.C. Super. Ct. Civ. R. 26(b)(2)(B)). If you believe a request is truly unduly burdensome and you resolve the issue with the requesting party's counsel, you may file a motion for a protective order to limit the scope of discovery and ensure the parties use discovery properly (D.C. Super. Ct. Civ. R. 26(c)(1)).

  6. Privileged Material

    If the requested material is privileged, such as attorney-client privileged information or work product prepared in anticipation of litigation, you may object to the request. When objecting on the basis of attorney-client privilege or the work product doctrine, D.C. Super. Ct. Civ. R. 26(b)(5)(A) requires that you provide a privilege log to the requesting party. That log must "describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim" (D.C. Super. Ct. Civ. R. 26(b)(5)(A)).

Production
Motion Practice
Serving Responses
Making Document Requests:
Procedure:
Deadline to Respond:
Improper Responses:
  • Common objections include work product immunity and attorney-client privilege
  • Motion to compel discovery can be made under D.C. Super. Ct. Civ. R. 37 if a party fails to adequately respond
Discovery of Electronic Evidence:
  • Consider scheduling a pretrial discovery conference for cases involving substantial electronic discovery
Timing:
Investigation and Organization prior to Serving Requests:
  • Identify and organize possible documents pertinent to the case
  • Review client's files, pleadings, motions, other papers filed in the case, discovery requests and answers, state and federal law, and papers filed in similar litigation
  • Discuss with friendly fact witnesses and expert consultants
Drafting Document Requests:
Scope:
  • Requests must fall within the scope of Rule 26(b) (D.C. Super. Ct. Civ. R. 34(a))
  • Avoid broad and general requests; use specific and precise language
Service Requirements:
Interrogatories
  • Responding
  • Propounding
Purpose of Interrogatories:

Interrogatories are written questions propounded by one party to another, relating to any matter relevant to the claims and defenses of any party (D.C. Super. Ct. Civ. R. 33(b)).

Protective Orders:

A court may enter a protective order to limit the scope of discovery and protect parties from annoyance, embarrassment, oppression, or undue burden or expense (D.C. Super. Ct. Civ. R. 26(c)(1)).

Applicable Rules:

Interrogatories must be answered by the party to whom they are directed (D.C. Super. Ct. Civ. R. 33(b)(1)(A)), and each interrogatory must be answered separately and fully in writing under oath (D.C. Super. Ct. Civ. R. 33(b)(3)).

Timing for Response:

Answers to interrogatories must be served within 30 days of the service of the interrogatories, unless the court orders otherwise (D.C. Super. Ct. Civ. R. 33(b)(2)).

Number of Interrogatories Allowed:

The total number of interrogatories that may be propounded by a party is limited to 40, including all discrete subparts, except with leave of court or by agreement of the answering party (D.C. Super. Ct. Civ. R. 33(a)(1)).

Answering with Business Records:

A party may produce business records in lieu of answering an interrogatory, as long as the records are specified in sufficient detail and the interrogating party is given a reasonable opportunity to examine and audit the records (D.C. Super. Ct. Civ. R. 33(d)).

Signing Requirement:

The person who makes the answers must sign them, and an attorney who objects must sign any objections (D.C. Super. Ct. Civ. R. 33(b)(5)).

Scope of Interrogatories:

Interrogatories are limited to the bounds of inquiry delineated under Rule 26 and may relate to any matter that may be inquired into under Rule 26(b) (D.C. Super. Ct. Civ. R. 33(a)(2)).

Proper Objections:

Objections to interrogatories must be stated with specificity, and the grounds for objection must be set out in the space following the interrogatory served or the restated interrogatory prepared by the responding party (D.C. Super. Ct. Civ. R. 33(b)(4)).

Drafting the Response:

When drafting interrogatory responses, you must separately answer each interrogatory, provide specific reasons for any objections, and identify whether your objection pertains to all or part of the interrogatory (D.C. Super. Ct. Civ. R. 33(b)(3)).

Service Requirements:

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories, or within 45 days after service of the summons and complaint on that defendant (D.C. Super. Ct. Civ. R. 33(b)(2)).

Purpose of Interrogatories:

- Disclosure device used in civil litigation (D.C. Super. Ct. Civ. R. 33(a)(1))

Who may serve interrogatories:

- Any party may serve written interrogatories upon any other party after the commencement of suit without leave of court (D.C. Super. Ct. Civ. R. 33(a)(1))

Applicable Rules:
Formatting Requests:

- Electronic version of interrogatories must be provided upon request (D.C. Super. Ct. Civ. R. 33(a)(3))

Number of Interrogatories Allowed:

- Limited to 40, including all discrete subparts, except with leave of court or by agreement of the answering party (D.C. Super. Ct. Civ. R. 33(a)(1))

Answering with Business Records:

- A party may produce records in lieu of answering an interrogatory, but must be the "business records" of the party answering the interrogatories (D.C. Super. Ct. Civ. R. 33(d))

Scope of Interrogatories:
Drafting Interrogatories:
  • - Review D.C. Super. Ct. Civ. R. 26 for scope and limitations
  • - Progress from general to specific questions
  • - Ensure interrogatories are comprehensible and do not request privileged or irrelevant information
  • - Proofread for accuracy and adhere to deadlines set by scheduling orders
Service Requirements:

Federal Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Notice of Depositions
  • Subpoenas
Requests for Admission
  • Responding
  • Propounding
Responding

Purpose: Expedite trials by establishing agreed-upon material facts (Armour v. Knowles, 512 F.3d 147, 154 n.13)
Deadline: 30 days after receiving requests (Fed. R. Civ. P. 36(a)(3))
Consequence of failure: Requested matter deemed admitted (Batyukova v. Doege, 994 F.3d 717, 724)

Objections:
  1. Relevance: A party may object to a request on the grounds that the requested information is not relevant to any party's claim or defense, and therefore beyond the scope of permissible discovery (Fed. R. Civ. P. 26(b)(1)).
  2. Work Product: If the requested documents or information constitute work product, the responding party may object to their production (Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); Fed. R. Civ. P. 26(b)(3)).
  3. Privacy: A privacy objection can be raised if the requested information infringes on a party's right to privacy, such as when the request seeks personal or confidential information without a compelling reason (Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995)).
  4. Overbreadth: A party may object to a request as being overly broad if it seeks an excessive amount or an unreasonably large scope of information, making it unduly burdensome to comply with (>Doe v. United States, 112 F.R.D. 183, 187 (S.D.N.Y. 1986)).
  5. Privilege: If the requested documents or information are protected by a recognized legal privilege, such as attorney-client privilege or the physician-patient privilege, the responding party may object to their production (Fed. R. Civ. P. 26(b)(1); Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
Inquiry

Duty: Conduct reasonable inquiry into factual basis of responses (A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189)
Cannot refuse based on lack of personal knowledge if information reasonably available (Asea, Inc. v. S. Pac. Transp. Co., 669 F.2d 1242, 1245)
Similar duty to answering interrogatories (FDIC v. Halpern, 271 F.R.D. 191, 193)

Deadlines
  • Send RFAs to client promptly
  • Schedule meeting to discuss responses
  • Ensure client understands obligations and consequences
Supplementing

Duty: Supplement or correct responses if ordered by court or if new information is discovered (Fed. R. Civ. P. 26(e))
Amending response: Serve on other parties or obtain court order if original response is an admission (Fed. R. Civ. P. 36(b); Foss v. Marvic Inc., 994 F.3d 57, 63)

Sufficiency

Judicial determination: Requesting party may move for determination of sufficiency (Fed. R. Civ. P. 36(a)(6))
Not for testing accuracy of denials (Fed. R. Civ. P. 36(a)(4), (6); Marchand v. Mercy Med. Ctr., 22 F.3d 933, 937–38)

Remedies

Insufficient response: Court may order answer served, matter admitted, or amended answer served (Fed. R. Civ. P. 36(a)(6))
Award of expenses, including attorney's fees (Fed. R. Civ. P. 36(a)(6), 37(a)(5))
Sanctions for violation of certification requirements (Fed. R. Civ. P. 26(g)(3))

Amending

Court approval: Leave of court required for withdrawal or amendment (Rule 36(b))
Formal motion: Split among courts on necessity (In re Carney, 258 F.3d 415, 419–20; Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1059; Stine Seed Co. v. A & W Agribusiness, LLC, 862 F.3d 1094, 1102)

Relief

Criteria: Promotes presentation of merits and does not prejudice requesting party (Fed. R. Civ. P. 36(b))
Examples of sufficient and insufficient prejudice (Conlon v. United States, 474 F.3d 616, 622; Sonoda v. Cabrera, 255 F.3d 1035, 1039; 999 v. C.I.T. Corp., 776 F.2d 866)

Sanctions

Failure to admit genuine document or true matter: Sanctions mandatory unless safe harbor exceptions apply (Fed. R. Civ. P. 37(c)(2); Netlist Inc. v. Samsung Elecs. Co., 341 F.R.D. 650, 661)
Recoverable expenses: Directly resulting from improper answers to denied requests (Marchand v. Mercy Med. Ctr., 22 F.3d 933, 939)

Requests for Admission (RFAs)
Binding Effect
Deadlines
Scope of Requests
Format
Combining with Other Discovery Devices
  • Interrogatories
  • Requests for production
  • Streamline discovery process
Court Use
Sanctions for Failure to Admit
Requests for Production
  • Responding
  • Propounding
Rule 34
  • Inspection, copying, testing, or sampling of documents, electronically stored information (ESI), and tangible things
  • Entry onto designated land or property for inspection, measurement, surveying, photographing, testing, or sampling
Requirements
Proportionality
  • Rule 26(b) requires consideration of:
    • Importance of the issues at stake
    • Amount in controversy
    • Parties' relative access to relevant information
    • Parties' resources
    • Importance of the discovery in resolving the issues
    • Whether the burden or expense of the proposed discovery outweighs its likely benefit (Fed. R. Civ. P. 26(b)(1))
Preservation
Deadlines
Format and Content
Objections
  • Relevance: A party may object to a request on the grounds that the requested information is not relevant to any party's claim or defense, and therefore beyond the scope of permissible discovery (Fed. R. Civ. P. 26(b)(1)).
  • Work Product: If the requested documents or information constitute work product, the responding party may object to their production (Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); Fed. R. Civ. P. 26(b)(3)).
  • Privacy: A privacy objection can be raised if the requested information infringes on a party's right to privacy, such as when the request seeks personal or confidential information without a compelling reason (Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995)).
  • Overbreadth: A party may object to a request as being overly broad if it seeks an excessive amount or an unreasonably large scope of information, making it unduly burdensome to comply with (Doe v. United States, 112 F.R.D. 183, 187 (S.D.N.Y. 1986)).
  • Privilege: If the requested documents or information are protected by a recognized legal privilege, such as attorney-client privilege or the physician-patient privilege, the responding party may object to their production (Fed. R. Civ. P. 26(b)(1); Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
Privilege Log
  • Withholding party must prepare a privilege log that describes the nature of the documents, communications, or tangible things not produced or disclosed (Fed. R. Civ. P. 26(b)(5)(A))
Partial Objection
  • If objection is made to only part of an item or category, that part must be specified, and inspection must be permitted of the remaining parts (Fed. R. Civ. P 34(b)(2)(C))
Manner of Producing or Inspecting
  • Responding party must produce documents for inspection in either of the following ways:
    • As they are kept in the usual course of business
    • Organized and labeled to correspond to the categories of the request (Fed. R. Civ. P. 34(b)(2)(e)(i))
Bates Stamping
Electronically Stored Information (ESI)
  • Responding party must produce ESI in the form or forms specified in the request or in the form or forms specified in the response, or in a form or forms in which it is ordinarily maintained or that are reasonably usable (Fed. R. Civ. P. 34(b)(2)(E)(ii))
Costs of Production
Duty to Supplement or Correct Responses
Rules
  • Rule 34 (Fed. R. Civ. P. 34(a)(1))
    • Governs document requests in federal litigation
    • Allows inspection, copying, testing, or sampling of documents, ESI, and tangible things
    • Permits entry onto designated land or property for various purposes (Fed. R. Civ. P. 34(a)(2))
  • Rule 45 (Fed. R. Civ. P. 45(a)(1)(A)(iii))
    • Allows document subpoenas for obtaining documents and tangible things from nonparties
    • Does not impose "meet-and-confer" obligations of Rule 26(f)
Deadlines
Proportionality
  • Rule 26(b) informs the scope of Rule 34 requests (Fed. R. Civ. P. 26(b)(1))
  • Requires discovery to be relevant and proportional to the needs of the case
  • Balances the value of requested discovery against the cost of production
Types of Requests
  • Inspection or copying of various types of documents and tangible things (Fed. R. Civ. P. 34(a)(1)(A))
    • Includes ESI
  • Non-destructive and destructive testing
    • Courts balance the respective interests of the parties when determining whether to allow testing
Preservation
  • Duty to preserve all evidence, including ESI, relevant to any present or future litigation
  • "Litigation hold" letter advises opposing party or counsel to preserve relevant documents and ESI
Propounding Requests
Drafting Requests
  • Documents must be described with "reasonable particularity" (Fed. R. Civ. P. 34(b)(1)(A))
  • Specify a reasonable time, place, and manner for inspection and related acts (Fed. R. Civ. P. 34(b)(1)(B))
  • Description should be sufficient for a reasonable person to determine precisely the documents requested
Enforcement
  • Motion to compel discovery (Fed. R. Civ. P. 37(a)(3)(B)(iii))
    • May be filed if a party fails to respond to a request for production or inspection
  • Motion for a protective order under Rule 26(c) (Fed. R. Civ. P. 26(c)(1))
    • May be filed by a party opposing disclosure to protect against annoyance, embarrassment, oppression, or undue burden or expense
Using Documents
  • Documents produced in discovery are deemed self-authenticating and may be used in court proceedings
  • Documents may be challenged on other evidentiary grounds, such as relevance or hearsay
Interrogatories
  • Responding
  • Propounding
- Investigation

- Reasonable investigations required (Nutreance LLC v. Primark, LLC, Case No. 4:18-cv-00098-SRC (E.D. Mo. Jul. 10, 2020))

- Search records, gather information from various sources (Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250)

- Deadlines

- 30 days to respond (Fed. R. Civ. P. 33(b)(2))

- Additional 3 days if served by mail or other means (Fed. R. Civ. P. 6(d))

- Deadlines may be modified by court order or stipulation (Fed. R. Civ. P. 29)

- Modification

- Shortened or extended by court order or stipulation (Fed. R. Civ. P. 33(b)(2), 29(b))

- Resolve deadline disputes informally before seeking court intervention

- Failure

- Waiver of objections (Fed. R. Civ. P. 33(b)(4))

- Court may excuse failure for good cause shown (Davis v. Fendler, 650 F.2d 1154)

- Objections

- Specific and well-supported (Nasreen v. Capitol Petroleum Grp., LLC, 340 F.R.D. 489)

- General or boilerplate objections insufficient (Wesley Corp. v. Zoom T.V. Prods., LLC, Case No. 17-10021 (E.D. Mich. Jan. 11, 2018))

1. Argumentative or speculative: Interrogatories are subject to objection if they call for argumentative or speculative answers (In re Erie Lackawanna Ry. Co., 496 F.2d 1189, 1190 (6th Cir. 1974)).

2. Work product: Protected work product is beyond the scope of discovery (Fed. R. Civ. P. 26(b)(3)).

3. Available from another source: Interrogatories may not seek information that is obtainable from some other source that is more convenient, less burdensome, or less expensive (Fed. R. Civ. P. 26(b)(2)(C)(i)). The responding party has the burden of showing facts justifying this objection (Kickapoo Tribe of Indians of Kickapoo Rsrv. in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, 294 F.R.D. 610, 614 (D. Kan. 2013)).

4. Burden outweighs benefit: The burden or expense of the interrogatories must not outweigh their likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the interrogatories in resolving the issues (Fed. R. Civ. P. 26(b)(1); EEOC v. Outback Steakhouse of Fla., Inc., 251 F.R.D. 603, 608 (D. Colo. 2008)).

5. Cumulative or duplicative: Interrogatories may not seek information that is unreasonably cumulative or duplicative (Fed. R. Civ. P. 26(b)(2)(C)(i); Johnson v. Charps Welding & Fabricating, Inc., 950 F.3d 110, 106 (1st Cir. 2020)).

6. Irrelevant information: Information that is irrelevant to the claims or defenses of the parties is beyond the scope of discovery (Fed. R. Civ. P. 26(b)(1)).

7. Legal conclusions: Interrogatories may not seek legal conclusions on questions of pure law (Fed. R. Civ. P. 33(c) advisory committee's note to 1970 amendment).

8. Premature contention interrogatories: Prematurely served contention interrogatories may be subject to objection, and the responding party may be able to obtain a court order that the interrogatories need not be answered until a later time in the proceedings (Fed. R. Civ. P. 33(a)(2)).

9. Privilege: Privileged information is beyond the scope of discovery (Fed. R. Civ. P. 26(b)(1)). The responding party must provide a specific objection, supported by a privilege log, to preserve the privilege (Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)).

10. Number exceeded: Interrogatories served on a specific party must not exceed the 25-interrogatory limit set by the Federal Rules or other court-set limits (Fed. R. Civ. P. 33(a)).

- Duty

- Provide responsive, complete, and unevasive answers (Essex Builders Grp., Inc. v. Amerisure Ins. Co., 230 F.R.D. 682)

- Conduct reasonable investigations, not extensive searches (Areizaga v. ADW Corp., 314 F.R.D. 428)

- Duty extends to certain other sources, such as counsel and business entities (Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204)

- Responses

- Clear, concise, and directly address each interrogatory

- Specific objections with specificity (Fed. R. Civ. P. 33(b)(4))

- Provide partial answers when possible (Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613)

- State efforts to obtain information if lacking knowledge (Nat'l Fire Ins. Co. of Hartford v. Jose Trucking Corp., 264 F.R.D. 233)

- Format

- Include preliminary statements, general objections, specific answers

- Avoid boilerplate objections (Fischer v. Forrest, 14 Civ. 1304 (PAE) (AJP) (S.D.N.Y. Feb. 28, 2017))

- Number and restate each interrogatory (Fed. R. Civ. P. 33(b)(3))

- Supplementation

- Continuing duty to supplement or correct responses (Fed. R. Civ. P. 26(e)(1))

- Self-executing duty, may result in sanctions (Fed. R. Civ. P. 37(c)(1))

- Supplementation must occur in time to allow meaningful discovery (Poitra v. Wichita Mortg. Corp., 747 F.2d 1486)

- Enforcement

- Motion to compel discovery for failure to respond (Fed. R. Civ. P. 37(a)(3)(iii), (4))

- Attempt to resolve disputes informally before filing motion (Fed. R. Civ. P. 37(a)(1))

- Protective orders to prevent undue burden or expense (Fed. R. Civ. P. 26(c)(1)(G))

Overview

Law: authorized under Federal Rules of Civil Procedure (Rule 33)

Purpose: one party asks written questions to another party

Scope: any nonprivileged matter relevant to a claim or defense (Rule 26(b))

Types

- Factual interrogatories

- Seek information such as identity of documents, tangible things, persons with knowledge, or communications (Lehman v. Kornblau, 206 F.R.D. 345, 346)

- Examples:

- Identifying a defendant's principal place of business

- Identifying witnesses with knowledge of a specific event

- Contention interrogatories

- Seek opinions or contentions related to facts or the application of law to facts (Rule 33(a)(2))

- Examples:

- Requesting a party to state facts supporting a specific contention

- Asking for the amount of damages sought for a particular claim

Procedure

- Timing: serve after Rule 26(f) conference and up until close of discovery (Rule 26(d)(1)).

- Maximum: 25 interrogatories per party (Rule 33(a)(1); St. Paul Fire and Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 217 F.R.D. 288, 289)

- Subparts: count toward the 25 interrogatory limit (Rule 33 advisory committee's note to 1993 amendment; Est. of Manship v. U.S., 232 F.R.D. 552, 554; Safeco Ins. Co. of Am. v. Rawstron, 181 F.R.D. 441, 444)

- Nominally separate parties considered one party for purposes of the 25 interrogatory limitation (Vinton v. Adam Aircraft Indus., Inc., 232 F.R.D. 650, 664; Adlerstein v. U.S. Customs & Border Prot., 342 F.R.D. 269, 272)

Deadlines

- Responses: serve within 30 days of interrogatories' service (Rule 33(b)(2))

- Additional time: three extra days for non-personally served interrogatories (Rule 6(d))

- Objections: state with specificity and serve within 30 days, or deemed waived (Rule 33(b)(4))

- Motion to compel: no specific time limit, but should be brought within a reasonable time after impasse (Rule 37(a)(3)(B)(iii))

Case and Statute Citations

- Rule 33(a)(2): Contention interrogatories may ask for an opinion or contention that relates to fact or the application of law to fact

- Rule 26(f): Conference of Parties

- N. Ind. Pub. Serv. Co. v. Colo. Westmoreland, Inc., 112 F.R.D. 423, 424: Request for discovery from a party must be served at least 30 days prior to the completion of discovery

- Thomas v. Pacificorp, 324 F.3d 1176, 1179: Request for discovery from a party must be served at least 30 days prior to the completion of discovery

- Synopsys, Inc. v. ATopTech, Inc., 319 F.R.D. 293, 294: Subparts count as one interrogatory if logically or factually subsumed within the primary question

- Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 664–65: Subparts count as one interrogatory if directed at eliciting details concerning a common theme

- Allahverdi v. Regents of Univ. of N.M., 228 F.R.D. 696, 698: Responding party should object to all interrogatories or seek a protective order

- Mondragon v. Scott Farms, Inc., 329 F.R.D. 533, 541: Responding party should answer up to the numerical limit and object to the remainder without answering

- Capacchione v. Charlotte-Mecklenburg Schs., 182 F.R.D. 486, 492: Responding party cannot pick and choose which interrogatories to answer

- Fed. R. Civ. P. 33 advisory committee's note to 1993 amendment: Time for response measured from date of parties' meeting under Rule 26(f) when action is removed from state court and number of outstanding interrogatories would exceed the number permitted by Rule 33

Notice of Depositions
  • Overview
Notice
Obligations
Deadlines
Subpoenas
Notice
  • Written notice of deposition required (Fed. R. Civ. P. 30(b)(1))
  • State deponent's name and address, if known
  • State deposition location and method of recording
  • Rule 45 provides geographic limitation for nonparty deposition location (Fed. R. Civ. P. 45(c)(1))
  • Serve notice 30 days in advance if Rule 34 request for documents included (Fed. R. Civ. P. 34(b)(2))
Service
  • Serve notice on all parties (Fed. R. Civ. P. 30(b)(1))
  • Do not file notice
  • If subpoena issued, serve on all parties and subpoenaed witness
Subpoenas
  • Responding
  • Propounding
Subpoenas

- Rule 45 of the Federal Rules of Civil Procedure governs subpoenas in federal court litigation
- Options for responding: compliance, resistance, contacting issuing party
- Ignoring or refusing to comply can result in sanctions (Gesualdi v. Hardin Contracting Inc., 09-cv-0683(SJF)(AKT) (E.D.N.Y. May. 6, 2016))

Preservation

- Advise clients to preserve requested material upon receiving a subpoena
- Duty to preserve evidence (Rule 45)

Compliance

- Procedures depend on subpoena demands: testimony, document production, inspection of premises (Fed. R. Civ. P. 45(a)(1))
- Ensure timely production of documents
- Inform issuing party if client lacks responsive documents

Testimony

- Subpoena must specify time and place for compliance (Fed. R. Civ. P. 45(a))
- Geographical limitations apply (Fed. R. Civ. P. 45(c)(1))
- Remote testimony limitations (In re John Kirkland, et al. v. USBC, Los Angeles, No. 22–70092, July 27, 2023)

Document Production

- Produce documents as kept in the ordinary course of business or organized and labeled to correspond with subpoena categories (Fed. R. Civ. P. 45(e)(1); Fed. R. Civ. P. 45(a)(1)(D))
- Geographical limitations apply (Fed. R. Civ. P. 45(c)(2))

Electronically Stored Information

- Issuer may specify form(s) for production (Fed. R. Civ. P. 45(e)(1))
- Inaccessible electronically stored information (Fed. R. Civ. P. 45(e)(1)(D))

Objections

Deadlines

- Serve objections before specified compliance date or within 14 days of subpoena's service (Fed. R. Civ. P. 45(d)(2)(B))
- File motions to quash or modify before compliance date (Ht S.R.L. v. Velasco, 125 F. Supp. 3d 211 (D.D.C. 2015))
- Consult local and individual judge's rules for protective order motions (Fed. R. Civ. P. 26(c)(1))

Consequences

- Failure to respond can result in contempt sanctions (Fed. R. Civ. P. 45(g))
- Sanctions may include costs, attorney's fees, imprisonment (Nat'l Credit Union Admin. Bd. v. CUMIS Ins. Soc'y, Inc., Civil No. 16-139 (DWF/LIB) (D. Minn. Oct. 9, 2018); Sage v. Bridgestone Ams. Tire Operations, LLC, Case No. 18-3170 (DSD/BRT) (D. Minn. Aug. 15, 2019))
- Ensure timely compliance, objections, or motions to protect clients

1. Purpose of a Subpoena

- Appear and testify at a proceeding
- Produce documents, things, or electronically stored information (ESI)
- Permit the inspection of premises
(Fed. R. Civ. P. 45(c))

2. Identifying the Subject of a Subpoena

- A person includes a "juristic person," such as a corporation or government
(Rosenruist-Gestao E Servicos LDA v. Virgin Enters., 511 F.3d 437 (4th Cir. 2007))

3. Minimizing the Burden on the Subpoenaed Witness

- Take reasonable steps to avoid undue burden or expense on a person subject to a subpoena
(Fed. R. Civ. P. 45(d))

4. Subpoenas Duces Tecum

- When a subpoena requires only the production of documents, things, or ESI, and does not require testimony, the person subpoenaed need not appear in person
(Fed. R. Civ. P. 45(d)(2))

5. ESI Considerations

- Special rules govern subpoenas for ESI
(Fed. R. Civ. P. 45(a)(1)(C), 45(e)(1)(B), 45(e)(1)(C), and 45(e)(1)(D))

6. Issuing a Subpoena

- Only a clerk of court or an attorney can issue a subpoena
(Fed. R. Civ. P. 45(a)(3))

7. Serving a Subpoena

- Personal service of a subpoena on an individual is required in most federal courts
(Fed. R. Civ. P. 45(b)(1))

 
8. Enforcing a Subpoena

- If a nonparty witness fails to comply with a subpoena, seek the court's assistance to enforce the subpoena under Rules 37 or 45 of the Federal Rules
(Fed. R. Civ. P. 37, 45)

9. Relief Available under Rule 37

- Move for an order compelling discovery under Rule 37(a)
(Fed. R. Civ. P. 37(a)(1))

10. Relief Available under Rule 45

- Compel a nonparty witness's compliance with a subpoena under Rule 45 when the nonparty witness fails to comply without an adequate excuse
(Fed. R. Civ. P. 45(g))

Florida Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Subpoenas
  • Motions to Compel
  • eDiscovery
Requests for Admission
  • Responding
  • Propounding
Applicable Rules:
Failure to Respond:
  • Failure to timely serve a response results in an automatic admission of all requests (Fla. R. Civ. P. 1.370(a))
  • Matters technically admitted are considered conclusively established in the pending action, unless the court permits withdrawal of the admissions (Fla. R. Civ. P. 1.370(b))
Extension for Response:
Preparing to Respond:
  • Six basic options for responding to RFAs: admit, deny, admit in part and deny in part, state inability to answer with detailed reason, object, or move for a protective order (Fla. R. Civ. P. 1.370(a))
  • Responses to RFAs can fundamentally impact the case by creating an agreed-upon set of facts (Fla. R. Civ. P. 1.370(b))
Objections
  1. Exceeding the limit of 30 requests: A request is objectionable if it results in the serving of more than 30 requests without a stipulation from the parties or a court order (Fla. R. Civ. P. 1.370(a)).
  2. Served after the close of discovery: An objection may be raised if the request was served after the close of discovery and no modification of the order setting deadlines was sought (Fla. R. Civ. P. 1.200(d)).
  3. Annoyance, embarrassment, or undue burden: Responding to the request would cause annoyance, embarrassment, oppression, or undue burden or expense to the responding party (Fla. R. Civ. P. 1.280(c)).
  4. Irrelevant matters: The request seeks admissions regarding matters not relevant to the subject matter of the pending action (Fla. R. Civ. P. 1.280(b)(1)).
  5. Inadmissible evidence: The request seeks admissions that are inadmissible and not reasonably calculated to lead to the discovery of admissible evidence (Fla. R. Civ. P. 1.280(b)(1)).
  6. Discovery regarding experts: The request seeks discovery regarding a consulting expert without a court order, or regarding a testifying expert before disclosure by interrogatory or without a court order (Fla. R. Civ. P. 1.280(b)(5)).
  7. Privileged or protected information: The request seeks admissions regarding work product or matters protected by attorney-client privilege or other specific privilege (Fla. R. Civ. P. 1.280(b)(1), (3)).
Drafting Responses:
Changing or Amending Responses:
Applicable Rules:

- Permitted in civil cases, special statutory proceedings, probate and guardianship proceedings, family law cases, and small claims cases (Fla. R. Civ. P. 1.010, Fla. Prob. R. 5.080(a)(11), Fla. R. Fam. Law R. Proc. 12.370, Fla. Sm. Cl. R. 7.020(b)).

- Used in expedited trials (Fla. Stat. § 45.075) and actions providing for summary procedure (Fla. Stat. § 51.011).

Purpose:

- To narrow the issues that must be litigated by compelling the responding party to admit the truth of matters that cannot in good faith be disputed (Winn Dixie Stores, Inc. v. Gerringer, 563 So. 2d 814 (Fla. 3d DCA 1990)).

Scope:

- Requests for admission may relate to any matter within the scope of discovery (Fla. R. Civ. P. 1.370(a), 1.280(b)(1)).

- Expert-related requests require specific conditions (Fla. R. Civ. P. 1.280(b)(5)(A), 1.280(b)(5)(B)).

- Proper subject for a request: seeking damages that exceed the jurisdictional threshold (K-Mart Corp. v. Fernandez, 623 So. 2d 846 (Fla. 2d DCA 1993)).

Directed at Parties:

- RFAs may only be served by a party upon any other party (Fla. R. Civ. P. 1.370(a)).

Limitation on the Number of Requests:

- A party shall serve no more than 30 separate requests, including subparts, unless stipulated or permitted by the court (Fla. R. Civ. P. 1.370(a)).

Deadline for Responses:

- A response must be served within 30 days from the date of service, unless the time period has been shortened or enlarged by court order (Fla. R. Civ. P.1.370(a), Fla. R. Jud. Admin. 2.516(b)).

Formatting Requirements:

- Every paper must have a caption and title (Fla. R. Civ. P. 1.100(c)(2)).

- Each matter of which an admission is requested shall be separately set forth (Fla. R. Civ. P. 1.370(a)).

- Attach documents when admission of genuineness is sought (Fla. R. Civ. P. 1.370(a)).

- Papers must be signed by attorney or unrepresented party (Fla. R. Jud. Admin. 2.515).

Service Requirements:

- RFAs may be served upon a plaintiff after the complaint is filed and upon any other party with or after service of the process and initial pleading (Fla. R. Civ. P. 1.050, 1.370(a)).

Motion Practice:

- The burden is on the requesting party to file a motion challenging the sufficiency of a response (Fla. R. Civ. P. 1.370(a)).

- If a motion to determine sufficiency is granted, the court may order expenses and attorney's fees (Fla. R. Civ. P. 1.370(a), 1.380(a)(4)).

- A copy of a motion and notice of hearing must be served within a reasonable time before the hearing (Fla. R. Civ. P. 1.090(d), Fla. R. Jud. Admin. 2.516(b)(1)(D)).

Requests for Production
  • Responding
  • Propounding
1. Preserve Relevant Evidence

- Send a document preservation letter to your client as soon as possible.
- Instruct your client to preserve potentially relevant documents and suspend ordinary-course document destruction procedures.
(Fla. R. Civ. P. 1.280)

2. Objections

Nonexistence of the document: If the requested document does not exist, there are three possible explanations:
o It was never created in the first place.
o It was created, but subsequently lost (describe the efforts made to find the document).
o It was created, but subsequently destroyed (describe your client's record retention policy) (Fla. R. Civ. P. 1.350(a)).

Document not in possession, custody, or control: If the requested document is not in the possession, custody, or control of your client, disclose the identity of the person who does have possession, custody, or control, if known (Fla. R. Civ. P. 1.350(a)).

Beyond the scope of discovery: Explain why the material requested is not reasonably calculated to lead to the discovery of admissible evidence (Fla. R. Civ. P. 1.280(b)(1)).

Vague or Insufficiently Particular: Explain why you cannot respond with the description provided in the request (Palmer v. Servis, 393 So. 2d 653 (Fla. 5th DCA 1981)).

Privileged: Explain the privilege you are relying upon, such as the work product or trial preparation privilege, the attorney-client privilege, physician-patient privilege, etc. (Fla. R. Civ. P. 1.280(b)(5)).

Grounds for a protective order: If grounds exist that would support a grant of a protective order, object on these grounds (Fla. R. Civ. P. 1.280(c)).

Unreasonable "time, place, or manner" for production: Object if the request specifies an unreasonable time, place, or manner for production.

Request for an expert witness's financial or business records: Object if the request seeks an expert witness's financial or business records (Fla. R. Civ. P. 1.280(b)(5)(A)(iii)).

Work Product: Object if the request seeks materials prepared in anticipation of litigation.

Annoyance, embarrassment, oppression, or undue burden or expense: Object if the response to the request would subject the party to annoyance, embarrassment, oppression, or undue burden or expense (Fla. R. Civ. P. 1.280(c); Fla. R. Civ. P. 1.351(c)).

Request requires party to label and organize documents: Object if the request requires the party to label and organize documents, as a party is only required to produce items "as they are kept in the usual course of business" or "identify them to correspond with the categories in the request" (Grinnell Corp. v. The Palms 2100 Ocean Blvd., Ltd., 924 So. 2d 887 (Fla. 4th DCA 2006)).

3. Responding to the Document Requests

- Serve written responses to document requests, stating that your client will produce responsive documents unless you assert an objection.
- Review the entire request before responding and discuss the requests with your client.
- Grounds for objecting to or refusing to produce a requested document include nonexistence, not in possession, beyond the scope of discovery, vagueness, and privilege.
(Fla. R. Civ. P. 1.350)

4. Drafting the Response

- Include a caption and title, general responses and objections, each interrogatory as propounded by the opposing party accompanied by specific responses and objections, and a signature block in your written document request response.
- Consult your judge's applicable individual rules and standing orders for specific document request response format requirements.
(Fla. R. Civ. P. 1.280(i))

5. Withholding Privileged Documents

- When withholding documents based on a claim of privilege, make the claim expressly and provide a description of the nature of the documents, communications, or things not produced.
- Create a privilege log containing necessary information regarding withheld documents.
(Fla. R. Civ. P. 1.280(b)(5))

6. Organizing Documents to Be Produced

- Produce documents as they are kept in the usual course of business or organized and labeled to correspond with categories in the request.
- Number each page of every document produced and keep a record of the produced documents.
(Fla. R. Civ. P. 1.350)

7. Supplementing Responses

- You have a limited duty to supplement your client's responses to requests for production, which generally means producing documents once they are discovered.
- Notify the opposing party when additional responsive documents are discovered.
(Fla. R. Civ. P. 1.350)

8. Applying for Protective Order

- A party or other person from whom production of documents or things is sought may seek a protective order against annoyance, embarrassment, oppression, or undue burden or expense.
- Show that the same discovery may be accomplished in a less intrusive manner and shift the burden to the party seeking discovery to demonstrate reasons why justice requires that the discovery be permitted.
(Fla. R. Civ. P. 1.280(c))

9. Failure to Respond to Request

- Complete failure to respond to a request for inspection is a discovery violation that almost invariably merits monetary sanctions.
- If a party fails to comply with an order for production, the court may make several orders, including striking out pleadings or parts of them, staying further proceedings, or rendering a judgment by default against the disobedient party.
(Fla. R. Civ. P. 1.380(d))

I. Using Requests for Production (RFPs) (Fla. R. Civ. P. 1.280(b), 1.350(a))

A. Obtain documents and tangible things in possession, custody, or control of the party
B. Items include electronically stored information, writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations (Fla. R. Civ. P. 1.350(a)(1))
C. Consider electronic discovery (Fla. R. Civ. P. 1.280(b)(3))

II. Types of Discoverable Items (Examples from case law)

A. Business records
B. Corporate records of a wholly owned subsidiary
C. Employment and personnel records
D. Files of an attorney retained by an insurance company
E. Photographs, negatives, news articles, stories, news releases, notes, memoranda, and rough drafts
F. Attorney billing information
G. Incident or accident reports prepared for a purpose other than in anticipation of litigation

III. Drafting and Serving Requests for Discovery and Inspection (Fla. R. Civ. P. 1.350)

A. Request must set forth items to be inspected, describe each item or category with particularity, and specify a reasonable time, place, and manner of making the inspection
B. Request for production of documents or tangible things from a party may be coupled with a notice of deposition on oral examination or a notice and written questions (Fla. R. Civ. P. 1.310(b)(5))
C. Consider your client's litigation goals and financial resources when drafting requests
D. Tailor the document requests and consider electronic discovery
E. Nonparty discovery requires a subpoena (Fla. R. Civ. P. 1.410(e))

IV. Drafting Document Requests

A. Include a caption and title, demand, definitions, instructions, and requests
B. Avoid broad and general requests
C. Describe as precisely as possible what you are requesting
D. Use generic document requests and specific document requests tailored to the facts of your case

V. Serving Requests (Fla. R. Civ. P. 1.350)

A. Written response required within 30 days of service of the request, or 45 days for a defendant after service of process and initial pleading
B. Ensure that requests are served before the discovery deadline set in the case management order, giving the responding party sufficient time to serve responses prior to close of discovery (Fla. R. Civ. P. 1.200)

Interrogatories
  • Responding
  • Propounding
1. Timing for Response

- A party served with interrogatories must respond within 30 days, or within a different time period set by the court. Fla. R. Civ. P. 1.340(a).

- If interrogatories were served with the initial pleading, the defendant has 45 days to respond. Fla. R. Civ. P. 1.340(a).

2. Client Obligations

- The responding party must provide all available non-privileged information within the scope of discovery. Fla. R. Civ. P. 1.340(a).

3. Responding to Interrogatories

- Answers must be in writing, separately and fully answer each interrogatory, state any objections with reasonable particularity, and follow the question to which it responds. Fla. R. Civ. P. 1.340(a).

4. Formatting Response to Interrogatories

- Responses should identify the propounding party, responding party, and the number of the set of interrogatories. Both objections and answers should be numbered sequentially to correspond with the interrogatory. Fla. R. Civ. P. 1.340(a).

5. Claiming Privilege or Protection of Work Product

- A party withholding discoverable information on the grounds of privilege or protection of trial preparation materials must make an express claim and describe the nature of the information or materials without divulging privileged or protected information. Fla. R. Civ. P. 1.280(b)(5).

6. Objecting
7. Protective Orders

- A party served with interrogatories may move for a protective order if the facts establish good cause for protection from annoyance, embarrassment, oppression, or undue burden or expense. Fla. R. Civ. P. 1.280(c).

8. Supplementing Answers to Interrogatories

- A party has no duty to supplement a response that was complete at the time it was made by providing information that may be acquired thereafter. Fla. R. Civ. P. 1.280(e).

9. Serving Response

- Responding party must serve the response upon the propounding party and serve a copy of the response on all other parties to the proceeding. Fla. R. Civ. P. 1.340(e).

10. Filing Response with the Court

- Filing interrogatory responses is not required, but may be filed when a party concludes, or the court requires, that the answers to interrogatories are necessary to determine any matter pending before the court. Fla. R. Civ. P. 1.280(g).

1. Purpose of Interrogatories
  • Obtain basic information from the opponent in an inexpensive and efficient manner
  • Discover information needed to prove claims or defenses
  • Identify potential witnesses
  • Gather data or other information that is difficult to obtain through a deposition
  • Follow up on matters previously discovered
  • Uncover insurance policies or indemnification agreements
  • Evaluate adversary's litigation strengths and weaknesses

(Cabrera v. Evans, 322 So. 2d 559 (Fla. 3d DCA 1975))

2. Applicable Law
  • Federal and Florida rules governing interrogatories are nearly identical
  • Cases interpreting federal rules are persuasive authority in Florida cases

(Fed. R. Civ. P. 26, 33; Fla. R. Civ. P. 1.280, Fla. R. Civ. P. 1.340; TIG Insur. Corp. of Am. v. Johnson, 799 So.2d 339 (Fla. 4th DCA 2001); Slatnick v. Leadership Hous. Sys., Inc., 368 So. 2d 78 (Fla. 4th DCA 1979))

3. Procedural Rules
  • Interrogatories are a discovery tool used only on other parties
  • May be used in any sequence, unless otherwise ordered by the court
  • Special form interrogatories are promulgated by the Florida Supreme Court for certain types of actions
  • Maximum of 30 interrogatories without leave of court

(Fla. R. Civ. P. 1.010, 1.280(d), 1.340)

4. Timing
  • Interrogatories may be served on a plaintiff any time after commencement of the action
  • May be served on other parties with the summons and complaint, or any time thereafter, but prior to trial

(Fla. R. Civ. P. 1.340(a))

5. Scope of Interrogatories
  • May be used for any matter within the scope of discovery
  • Information sought need not be material provided it is relevant

(Fla. R. Civ. P. 1.280(b)(1), Amente v. Newman, 653 So. 2d 1030 (Fla. 1995)McMillan v. McGill, 584 So. 2d 185 (Fla. 2d DCA 1991))

6. Drafting Interrogatories
  • Concise language
  • Narrow focus, clear, and direct questions
  • Avoid vague, broad, and poorly organized questions
  • Include definitions, instructions, and separate numbered paragraphs for each interrogatory
7. Service of Interrogatories
  • May be served with the summons and complaint, or any time thereafter
  • Copies of interrogatories must be served on all other parties to the action
  • Certificate of service must be filed with the court

(Fla. R. Civ. P. 1.340(a), 1.340(e))

8. Interrogatories Not Filed with Court
  • Interrogatories need not be filed with the court
  • The court may order the interrogatories and responding answers filed at any time the court deems necessary

(Fla. R. Civ. P. 1.340(e))

Subpoenas
  • Overview
I. Overview

II. Issuing a Subpoena

III. Basic Format Requirements

IV. Service Requirements

V. Witness Fees

  • Witnesses may be reimbursed for costs of mileage, attendance, and document production (Fla. R. Civ. P. 1.350(c); Fla. R. Civ. P. 1.390(c))
  • Remember to avoid being over-broad in your requests for materials to prevent unnecessary court hearings and to ensure a smooth discovery process.

Motions to Compel
  • Overview
1. When Appropriate

A court may issue an order to compel discovery in the following situations (Fla. R. Civ. P. 1.380(a)(2)):

However, discovery cannot be compelled for privileged material or if the discovery is excessively burdensome/expensive or requires the creation of non-existent records (Chrysler Corp. v. Miller, 450 So. 2d 330 (Fla. 4th DCA 1984)).

2. Pre-filing Requirements

Before filing a motion to compel discovery, parties must attempt to resolve the dispute themselves (Fla. R. Civ. P. 1.380(a)(2)). A certification of a good faith attempt to resolve the dispute must be included in the motion (Fla. R. Civ. P. 1.380(a)(2)).

3. Procedure for Obtaining an Order to Compel Discovery

To obtain an order, follow these steps (Fla. R. Civ. P. 1.380(a)(2)):

  • Provide reasonable notice to other parties and affected persons
  • Include a certification of good faith attempt to resolve the dispute
  • File the motion in the appropriate court
  • The court will hold a hearing and may grant the motion and award expenses (Fla. R. Civ. P. 1.380(a)(4))
4. Grounds for the Motion

Specify the grounds for compelling discovery, such as:

5. Trial Preparation Materials

Discovery cannot be withheld if the items were not prepared in anticipation of litigation or if good cause exists for production (Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444, 446–47 (Fla. 3d DCA 2006); Ruby Tuesday, Inc. v. Metalonis, 225 So. 3d 397, 398 (Fla. 3d DCA 2017)).

6. Privacy
eDiscovery
  • Overview
1. Scope of Electronic Discovery
2. Need for Electronic Discovery
3. Form of Production
4. Inspection of Entire Computer or Hard Drive
5. Cost-Shifting
6. Discovery from Nonparties

Georgia Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Subpoenas
Requests for Admission
  • Overview
Timing of Requests for Admission:
  • RFAs may be served upon the plaintiff at any time after the commencement of an action (O.C.G.A. § 9-11-36(a)(1))
  • RFAs may be served upon any party with or after service of the summons and complaint upon that party (O.C.G.A. § 9-11-36(a)(1))
  • Discovery must be started promptly after the action commences, pursued diligently, and completed within six months after the answer is filed unless the court alters the time frame (Ga. Unif. Super. Ct. R. 5.1)
 
Contents of RFAs:
 
Number of RFAs:
 
Serving RFAs:
 
Drafting Responses to RFAs:
  • Responses to RFAs can admit the matter, deny the matter, explain in detail why the responding party cannot truthfully admit or deny the matter, admit only portions of the request but deny the remainder, or object to the request (O.C.G.A. § 9-11-36(a)(2))
 
Objections

When objecting to an RFA, consider the following potential objections and ensure your written response includes the reasons for the objections (O.C.G.A. § 9-11-36(a)(2)). If objecting to only a portion of a request, you must respond to the remainder of the request (O.C.G.A. § 9-11-36(a)(2)).

  1. Relevance: Consider whether the RFA lacks relevance to the case. However, remember that it is not a ground for objection that the information sought will be inadmissible at trial if the information appears reasonably calculated to lead to the discovery of admissible evidence (O.C.G.A. § 9-11-26(b)(1)).
  2. Undue burden or harassment: Although the Georgia Civil Practice Act does not limit the number of RFAs that a party may serve (O.C.G.A. § 9-11-36), if you are served with an excessive number of RFAs, you may object on this basis and seek a protective order under O.C.G.A. § 9-11-26(c). Alternatively, you may seek an extension of time to respond (O.C.G.A. § 9-11-6(b)).
  3. Broad, vague, or ambiguous: you cannot determine what the opposing party is asking your client to admit, you can object on these grounds (Powerhouse Custom Homes, Inc. v. 84 Lumber Co., L.P., 307 Ga. App. 605 (2011)).
  4. Failure to attach documents: the party must serve a copy of the document along with the request unless a copy of the document has previously been provided (O.C.G.A. § 9-11-36(a)(1)).
  5. Privilege: A party may object to a request if answering the request would disclose privileged information, such as the admission violating attorney-client privilege or disclosing attorney work product (O.C.G.A. § 9-11-26(b)(1)).
 
Serving and Filing Responses:
 
Failure to Serve Timely Response, Unintentional Admissions, and Extensions of Time:
 
Resolving Disputes and Challenging Deficient Responses:
Requests for Production
  • Responding
  • Propounding
Calendaring Timely Responses to Requests for Discovery and Inspection
 
Preparing Written Responses to Requests for Discovery and Inspection
 
Objections
  1. Relevance: If the information sought is not relevant to the subject matter of the litigation, an objection on the grounds of relevance can be made (O.C.G.A. § 9-11-26(b)(1)).
  2. Privilege: If the information sought is protected by attorney-client privilege, work product privilege, or any other recognized privilege, an objection on the grounds of privilege should be raised (Georgia Cash America, Inc. v. Strong, 649 S.E.2d 548 (2007); O.C.G.A. § 9-11-26(b)(3)).
  3. Overly Broad: If the request is overly broad or seeks an excessive amount of information, an objection on the grounds of being overly broad may be made (O.C.G.A. § 9-11-26(c)).
  4. Undue Burden: If the request imposes an undue burden or expense on the responding party, an objection on the grounds of undue burden can be made (O.C.G.A. § 9-11-26(c)).
  5. Vagueness or Ambiguity: If the request is vague or ambiguous, an objection on these grounds should be raised to require clarification or reformulation of the request (O.C.G.A. § 9-11-26(b)(1)).
  6. Confidentiality: If the information sought is confidential, such as trade secrets or sensitive business information, an objection on the grounds of confidentiality can be made (O.C.G.A. § 9-11-26(b)(1), (c)).
  7. Third-Party Privacy: If the request seeks private information about third parties that is not relevant to the litigation, an objection on the grounds of third-party privacy may be made (O.C.G.A. § 9-11-26(b)(1)).
  8. Medical Records: If a nonparty practitioner of the healing arts or a hospital or health care facility objects to the production of medical records, or the person whose medical records are sought objects, or any party objects, the objection must be filed with the court within 20 days of service of the request (O.C.G.A. § 9-11-34(c)(2)).
 
When to Seek a Protective Order
  • Seek a protective order against annoyance, embarrassment, oppression, undue burden, or undue expense (O.C.G.A. § 9-11-26(c))
 
How to Obtain a Protective Order
 
Preparing Notice of Motion and Complying with Timing Requirements
 
Preparing a Motion
  • A motion must be in writing, state with particularity the grounds, and set forth the relief or order sought (O.C.G.A. § 9-11-7(b)(1))
 
Timing of Motion and Response and Computing Time
  • Serve written motion and notice of hearing not later than five days before the time specified for the hearing (O.C.G.A. § 9-11-6(d))
  • Serve response to the motion within 30 days after service of the motion or by the date of the hearing (Ga. Unif. Super. Ct. R. 6.2)
 
Oral Hearing of Written Motions
 
Preparing and Submitting Affidavits
  • Support disputed pretrial motions with citations of supporting authorities and, where allegations of unstipulated fact are relied upon, supporting affidavits or citations to evidentiary materials of record (Ga. Unif. Super. Ct. R. 6.1)
 
Requirements for Signing and Dating Motion Papers
  • The motion must be signed by at least one attorney of record in his or her individual name, with address stated (O.C.G.A. § 9-11-11(a))
 
Filing Motion Papers
  • File a motion for a protective order with the court within the time allowed for service (O.C.G.A. § 9-11-5(d))
 
Serving Motion Papers
 
Nonparty Objections to RFPs
  • Nonparty needs only to serve objections, and the burden shifts to the propounding party to move to compel responses (O.C.G.A. § 9-11-34(c)(1))
 
Privilege Waivers
 
Objections to Production of Medical Records
 
Amending and Supplementing Responses to Requests for Discovery and Inspection
I. Scope of Discovery

- Broad scope of discovery under O.C.G.A. § 9-11-26(b)(1) (Hampton Island Founders v. Liberty Capital, 658 S.E.2d 619 (Ga. 2008))

II. Requesting Documents

- Governed by O.C.G.A. § 9-11-34(a)(1)

- Request to inspect and copy designated documents (Ledee v. Devoe, 484 S.E.2d 344 (Ga. App. 1997); S. Outdoor Promotions v. Nat'l Banner Co., 449 S.E.2d 684 (Ga. App. 1994))

- Deposition notice to a party deponent under O.C.G.A. § 9-11-30(b)(5) may be accompanied by a request for production (Ambassador College v. Goetzke, 260 S.E.2d 27, 28 (Ga. 1979))

III. Requesting Tangible Things

- Governed by O.C.G.A. § 9-11-34(a)(1), (c)

- Request to inspect, copy, test, or sample tangible things within the scope of O.C.G.A. § 9-11-26(b)(1) (Baxley v. Hakiel Indus., Inc., 647 S.E.2d 29 (Ga. 2007); Bouve & Mohr, LLC v. Banks, 618 S.E.2d 650 (Ga. App. 2005))

IV. Requesting Entry upon and Inspection of Designated Land

- Governed by O.C.G.A. § 9-11-34(a)(2)

- Request to permit entry upon designated land for inspection, measuring, surveying, photographing, testing, or sampling (O.C.G.A. § 9-11-34(c)(1))

V. Requesting Electronic Discovery

- Electronic data is discoverable under O.C.G.A. § 9-11-26(b)(1) (Ga. Emission Testing Co. v. Reheis, 602 S.E.2d 153 (Ga. App. 2004))

- Develop specific set of requests and definitions for electronic information

VI. Complying with Formal Requirements

- Request must set forth items with reasonable particularity (O.C.G.A. § 9-11-34(b)(1))

- Specify a reasonable time, place, and manner for inspection (O.C.G.A. § 9-11-34(b)(1))

- Include citation of authority, time frame, definitions, and instruction for response

VII. Timing

- Serve requests early in the discovery process

- Respondent has 45 days from service to respond if served with summons and complaint (O.C.G.A. § 9-11-34(b)(2))

VIII. Serving Parties and Nonparties

- Serve requests upon plaintiff after commencement of action (O.C.G.A. § 9-11-34(b)(1))

- Serve requests upon other parties with or after service of summons and complaint (O.C.G.A. § 9-11-34(b)(1))

- Serve requests upon nonparties with a copy to all parties of record (O.C.G.A. § 9-11-34(c)(1))

- Serve requests upon nonparty practitioners of healing arts, hospitals, or health care facilities by certified mail or statutory overnight delivery, return receipt requested, with a copy to the person whose records are sought and all parties of record (O.C.G.A. § 9-11-34(c)(2))

IX. Filing with the Court

- File a certificate of service in compliance with Ga. Unif. Super. Ct. R. 5.2(2)

X. Obtaining Documents and Tangible Items from a Nonparty by Subpoena

- Governed by O.C.G.A. § 9-11-45

- Subpoena may command production of designated books, papers, documents, or tangible things within the scope of O.C.G.A. § 9-11-26(b) (O.C.G.A. § 9-11-45(a)(1)(C))

- Subpoena for documents only not contemplated by O.C.G.A. § 9-11-45; use O.C.G.A. § 9-11-34(c) for nonparty document requests

Interrogatories
  • Responding
  • Propounding
Duty to Respond

- Interrogatories must be relevant and reasonably calculated to lead to the discovery of admissible evidence (O.C.G.A. §§ 9-11-26(b)(1), 9-11-33(b)(1))
- Answer each interrogatory separately and fully in writing under oath, unless asserting an objection (O.C.G.A. § 9-11-33(a)(2))
- Failure to object may result in waiver of the objection (Ale-8-One of Am., Inc. v. Graphicolor Servs., Inc., 166 Ga. App. 506 (1983))
- If the response can be ascertained from the client's business records, identify the documents and produce them to the requesting party (O.C.G.A. § 9-11-33(c))

Truth and Accuracy Considerations

- Client must answer interrogatories under oath (O.C.G.A. § 9-11-33(a)(2))
- Adversary can use interrogatory responses as an admission against the client or to impeach the client's contradictory testimony

Deadline to Respond

- Serve answers and/or objections within 30 days of service (O.C.G.A. § 9-11-33(a)(2))
- Defendant has 45 days after service of summons and complaint to answer and/or object to interrogatories already served (O.C.G.A. § 9-11-33(a)(2))
- Additional three days to respond if served by mail or email (O.C.G.A. § 9-11-6(e))

Duty to Supplement or Amend

- Party must supplement discovery responses for identity and location of persons with knowledge of discoverable matters and expert witnesses (O.C.G.A. § 9-11-26(e)(1))
- Party must amend prior discovery response if it was incorrect when made or is no longer true and constitutes a knowing concealment of information (O.C.G.A. § 9-11-26(e)(2))
- Duty to supplement can arise from a court order or agreement between parties (O.C.G.A. § 9-11-26(e)(3))

Limit on Interrogatories

- Limited to 50 interrogatories, including subparts, per party without court leave (O.C.G.A. § 9-11-33(a)(1))

Producing Responsive Documents

- If response to an interrogatory may be ascertained from responsive business records, produce the records as the answer (O.C.G.A. § 9-11-33(c))

Objections

1. Disclosure beyond the scope of the Civil Practice Act: Interrogatories must be relevant to the claim or defense of any party and should be reasonably calculated to lead to the discovery of admissible evidence (O.C.G.A. §§ 9-11-26(b)(1), 9-11-33(b)(1)). If an interrogatory seeks disclosure beyond these requirements, an objection may be lodged.
2. Not reasonably calculated to lead to the discovery of admissible evidence: If the information sought in the interrogatory is not reasonably calculated to lead to the discovery of admissible evidence, an objection may be raised (O.C.G.A. §§ 9-11-26(b)(1), 9-11-33(b)(1)).
3. Privileged or protected information: If the interrogatory seeks information or documents that are protected by a privilege, such as attorney-client privilege or work product doctrine, or other protections, an objection may be made (O.C.G.A. § 9-11-26(b)(1)).
4. Information protected by a court-imposed protective order: If the information sought in an interrogatory is protected by a court-imposed protective order, an objection can be lodged (O.C.G.A. § 9-11-26(c)).
5. Outside the client's possession, custody, or control: If the requested information or documents are not within the client's possession, custody, or control, an objection may be raised (O.C.G.A. § 9-11-33(a)(2)).
6. Publicly available information: If the information sought in an interrogatory is publicly available, an objection can be made on the grounds that the requesting party can obtain the information through other means.
7. Information related to third parties: If an interrogatory seeks information about third parties who are not involved in the litigation, an objection may be lodged on the grounds of irrelevance or privacy concerns.

Written Oath

- Party responding to interrogatories must sign responses under oath (O.C.G.A. § 9-11-33(a)(2))
- Unsworn statements by counsel are not valid interrogatory responses (Gregory v. King Plumbing, Inc., 127 Ga. App. 512 (1972))

Protective Orders

- Seek a protective order for relief from excessive or repetitive interrogatories (O.C.G.A. § 9-11-26(c))
- Court has broad discretion in granting relief and restricting discovery (Smith v. Northside Hosp., Inc., 347 Ga. App. 700 (2018))

Serving Interrogatory Responses

- Serve responses on propounding party's counsel or unrepresented party and all other parties in the action (O.C.G.A. § 9-11-5(a)–(b))
- File a Rule 5.2 Certificate of Service of Discovery with the court (Ga. Unif. Sup. Ct. R. 5.2)

Methods of Service

- Personally deliver, mail, or email (with consent) the responses (O.C.G.A. §§ 9-11-5(b), 9-11-5(f))

Filing the Responses

- File responses with the court if required by local rule, court order, requested by any party, related to a motion for relief, or to be used at trial or in a pretrial or posttrial motion (O.C.G.A. § 9-11-29.1(a)(1)–(5))

Role of Interrogatories in Discovery:

- Primary discovery methods in Georgia include Requests for Admission (RFAs), Requests for Production (RFPs), Interrogatories, Depositions, and Physical or Mental Examinations (O.C.G.A. § 9-11-26(a))

Procedural Considerations for Serving Interrogatories in Georgia:

- Serve interrogatories on opposing party after service of summons and complaint (O.C.G.A. § 9-11-33(1))

- Check local rules for specific court and/or judge presiding over your case for any other specific rules regarding discovery and the use and service of interrogatories

Number of Interrogatories Allowed:

- Maximum of 50 interrogatories (O.C.G.A. § 9-11-33(1))

- Obtain leave of court to serve more than 50 by showing need for complex litigation or undue hardship (O.C.G.A. § 9-11-33(1))

Scope:

- Discovery regarding any non-privileged matter relevant to the subject matter of the pending dispute (O.C.G.A. § 9-11-26(b)(1))

- Expert witness discovery: identify expert witnesses, subject matter, substance of facts and opinions, and grounds for each stated opinion (O.C.G.A. § 9-11-26(4)(A)(i))

Required Response:

- Responding party must answer each interrogatory separately, fully, in writing, and under oath, or object to the interrogatory and state the reason for objection (O.C.G.A. § 9-11-33(2))

- Generally, respond within 30 days after receipt of interrogatories, or 45 days after service of summons and complaint for defendants (O.C.G.A. § 9-11-33(2))

Service and Notice to the Court:

- File notice with the court that you have served discovery material, specifically interrogatories (Ga. Unif. Super. Ct. R. 5.2 (2))

Duty to Supplement:

- Supplement discovery responses when the question directly addressed identity and location of persons with knowledge of discoverable matters or expert witness information (O.C.G.A. § 9-11-26(e)(1))

- Amend prior discovery response if incorrect when made or no longer true and failing to amend is a knowing concealment of information (O.C.G.A. § 9-11-26(e)(2))

- Duty to supplement responses can arise from court order or agreement between parties (O.C.G.A. § 9-11-26(e)(3))

Timing and Deadlines:

- Complete discovery within six months from the filing of the defendant’s answer (Ga. Unif. Super. Ct. R. 5.1)

- Court retains discretion to extend, reopen, or shorten the discovery period (Ga. Unif. Super. Ct. R. 5.1)

Structure and Content of an Interrogatory:

- Avoid compound or conjunctive interrogatories, draft each interrogatory as a single, specific question

- Each separate subpart counts as a separate interrogatory for the purposes of assessing the maximum of 50 interrogatories (O.C.G.A. § 9-11-33(1)(a))

- Georgia law permits contention interrogatories, but court has the power to order that a specific contention interrogatory need not be answered until after discovery has been completed, at a pretrial conference, or at another later time (O.C.G.A. § 9-11-33(b)(2))

Subpoenas
  • Responding
  • Propounding
Determine the Validity of the Subpoena:
  1. Properly issued and signed by:
  2. Signed by the attorney or party making the request (O.C.G.A. § 24-13-21(d))
  3. Full and complete on its face (O.C.G.A. § 24-13-21(b), (f))
  4. Proper service in accordance with O.C.G.A. § 24-13-24
  5. Served during the discovery period, if for a deposition
 
Reasonable Time to Respond:
  1. 24 hours' notice for a subpoena ad testificandum (O.C.G.A. § 24-13-26)
  2. Minimum of 30 days for a subpoena duces tecum (O.C.G.A. § 9-11-34)
 
Provision of Witness Fees:
  1. $25 per day of testimony (O.C.G.A. § 24-13-25)
  2. Mileage fee of $0.45 per mile traveled (O.C.G.A. § 24-13-25)
 
Complying with the Subpoena:
  1. Timing requirements (O.C.G.A. § 24-13-26)
  2. Preservation of evidence (Phillips v. Harmon, 774 S.E.2d 596, 603 (Ga. 2015))
  3. Protecting privileged information (Cranford v. Cranford, 170 S.E.2d 844, 846 (Ga. App. 1969))
  4. Protecting confidential documents and trade secrets (O.C.G.A. § 9-11-26(C))
  5. Expense involved (O.C.G.A. § 9-11-26(c))
 
Objecting to a Subpoena Ad Testificandum / Witness Subpoena:
  1. Residing outside of Georgia: Object to a subpoena for testimony if the responding party resides outside of Georgia but the examination is noticed for that state (Blanton v. Blanton, 385 S.E.2d 672, 672 (Ga. 1989)).
  2. Not residing or working in the county of examination: Object to a subpoena if the responding party does not reside or work in the county where the examination is to take place (O.C.G.A. § 9-11-45(b)(1)).
  3. Not in the county of examination when served: Object to a subpoena if the responding party was not in the county where the examination is to take place when served with the subpoena (O.C.G.A. § 9-11-45(b)(2)).
  4. Examination more than 30 miles from the county seat: Object to a subpoena if the examination is scheduled to take place more than 30 miles from the county seat of the county where the responding party resides or works (O.C.G.A. § 9-11-45(b)(3)).
 
Moving to Quash or Modify a Subpoena Duces Tecum / Production Subpoena:
  1. Make the motion on or before the due date for the response to the subpoena (O.C.G.A. § 24-13-23(b))
 
Moving for a Protective Order for the Witness:
  1. Move to protect the person from whom it is sought with a protective order (O.C.G.A. § 9-11-26(c))
 
Special Considerations for Foreign Subpoenas:
  1. Georgia has adopted the Uniform Interstate Deposition and Discovery Act (O.C.G.A. § 24-13-112)
  2. Move to quash, modify, or apply for a protective order for subpoenas issued under this Act (O.C.G.A. § 24-13-116)
Subpoena Duces Tecum / Production Subpoena

• Compels production of documents and things at a specific time and place (O.C.G.A. § 24-13-23)
• Must include: name of the court, name of the clerk, title of the proceeding, name of the person being subpoenaed, date, time, and location for production, intended use of documents (O.C.G.A. § 24-13-21)
• Provide a minimum of 30 days for production (O.C.G.A. § 9-11-34)
• Must comply with pleading standards of Georgia Superior Court Rules (Ga. Unif. Super. Ct. R. 36.3)

 
Subpoena Ad Testificandum / Testimony Subpoena

• Compels attendance of a nonparty for deposition, hearing, or trial (O.C.G.A. § 9-11-45, O.C.G.A. § 24-13-22)
• Must include: name of the court, name of the clerk, title of the proceeding, name of the person being subpoenaed, date, time, and location for appearance, identification of the party using the testimony (O.C.G.A. § 24-13-21)
• Provide a minimum of 30 days for deposition subpoenas and 24 hours for hearing or trial subpoenas (O.C.G.A. § 9-11-34, O.C.G.A. § 24-13-26)
• Must comply with pleading standards of Georgia Superior Court Rules (Ga. Unif. Super. Ct. R. 36.3)

 
Motion Practice

• Motion to quash or modify can be made any time prior to the response time and date (O.C.G.A. § 24-13-23)
• Requesting party must show subpoena is reasonably calculated to lead to the discovery of admissible evidence and necessary for the resolution of the case (Anderson v. Mergenhagen, 642 S.E.2d 105, 111 (Ga. App. 2007))
• Court can require compensation for the producing party if subpoena is found to be unduly burdensome (O.C.G.A. § 24-13-23(b)(2))

 

Remember: Misuse or abuse of subpoenas can result in contempt of court and punishment by a fine of not more than $300 or 20 days' imprisonment, or both (O.C.G.A. § 24-13-21(h)).

Illinois Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
Requests for Admission
  • Responding
  • Propounding
1. Timing for Response:

The party to whom a request for admission is directed must respond within 28 days of service (Ill. Sup. Ct. R. 216(c)).

2. Filing and Serving Responses:

Responses to RFAs may not be filed with the court absent court order or authorization from an Illinois Supreme Court rule (Ill. Sup. Ct. R. 201(m)). Instead, file a certificate of service with the court indicating that a copy of the responses has been served on all parties (Ill. Sup. Ct. R. 201(m)).

3. Effect of Failure to Serve Timely Response and Extensions of Time:

Any RFAs that are not specifically denied or objected to within 28 days of service are deemed admitted (Ill. Sup. Ct. R. 216(c)). The 28-day deadline may be extended by the court for good cause shown (Ill. Sup. Ct. R. 183).

4. Permissible Responses to Requests for Admission:

A party responding to a request for admission must admit the truth of the alleged fact, submit a sworn statement denying the fact, set forth in detail the reasons why the party cannot admit or deny the relevant fact, or object to the request on the grounds that the request seeks privileged information, is irrelevant, or is otherwise improper (Ill. Sup. Ct. R. 216(c)).

5. Admissions:

Any fact that is admitted to in response to a request for admission—or is deemed admitted for failure to file a timely response—is conclusively established for all purposes in the litigation and cannot be challenged later by contradictory evidence (Ill. Sup. Ct. R. 216(e)).

6. Denials:

A responding party may submit a sworn statement denying the requested admission (Ill. Sup. Ct. R. 216(c)). Denials must be made in good faith, and if the responding party denies a request for admission and the requesting party subsequently proves the truth of the asserted fact, the requesting party may apply to the court for an order recovering its reasonable expenses, including reasonable attorney's fees (Ill. Sup. Ct. R. 219(b)).

7. Statement That Responding Party Can neither Admit nor Deny Request:

A party may respond to a request for admission by stating that it can neither admit nor deny the request, but must set forth, in detail, the reasons why it cannot admit or deny the request (Ill. Sup. Ct. R. 216(c)).

8. Objections
  1. Timeliness: The parties may not initiate discovery until all defendants have appeared or the time for all defendants to appear has expired, unless the court orders otherwise upon good cause shown (Ill. Sup. Ct. R. 201(d)). Discovery also should not delay the trial of a case unless the requesting party shows due diligence in seeking the requested discovery (Ill. Sup. Ct. R. 201(f)). You may have valid objections to requests that are served before all parties have appeared or that are served on the eve of trial.
  2. Excessive number of requests: A party may serve no more than 30 RFAs upon each party unless the parties agree on a greater number or the court orders a greater number after a showing of good cause (Ill. Sup. Ct. R. 216(f)). If a request for admission has subparts, each subpart constitutes a separate request for purposes of the 30-request limit (Ill. Sup. Ct. R. 216(f)).
  3. Improper format: The requesting party must prepare a separate document containing only the RFAs—RFAs may not be combined in a single document with another discovery device such as interrogatories or document requests (Ill. Sup. Ct. R. 216(g)). RFAs must also be served separately from other documents (Ill. Sup. Ct. R. 216(g)).
  4. Relevance: A party may obtain discovery only into matters that are relevant to the litigation (Ill. Sup. Ct. R. 201(b)(1)). RFAs are objectionable to the extent that they seek irrelevant information.
  5. Request calls for legal conclusion: RFAs may not be used to establish legal conclusions, as illustrated in Shred Pax, 184 Ill. 2d at 239. Thus, a request for admission may not seek an admission that failure to take an action constituted a breach of contract or that a party repudiated a contract (Shred Pax, 184 Ill. 2d at 241–42). You should object to requests to the extent they call for a legal conclusion.
  6. Undue burden: Requests may be objectionable if they are unduly burdensome, repetitive, or duplicative of other methods of discovery that the requesting party has used (Ill. Sup. Ct. R. 201(a)).
  7. Privilege: A party may object to a request if answering the request would disclose privileged information (Ill. Sup. Ct. R. 216(c), 201(b)(2)). The party asserting privilege must state the nature of the privilege claimed (e.g., whether the admission would violate attorney-client privilege or disclose attorney work product) (Ill. Sup. Ct. R. 201(n)).
  8. Failure to provide document: If a party serves a request for admission of the genuineness of a document, it is required to serve a copy of the document along with the request unless a copy of the document has previously been provided (Ill. Sup. Ct. R. 216(b)). You may object to a request for admission of the genuineness of a document if the party does not serve the relevant document along with the request.
9. Protective Orders:

If RFAs are particularly burdensome, objectionable, or intrusive, consider seeking a protective order in lieu of, or in addition to, serving objections to the requests (Ill. Sup. Ct. R. 201(c)(1)). Consult any applicable local rules and standing orders before seeking relief from the court.

1. Nature and Purpose of RFAs

Requests for Admission (RFAs) are a discovery tool used to establish the truth of certain facts or the genuineness of documents in a civil case (Ill. Sup. Ct. R. 216).

2. Timing Considerations
3. Permissible Scope

RFAs can be used to establish the truth of any relevant fact or the genuineness of any document (Ill. Sup. Ct. R. 216(b)).

4. Effect of an Admission

Admitted facts are conclusively established for all purposes in the litigation and cannot be challenged later by contradictory evidence (Ill. Sup. Ct. R. 216(e); Robertson v. Sky Chefs, Inc., 344 Ill. App. 3d 196, 199 (1st Dist. 2003)).

5. Guidelines for Drafting RFAs
  • Ensure each request seeks admission of a single, discrete factual statement.
  • Avoid vague or confusing language, superlatives, or statements of opinion.
  • Explain or define potentially ambiguous terms.
  • Avoid accusatory or inflammatory language.
  • Do not seek legal conclusions.
6. Serving RFAs
7. Sequencing Discovery
  • Parties may use various discovery methods in any order (Ill. Sup. Ct. R. 201(e)).
  • Consider serving RFAs at the start of discovery to narrow the scope of disputed facts or later in the discovery process after obtaining more information through other methods.
8. Requests regarding Genuineness of Documents

Attach a copy of the document to the RFA unless a copy has already been furnished to the relevant party (Ill. Sup. Ct. R. 216(b)).

9. Number and Format of RFAs
  • A party may serve no more than 30 RFAs on each party unless a higher number is agreed to or ordered by the court (Ill. Sup. Ct. R. 216(f)).
  • RFAs must be prepared in a separate document and not combined with other discovery devices (Ill. Sup. Ct. R. 216(g)).
  • Include the required warning statement on the first page of the RFA document (Ill. Sup. Ct. R. 216(g)).
10. Effect of a Party's Failure to Respond by Deadline
11. Court May Permit Untimely Responses for Good Cause
Requests for Production
  • Responding
  • Propounding
1. Overview

- Requests for Production (RFPs) are written requests for documents, objects, or tangible things relevant to a case (Ill. Sup. Ct. R. 214(a)).

- Examples of materials sought include papers, photographs, films, recordings, memos, books, records, accounts, communications, and electronically stored information (ESI) (Ill. Sup. Ct. R. 201(b)(1)).

2. Preservation

- Parties have a duty to preserve evidence that may be relevant to a lawsuit (Shimanovsky v. GMC, 181 Ill. 2d 112, 121–22 (1998)).

- The duty to preserve begins when litigation is reasonably anticipated (Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)).

- Inform clients of preservation obligations and consequences of destroying responsive materials.

- Issue a written litigation hold for corporate or organizational clients and ensure suspension of automatic deletion policies.

3. Deadline to Respond

- Parties must respond to RFPs within 28 days of service (Ill. Sup. Ct. R. 214(a)).

- Extensions and rolling productions can be negotiated if needed.

- If necessary, seek an extension from the court upon showing good cause (Ill. Sup. Ct. R. 183).

4. Drafting Responses to RFPs

- Respond to each RFP by either serving a written objection or identifying all materials in the client's possession that are responsive to the request (Ill. Sup. Ct. R. 214(c)).

5. Objections
  1. Relevance: RFPs must seek material relevant to the case (Ill. Sup. Ct. R. 214(a)). Courts may deny discovery if a party does not produce sufficient evidence that the requests seek relevant evidence or will lead to relevant evidence (In re All Asbestos Litig., 385 Ill. App. 3d 386, 389 (1st Dist. 2008)).
  2. Proportionality: RFPs must be proportional to the needs of the case (Ill. Sup. Ct. R. 201(c)(3)). RFPs are proportional if the likely benefits outweigh any burdens on the responding party (Ill. Sup. Ct. R. 201(c)(3)). You may object to RFPs that are not proportional (Ill. Sup. Ct. R. 214(c)). In weighing proportionality, courts must consider several factors, including the amount in controversy, parties' resources, importance of the issues in the litigation, importance of the discovery requests to the case, and the extent to which the RFPs invade the responding party's privacy (Carlson v. Jerousek 2016 IL App (2d) 151248, ¶ 41).
  3. Privilege: Parties may not obtain privileged material through discovery (Ill. Sup. Ct. R. 201(b)(2)). Object if the RFPs seek documents protected by the attorney-client privilege or attorney work product doctrine. When claiming privilege, describe the information withheld and state the asserted privilege (Ill. Sup. Ct. R. 201(n)).
  4. Timeliness: A party may not serve RFPs before all defendants have appeared or the time for all defendants to appear has expired unless the court orders otherwise (Ill. Sup. Ct. R. 201(d)). The court may not delay trial so that a party may complete discovery unless the party demonstrates due diligence in seeking discovery (Ill. Sup. Ct. R. 201(f)). Object if the requesting party serves RFPs too early or too late in a case.
  5. Vagueness or ambiguity: Object to a request if it is vague or ambiguous and you do not understand the documents the requesting party is seeking.
6. Protective Orders

- Courts can issue protective orders to prevent undue annoyance, expense, embarrassment, disadvantage, or oppression in discovery (Ill. Sup. Ct. R. 201(c)(1)).

- Confer with the propounding party and attempt to resolve disagreements before seeking a protective order (Ill. Sup. Ct. R. 201(k)).

7. Identifying and Producing Responsive Documents

- If no valid objections exist, parties must identify and produce all responsive materials in their possession or control (Ill. Sup. Ct. R. 214(c)).

- Produce responsive documents as the client keeps them in the ordinary course or organized and labeled to correspond to the categories in the RFPs (Ill. Sup. Ct. R. 214(c)).

- For ESI, produce documents in the form requested by the party or a reasonably usable form (Ill. Sup. Ct. R. 214(b)).

- Use Bates numbering for easier referencing and identification of the documents.

8. Motions to Compel and Sanctions

- If a party refuses to produce documents, the requesting party may move to compel production (Ill. Sup. Ct. R. 219(a)).

- The court may impose sanctions on the non-compliant party, including payment of the requesting party's reasonable expenses, attorney's fees, and other penalties (Ill. Sup. Ct. R. 219(c)).

9. Issues Relating to ESI

- Consider proportionality and negotiate search terms and forms of production when dealing with electronically stored information (Carlson v. Jerousek, 2016 IL App (2d) 151248, ¶ 47).

- Some categories of ESI are presumptively non-discoverable but may be discoverable if proportional to the needs of the case (Ill. Sup. Ct. R. 201(c) committee comments).

10. Filing and Service

- Do not file responses with the court unless ordered or authorized by rule (Ill. Sup. Ct. R. 201(m)).

- Serve responses on all parties entitled to notice (Ill. Sup. Ct. R. 214(c)).

- Electronic service is the default method, with alternative service methods available in certain circumstances (Ill. Sup. Ct. R. 11(c)).

11. Duty to Supplement

- Parties have an ongoing duty to supplement their responses if they obtain additional documents or other responsive material (Ill. Sup. Ct. R. 214(d)).

- Ensure clients are aware of the duty to supplement and inform you of any new documents that may be responsive to an RFP.

1. Overview of RFPs
2. Possession or Control
3. Relevance and Proportionality
4. Electronically Stored Information (ESI)
5. Nonparties
6. Timing and Sequencing
  • RFPs may not be served before all defendants have appeared or the time for all defendants to appear has expired, unless the court orders otherwise (Ill. Sup. Ct. R. 201(d))
  • Ensure compliance with deadlines in local rules, standing orders, or case management orders
  • RFPs can be used in any sequence (Ill. Sup. Ct. R. 201(e))
7. Drafting the Requests
  • Specify a reasonable time for compliance (at least 28 days), place for production, and manner of compliance (Ill. Sup. Ct. R. 214(a))
  • Include definitions, instructions, and requests in the RFPs
  • Be as specific and clear as possible to avoid objections based on vagueness or ambiguity
8. Filing and Service
9. Evaluating the Responses
10. Discovery Sanctions
  • Courts may impose sanctions for unreasonable conduct in discovery (Ill. Sup. Ct. R. 219(c))
  • Consider seeking sanctions if the opposing party refuses to produce responsive documents or serves meritless objections
Interrogatories
  • Responding
  • Propounding
I. Introduction
  • Interrogatories are written questions served by one party on another party in a lawsuit (Ill. Sup. Ct. R. 213(a)).
  • They are used to obtain information relevant to the litigation, such as identifying documents, tangible things, and individuals with relevant information (Ill. Sup. Ct. R. 201(b)(1)).
  • Responses to interrogatories can be used in the same way as deposition answers, such as to support a motion for summary judgment or impeach a witness at trial (Ill. Sup. Ct. R. 212(a), 213(h)).
II. Interrogatories to Identify Witnesses (Ill. Sup. Ct. R. 213(f))
  1. Lay Witnesses
    1. Definition: A witness that a party intends to call solely to give fact or lay opinion testimony (Ill. Sup. Ct. R. 213(f)(1)).
    2. Required Disclosure: Name, address, and subjects of testimony (Ill. Sup. Ct. R. 213(f)(1)).
  2. Independent Experts
    1. Definition: An expert witness who is not a party, current employee of a party, or a party's retained expert (Ill. Sup. Ct. R. 213(f)(2)).
    2. Required Disclosure: Name, address, subjects of testimony, and opinions to be elicited (Ill. Sup. Ct. R. 213(f)(2)).
  3. Controlled Experts
    1. Definition: An expert witness who is a party, current employee of a party, or a party's retained expert (Ill. Sup. Ct. R. 213(f)(3)).
    2. Required Disclosure: Name, address, subjects of testimony, conclusions and opinions, bases for those conclusions and opinions, qualifications, and any reports prepared about the case (Ill. Sup. Ct. R. 213(f)(3)).
  4. Effect of Responses on Testimony: A party's responses to witness interrogatories limit the testimony the party's witnesses can offer at trial (Ill. Sup. Ct. R. 213(g)).
III. Deadline to Respond
  1. 28 days from service (Ill. Sup. Ct. R. 213(d)).
  2. Extensions may be granted for good cause (Ill. Sup. Ct. R. 183).
IV. Formatting and Drafting Responses (Ill. Sup. Ct. R. 213(d))
  1. Reproduce each interrogatory before the response.
  2. Respond with an objection or answer.
V. Objections (Ill. Sup. Ct. R. 213(d))
  1. Timeliness: A party may object to interrogatories served before all defendants have appeared or the time for all defendants to appear has expired (Ill. Sup. Ct. R. 201(d)). Additionally, the court may not delay trial to permit discovery unless the party seeking discovery demonstrates that they exercised due diligence (Ill. Sup. Ct. R. 201(f)).
  2. Excessive Number of Requests: Parties cannot serve more than 30 interrogatories without the agreement of the responding party or leave of court (Ill. Sup. Ct. R. 213(c)). Note that each subpart counts as a separate interrogatory for purposes of the 30-interrogatory limit (Ill. Sup. Ct. R. 213(c)).
  3. Privilege: A party may object to interrogatories seeking information protected by the attorney-client privilege or attorney work product doctrine (Ill. Sup. Ct. R. 201(b)(2)). When claiming privilege, the responding party must describe the withheld information and specify the claimed privilege (Ill. Sup. Ct. R. 201(n)).
  4. Relevance: Parties may only obtain discovery into matters relevant to the litigation (Ill. Sup. Ct. R. 201(b)(1)). Interrogatories are objectionable if they seek irrelevant information.
  5. Undue Burden: Attorneys have a duty to avoid causing undue burden and unnecessary expense (Ill. Sup. Ct. R. 213(b)). Objections can be made if the interrogatories impose an unreasonable burden on the responding party.
  6. Proportionality: A court may deny discovery if the likely burden on the responding party outweighs any benefit to the propounding party (Ill. Sup. Ct. R. 201(c)(3)). A valid objection may arise if an interrogatory requires the responding party to conduct a substantial investigation into matters with limited relevance to the case.
VI. Protective Orders (Ill. Sup. Ct. R. 201(c)(1))
  1. May be sought to deny, limit, or regulate discovery to prevent undue annoyance, expense, embarrassment, disadvantage, or oppression.
  2. Must attempt to resolve the disagreement before seeking a protective order (Ill. Sup. Ct. R. 201(k)).
VII. Answering Interrogatories (Ill. Sup. Ct. R. 213(d))
  1. Answer fully and in good faith, providing information available to you or your client to the extent of your knowledge.
  2. Evasive answers are disapproved by courts (Pryor v. Am. Cent. Transp., 260 Ill. App. 3d 76, 84 (5th Dist. 1994)).
VIII. Producing Documents in Response to Interrogatories (Ill. Sup. Ct. R. 213(e))
  1. Produce documents as an answer if they contain the information requested.
  2. Identify specific documents that answer the interrogatory (Simpkins, 2017 IL App (5th) 160478, ¶ 41).
IX. Verification (Ill. Sup. Ct. R. 213(d))
  1. Client must submit sworn answers to interrogatories.
  2. Certification pursuant to Section 5/1-109 of the Illinois Code of Civil Procedure satisfies the requirement (735 ILCS 5/1-109).
X. Service of Interrogatory Responses (Ill. Sup. Ct. R. 201(m), 213(a))
  1. Do not file responses with the court unless ordered or authorized by rule.
  2. Serve responses on all parties and file a certificate of service.
XI. Duty to Supplement (Ill. Sup. Ct. R. 213(i))
  1. Mandatory duty to supplement interrogatory responses with new or additional information.
  2. Serve new responses when aware of information that materially alters or adds to a prior response.
1. Purpose of Interrogatories
  • Obtain relevant information in litigation (Ill. Sup. Ct. R. 201(b)(1))
  • Discover the existence, description, custody, or location of documents or tangible things, and the identity and location of individuals with relevant information (Ill. Sup. Ct. R. 201(b)(1))
2. Limitations on Interrogatories
3. Timing for Interrogatories
  • Cannot serve before all defendants have appeared or the time for all defendants to appear has expired (Ill. Sup. Ct. R. 201(d))
  • Serve interrogatories in a timely manner to receive responses well in advance of trial date and comply with deadlines in local rules, standing orders, or case management orders (Ill. Sup. Ct. R. 201(f), 218(c))
4. Drafting Interrogatories
  • Use straightforward, unambiguous, and single-topic questions
  • Tailor interrogatories to the facts and circumstances of your case
  • Consider common topics such as information about an event, personal information, sources of documents, names of witnesses, claimed damages, etc.
  • Write simple, non-compound questions
5. Definitions and Instructions
  • Preface interrogatories with a set of definitions and instructions to clarify any ambiguities and define relevant terms
  • Minimize objections by providing clear explanations and avoiding vague or confusing language
6. Identifying Witnesses through Interrogatories
7. Serving Interrogatories
8. Responding to Objections

Louisiana Discovery Cheat Sheet

  • Requests for Production
  • Interrogatories
  • Subpoenas
Requests for Production
  • Responding
  • Propounding
1. Responding to Document Requests
2. Timing
  • Serve request for production upon the plaintiff after commencement of the action and any other party with or after service of the petition upon that party (La. Code Civ. Proc. Ann. art. 1462(A))
3. Scope
4. Drafting the Response
5. Producing Documents
6. Objection Overview
7. Objections
  1. Nonexistence of the document
  2. Document not in possession, custody, or control
  3. Request beyond the scope of discovery
  4. Request is vague and not described with "reasonable particularity"
  5. Request is unduly burdensome
  6. Requested material is privileged
8. Organizing Documents to Be Produced
Applicable Rules:

- La. Code Civ. Proc. Ann. arts. 1461 and 1462 govern Requests for Production (RFPs) in Louisiana district court.

- A party may serve RFPs on any other party to inspect, copy, or permit entry onto designated land or property (La. Code Civ. Proc. Ann. art. 1461).

- A written response is required within 30 days of service of the request (La. Code Civ. Proc. Ann. art. 1462(B)(1)).

Scope of Documents and Data:

- Discovery includes all non-privileged, relevant evidence that either would be admissible at trial or "appears reasonably calculated to lead to the discovery of admissible evidence" (La. Code Civ. Proc. Ann. art. 1422).

Signature Requirement:

- Every discovery request or response made by a represented party must be signed by at least one attorney of record (La. Code Civ. Proc. Ann. art. 1420(A)).

- Unrepresented parties must sign the request, response, or objection and state their address (La. Code Civ. Proc. Ann. art. 1420(A)).

Deadline to Respond:

- 30 days for the response to RFP (La. Code Civ. Proc. Ann. art. 1462(B)(1)).

- Parties may stipulate to a different time frame or a court order may alter the deadlines.

Documents in Party's Control:

- Parties must produce or make available documents and tangible things in their possession, custody, or control (La. Code Civ. Proc. Ann. art. 1461).

- There is no duty to supplement discovery responses, except in limited situations (La. Code Civ. Proc. Ann. art. 1428).

Undue Burden:

- Objections may be made in responses, but the reason(s) for any objections must be set forth in the response (La. Code Civ. Proc. Ann. art. 1462(B)(1)).

- If a request is burdensome, the opposing party may file a motion for a protective order under La. Code Civ. Proc. Ann. art. 1426.

Request Requirements:

- Requests must specify with reasonable particularity each item or category of items to be inspected (La. Code Civ. Proc. Ann. art. 1462(A)).

- Requests must specify a reasonable time, place, and manner for the inspection and performing the related acts (La. Code Civ. Proc. Ann. art. 1462(A)).

- Requests may specify the form or forms in which electronically stored information is to be produced (La. Code Civ. Proc. Ann. art. 1462(A)).

Instructions:

- RFP instructions can be used to define the scope of the requests and specify the form(s) in which the party is to produce ESI (La. Code Civ. Proc. Ann. art. 1462(A)).

Service Requirements:

- Requests for production may be served on another party without leave of court (La. Code Civ. Proc. Ann. art. 1462(A)).

- Requests for production must be served upon all parties but should not be filed (La. Code Civ. Proc. Ann. art. 1474(B)).

Interrogatories
  • Responding
  • Propounding
Protective Orders

- A court may enter a protective order to limit the scope of discovery and ensure proper use (La. Code Civ. Proc. Ann. art. 1426)
- Protective orders can preclude discovery, specify terms, limit the scope, designate who may be present, require deposition sealing, protect trade secrets, and provide for simultaneous filing (La. Code Civ. Proc. Ann. art. 1426(A))

Applicable Rules

- Articles 1457-1460 govern interrogatories in Louisiana district courts (La. Code Civ. Proc. Ann. art. 1457-1460)
- Interrogatories must be answered by the party to whom they are directed or by an officer or agent for corporations, partnerships, associations, or governmental agencies (La. Code Civ. Proc. Ann. art. 1457(A))
- Each interrogatory must be answered separately and fully in writing under oath, and objections must state the reasons (La. Code Civ. Proc. Ann. art. 1458(A))

Scope of Interrogatories

- Interrogatories may relate to any matter, not privileged, relevant to the claims and defenses of any party (La. Code Civ. Proc. Ann. art. 1422)

Timing

- Interrogatories can be served at any time after the commencement of the suit (La. Code Civ. Proc. Ann. art. 1457(A))
- Answers must be served within 30 days of the service of the interrogatories, unless the court orders otherwise (La. Code Civ. Proc. Ann. art. 1458(A))

Objections

1. Irrelevant or Not Reasonably Calculated to Lead to Admissible Evidence
- Interrogatories must relate to any matter, not privileged, relevant to the claims and defenses of any party (La. Code Civ. Proc. Ann. art. 1422)
- If an interrogatory seeks information that is not relevant or reasonably calculated to lead to admissible evidence, an objection can be lodged (La. Code Civ. Proc. Ann. art. 1458(A))

2. Privileged Information
- If an interrogatory seeks information that is protected by a privilege (e.g., attorney-client, work product), an objection can be lodged (La. Code Civ. Proc. Ann. art. 1424(C))
- When objecting on grounds of privilege, describe the nature of the documents without revealing privileged information (La. Code Civ. Proc. Ann. art. 1424(C))

3. Overly Broad or Unduly Burdensome
- If an interrogatory is overly broad or unduly burdensome, an objection can be lodged (La. Code Civ. Proc. Ann. art. 1458(A))
- Explain why the interrogatory is overly broad and provide information responsive to those portions of the interrogatory that are not objectionable (La. Code Civ. Proc. Ann. art. 1458(A))

4. Vague or Ambiguous
- If an interrogatory is vague or ambiguous, making it difficult to provide a clear and concise answer, an objection can be lodged (La. Code Civ. Proc. Ann. art. 1458(A))

5. Asked and Answered
- If an interrogatory seeks information that has already been provided in response to a previous interrogatory or request for production, an objection can be lodged (La. Code Civ. Proc. Ann. art. 1458(A))

6. Exceeds Presumptive Limit
- If the interrogatory causes the total number of interrogatories served to exceed the presumptive limit of 35, an objection can be lodged (La. Code Civ. Proc. Ann. art.1457(B) and La. Dist. Ct. R. 10.0)

7. Calls for Expert Opinion
- If an interrogatory seeks an expert opinion from a non-expert party, an objection can be lodged (La. Code Civ. Proc. Ann. art. 1458(A))

When lodging an objection, it is important to clearly state the objection, the specific reasons for the objection, and whether the objection pertains to all or part of the interrogatory (La. Code Civ. Proc. Ann. art. 1458(A)). The burden falls on the interrogating party to move to compel answers if an objection has been lodged (La. Code Civ. Proc. Ann. art. 1469).

Presumptive Limits

- A party cannot serve more than 35 interrogatories, in one or more sets, without leave of court or agreement of the parties (La. Code Civ. Proc. Ann. art.1457(B) and La. Dist. Ct. R. 10.0)

Answering with Business Records

- If the answer can be determined by examining business records, the responding party may specify the records and give the interrogating party a reasonable opportunity to examine and audit the records (La. Code Civ. Proc. Ann. art. 1460)

Signing Requirements

- The person who makes the answers must sign them under oath (La. Code Civ. Proc. Ann. art. 1458(A))
- The attorney of record must sign the interrogatory objections (La. Code Civ. Proc. Ann. art. 1420(A))

Proper Objections

- State the reasons for the objection in lieu of an answer (La. Code Civ. Proc. Ann. art. 1458(A))
- The burden falls on the interrogating party to move to compel answers (La. Code Civ. Proc. Ann. art. 1469)
- For objections on grounds of privilege or work product, describe the nature of the documents without revealing privileged information (La. Code Civ. Proc. Ann. art. 1424(C))

Response Format

- Repeat the language of each interrogatory and follow with the specific response (La. Code Civ. Proc. Ann. art. 1458(A))

Verification

- Each interrogatory must be answered under oath by the party or by an officer, agent, or representative for entities (La. Code Civ. Proc. Ann. art. 1458(A))

Signature Block

- Discovery requests or objections must be signed by at least one attorney of record or by the unrepresented party (La. Code Civ. Proc. Ann. art. 1420(A))

Service Requirements

- Serve answers and objections within 30 days after being served with the interrogatories, unless stipulated or ordered otherwise (La. Code Civ. Proc. Ann. art. 1458(A))
- Responses and objections must be served upon all parties but should not be filed (La. Code Civ. Proc. Ann. art. 1474(B))
- Prepare a proof of service signed by the attorney who served the documents (La. Code Civ. Proc. Ann. art. 1313(B))

Applicable Rules:
  1. Articles 1457-1460 govern interrogatories in Louisiana district courts.
  2. Any party may serve written interrogatories upon any other party after the commencement of suit without leave of court (La. Code Civ. Proc. Ann. art. 1457(A)).
  3. Answers must be served within 30 days of the service of the interrogatories unless the court orders otherwise (La. Code Civ. Proc. Ann. art. 1458(A)).
  4. Answers must be made under oath and may be used to the extent allowed by the law of evidence (La. Code Civ. Proc. Ann. art. 1458(A); La. Code Civ. Proc. Ann. art.1459).
Scope of Interrogatories:
Number of Interrogatories Allowed:
Answering with Business Records:
  • A party may produce records in lieu of answering an interrogatory but must be the "business records" of the party answering the interrogatories (La. Code Civ. Proc. Ann. art. 1460).
Signature Requirement:
  • Every discovery request made by a represented party must be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated (La. Code Civ. Proc. Ann. art. 1420(A)).
  • A party who is not represented by an attorney shall sign the request, response, or objection and state the party's address (La. Code Civ. Proc. Ann. art. 1420(A)).
Service Requirements:
Subpeonas
  • Responding
  • Propounding
Responding to a Subpoena:
  1. Review the subpoena for compliance with court rules (La. Code Civ. Proc. Ann. arts. 1351, 1354, 1356).
  2. Note the general principles on the use of subpoenas in Louisiana.
  3. Ensure the subpoena meets the requirements under La. Code Civ. Proc. Ann. art. 1351.
  4. Consider the four options for responding to a subpoena: comply, object, move to quash or modify, or move for a protective order (La. Code Civ. Proc. Ann. art. 1354).
  5. Be aware of interstate subpoenas and the Uniform Interstate Depositions and Discovery Act (La. Rev. Stat. Ann. § 13:821 et seq.).
  6. Understand the rules for subpoenas duces tecum (La. Code Civ. Proc. Ann. art. 1354(A)).

Complying with a Subpoena:
  1. Follow the procedures for compliance depending on the type of subpoena (La. Code Civ. Proc. Ann. arts. 1351, 1354, 1356)..
  2. Be aware of the attorney's obligation to avoid undue burden or expense on the person subject to a subpoena (La. Code Civ. Proc. Ann. art. 1354(A)).
  3. Produce documents or electronically stored information as required by La. Code Civ. Proc. Ann. art. 1354(C)-(F).

Resisting Compliance with a Subpoena:
  1. Consider the grounds for resisting compliance, including improper service, lack of possession or control, inaccessibility, privilege, or undue burden or expense (La. Code Civ. Proc. Ann. arts. 1354, 1355, 1424, 1426).
  2. Understand the rules for inaccessible electronically stored information (La. Code Civ. Proc. Ann. art. 1354(D)-(F)).
  3. Be aware of the protections against annoyance, embarrassment, oppression, or undue burden or expense (La. Code Civ. Proc. Ann. arts. 1354(A), 1354(F), 1426).

Objections:
  1. Improper Service: If the issuing party did not properly serve the subpoena, you can object based on improper service (La. Code Civ. Proc. Ann. art. 1355).
  2. Lack of Possession, Custody, or Control: If the subject does not have possession, custody, or control of the materials demanded by the subpoena, you can object on this ground (La. Code Civ. Proc. Ann. art. 1354(A)).
  3. Inaccessible Electronically Stored Information (ESI): If the subpoena requests production of inaccessible ESI, you can object based on inaccessibility (La. Code Civ. Proc. Ann. art. 1354(F)).
  4. Privileged or Trial Preparation Materials: If the materials sought are privileged or subject to protection as trial preparation materials, you can object on this ground (La. Code Civ. Proc. Ann. art. 1424).
  5. Undue Burden or Expense: If complying with the subpoena would subject the responding party to annoyance, embarrassment, oppression, or undue burden or expense, you can object on this ground (La. Code Civ. Proc. Ann. art. 1426).

When objecting to a subpoena, it is important to serve the objection within 15 days of the service of the subpoena, or before the time of compliance if it is less than 15 days after service (La. Code Civ. Proc. Ann. art. 1354(B))


Motions to Resist a Subpoena:
  1. File a motion to quash or modify the subpoena, or move for a protective order (La. Code Civ. Proc. Ann. art. 1354(B)).
  2. Understand the court's authority to quash or modify a subpoena (La. Code Civ. Proc. Ann. art. 1354(A)).
  3. Consider moving for a protective order under La. Code Civ. Proc. Ann. art. 1426 or seeking coverage under a previous discovery or procedural order.
  4. Propose an order that best protects your client's interests.
Types of Discovery Subpoena:
  1. Appear and give testimony
  2. Produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information (ESI), or tangible things
  3. Permit inspection of premises
(La. Code Civ. Proc. Ann. arts. 1351, 1354, 1356)
Rules Governing Subpoenas:
  1. Issued by the clerk or judge of the court in which the action is pending, at the request of a party (La. Code Civ. Proc. Ann. art. 1351)
  2. Deposit with the clerk a sum of money sufficient to pay all fees and expenses to which the witness is entitled (La. Code Civ. Proc. Ann. art. 1353)
  3. Take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena (La. Code Civ. Proc. Ann. art. 1354(A))
Electronically Stored Information (ESI):
  1. Specify the form or forms in which it is to be produced (La. Code Civ. Proc. Ann. art. 1354(A))
  2. If not specified, the subpoena recipient may produce the ESI in a form or forms in which it is ordinarily maintained or any other reasonably usable form (La. Code Civ. Proc. Ann. art. 1354(D))
  3. Witness does not need to produce the same ESI in more than one form or ESI from sources that the witness identifies as not reasonably accessible due to undue burden or cost (La. Code Civ. Proc. Ann. arts. 1354(E)-(F))
Notice to Other Parties:
  1. Give reasonable notice in writing to every other party to the action (La. Code Civ. Proc. Ann. art. 1438)
  2. Notice must state the date, time, and place for taking the deposition, the name and address of each witness, and designate the materials to be produced if a subpoena duces tecum was included with the deposition subpoena (La. Code Civ. Proc. Ann. art. 1438)
Drafting and Serving the Subpoena:
  1. Issue under the seal of the court, state the name of the court, state the title of the action, and command the attendance of the witness at a specific time and place, until discharged (La. Code Civ. Proc. Ann. art. 1351)
  2. A subpoena duces tecum must also include the entire text of Article 1354 (La. Code Civ. Proc. Ann. art. 1354(H))
Serving a Subpoena:
  1. Serve and return in the same manner as service of a citation (La. Code Civ. Proc. Ann. art. 1355(A))
  2. If the sheriff has not made service within 5 days, or is unable to make service, service may be made by any person over the age of majority, who is not a party to the case, and who resides in Louisiana (La. Code Civ. Proc. Ann. art. 1355(B))
  3. Proof of service must be signed by the person who made service, be notarized, and be filed with the clerk of the court by which the subpoena is issued (La. Code Civ. Proc. Ann. art. 1355(B))
Time for Service:
  1. Provide a reasonable time for the nonparty to comply with the subpoena (La. Code Civ. Proc. Ann. arts. 1354(A), 1356(B))
Subpoenaing Out-of-State Witnesses:
  1. Present a Louisiana subpoena to the clerk of the court of the foreign jurisdiction, which will issue and serve a subpoena to the individual named therein (La. Rev. Stat. Ann. § 13:3823)
Motion to Compel:
  1. Make a motion to compel to obtain the documents sought if a nonparty served with a subpoena duces tecum objects to the subpoena (La. Code Civ. Proc. Ann. art. 1356(B))
  2. A motion to compel a nonparty must be made in the court where discovery is or will be taken (La. Code Civ. Proc. Ann. art. 1469(1))
Motion for Contempt:
  1. The issuing court may hold a person in contempt if they refuse to comply with a subpoena or an order relating to a subpoena without adequate excuse (La. Code Civ. Proc. Ann. art. 1357)
Appealing Subpoena-Related Rulings:
  1. An appeal may be taken only from a final order or judgment (La. Code Civ. Proc. Ann. art. 2083(A))
  2. A contempt order that imposes sanctions may be deemed an appealable final judgment under La. Code Civ. Proc. Ann. art. 1915(A)(6), depending on the punishment

Maryland Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
Requests for Admission
  • Overview
1. Purpose of Requests for Admission (RFAs)

- To eliminate the need for other discovery, pretrial preparation, and presentation of undisputed evidence at trial
- To identify genuinely disputed issues for trial
- To authenticate records and documents, especially in cases involving large volumes of documents
- To force a party to commit to the veracity of certain facts, opinions, or conclusions uncovered through other discovery methods (Murnan v. Joseph J. Hock, Inc. 274 Md. 528, 533 (1975))

2. Applicable Rules

- Md. Rule 2-424: Permits litigants to request that their opponents admit the genuineness of any relevant documents or electronically stored information, or the truth of any relevant matters of fact set forth in the request
- Relevance: Matters within the scope of discovery under Md. Rule 2-402
- Matters of fact: The rule does not permit RFAs of ultimate facts or the application of law to fact (Greenbriar Condo., Phase I, Council of Unit Owners, Inc. v. Brooks, 159 Md. App. 275, 321 (2004))

3. Formatting

- Each matter for which an admission is requested must be separately stated, followed by sufficient space for a respondent to answer
- The request must be signed by the propounding party or their attorney (Md. Rule 1-311(a))

4. Deadline for Responses

- 30 days after service of the request, or within 15 days after the date on which the party's initial pleading or motion is required, whichever is later (Md. Rule 2-424(b))

5. Form of Requests and Responses

- Requests should be unambiguous, clear, and concise
- Responses should state an objection, admit or deny each matter, or state the reason why the respondent cannot truthfully admit or deny each matter (Md. Rule 2-424(b))

6. Drafting Requests for Admission

- Begin with instructional and definitional sections
- Organize facts by issues that can be proved or disproved
- Create issue-fact outlines for ease of use
- Draft the request so that a "yes" or "no" answer is the equivalent of an admission or denial
- Requests need to be precise and direct

7. Multiple Sets of Requests for Admission

- No limit on the number of RFAs that may be propounded
- Any party who believes that multiple sets of RFAs are excessive and unreasonable must file a motion for a protective order

8. Filing and Service

- Serve requests on all parties (Md. Rule 1-321(a))
- File a notice with the court stating the type of discovery material served, the date and manner of service, and the person or party served (Md. Rule 2-401(d)(2))

9. Challenging Inadequate Responses

- Challenges to responses must be made by motion (Md. Rule 2-424(c))

10. Preparing to Respond

- Review all of the requests before responding
- Review all of the discovery information generated in the case
- Determine if any of the admissions are harmful to your case

11. Drafting Responses

- Title effectively
- Use the opening paragraph(s) to add further clarity
- Use uncomplicated language to admit or deny
- Provide clear reasons for your inability to admit or deny

12. Objections:
  1. Relevance: A responding party may object to an RFA if the requested admission is not relevant to the subject matter of the litigation or is not reasonably calculated to lead to the discovery of admissible evidence (Md. Rule 2-402(a)). For example, a responding party may object if the RFA seeks to admit facts that have no bearing on the claims or defenses in the case (Murnan v. Joseph J. Hock, Inc. 274 Md. 528, 533 (1975)).
  2. Vagueness or Ambiguity: A responding party may object to an RFA if the request is vague or ambiguous, making it difficult to provide a clear and direct response (Johnstone v. Cronlund, 25 F.R.D. 42, 46 (E.D. Pa. 1960)). In such cases, the responding party should clearly state the basis of their objection and specify the particular language that is vague or ambiguous.
  3. Privileged Information: A responding party may object to an RFA if the requested admission seeks information that is protected by a recognized privilege, such as attorney-client privilege or work product doctrine. In this case, the responding party should identify the specific privilege being asserted and explain why the requested information falls within the scope of that privilege.
  4. Undue Burden or Expense: A responding party may object to an RFA if complying with the request would impose an undue burden or expense on the party. The party should specify the nature of the burden or expense and explain why compliance with the request would be unreasonable under the circumstances (Md. Rule 2-402(d)).
  5. Legal Conclusions or Opinions: A responding party may object to an RFA that seeks an admission of legal conclusions or opinions. RFAs should be limited to factual matters, and requests for admissions of legal conclusions or opinions may be deemed improper (Lehmann v. Harner, 31 F.R.D. 303, 303 (D. Md. 1962)).
  6. Compound Requests: A responding party may object to an RFA that contains multiple requests within a single question, as this can make it difficult for the party to provide a clear and direct response (Md. Rule 2-424(a)). In such cases, the responding party should specify which part of the compound request is objectionable and request that the propounding party rephrase the request into separate, distinct questions.
  7. Overly Broad or Unduly Intrusive: A responding party may object to an RFA if the request is overly broad or unduly intrusive, seeking information that goes beyond the reasonable scope of discovery (Md. Rule 2-402(a)). In these instances, the responding party should specify the basis of the objection and explain why the request is overly broad or unduly intrusive.
13. Seeking Withdrawal or Amendment of Admission

- An admission is conclusive for purposes of the pending action unless the court permits it to be withdrawn (Md. Rule 2-424(d))
- The court may permit withdrawal if it finds that withdrawal would assist in the presentation of the merits of the action and the party who obtained the admission has failed to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merit

Requests for Production
  • Responding
  • Propounding
1. Preserve Relevant Evidence
  • Send a litigation hold notice to your client as soon as possible
  • Instruct client to preserve documents, suspend destruction procedures, and take necessary steps to preserve evidence
2. Timing for Responses
  • Respond within 30 days of service or 15 days after the date on which the party's initial pleading or motion is required (Md. Rule 2-422(c))
  • Notice of deposition must be served at least 30 days prior to the deposition (Md. Rule 2-412(c))
3. Scope of Discovery
  • Broad discovery allowed, limited to matters relevant to any party's claim or defense (Md. Rule 2-402(a))
  • Exception for materials prepared in anticipation of litigation or trial (Md. Rule 2-402(d))
4. Electronic Discovery
5. Drafting the Response
  • Include a caption and title, general and specific responses and objections, and a signature block (Md. Rule 1-311(a))
  • State reasons for refusal and form of production if applicable (Md. Rule 2-422(c))
  • Organize documents according to the categories in the request (Md. Rule 2-422(d))
6. Objections

1. Nonexistence (Pleasant v. Pleasant, 97 Md. App. 711, 732 (1993)): If a document does not exist, there are three possible explanations: it was never created, it was created but subsequently lost, or it was created but subsequently destroyed. Describe the efforts made to find the document or your client's record retention policy, if applicable.

2. Lack of possession or control (Pleasant v. Pleasant, 97 Md. App. 711, 732 (1993)): Documents and tangible things that may be required to be produced or made available are those that are "in the possession, custody or control of a party." This language indicates that a party may be required to obtain a document from another person or entity to comply with the request.

3. Beyond the scope of discovery (Md. Rule 2-402(a)): If the requested material is not reasonably calculated to lead to the discovery of admissible evidence, you must explain why it is not within the scope of discovery. The scope of discovery is limited to matters relevant to any party's claim or defense.

4. Vague and not described with "reasonable particularity": Explain why you cannot respond with the description provided in the request. The requesting party must describe the requested documents with reasonable particularity, as required by Md. Rule 2-422(a).

5. Unduly burdensome (Md. Rule 2-402(b)(2)): If the production of requested information would cause undue burden or cost, identify the sources of information alleged not to be reasonably accessible and explain why production from each identified source would cause undue burden or cost. The rule requires a detailed statement of reasons to enable the requesting party to evaluate the burdens, costs, and the likelihood of finding responsive information in the identified sources.

6. Privileged (Md. Rule 2-402(e)(1)): If the requested material is privileged, such as attorney-client privilege or the work product doctrine, provide a privilege log that describes the nature of the documents, communications, or things not produced in a manner that, without revealing the privileged information, enables the requesting party to assess the application of the privilege or protection.

7. Producing Documents Despite Objections
  • State that production will be provided subject to and without waiving the objection
  • Specify the documents to be produced if applicable
8. Organizing Documents to Be Produced
  • Follow the form specified in the RFP or state the form to be used if not specified (Md. Rule 2-422(c))
I. Making Document Requests (Md. Rule 2-422(a))
  • A. Purpose of document requests
    1. Obtain tangible evidence from opponents or other parties
    2. Includes letters, reports, photographs, computer disks, medical slides, videotape, notes, machinery, etc.
  • B. Assess your client's litigation goals and financial resources
    1. Determine client's financial resources, cost sensitivities, appetite for protracted litigation, and willingness to settle early
    2. Prepare a discovery budget detailing estimated costs for each document discovery phase (review, production, motions)
    3. Update the budget frequently to manage client's expectations
  • C. Tailor the document requests
    1. Identify types of documents and information needed to prove claims, defenses, and damages
    2. Identify material that may help prove or disprove material facts at issue
    3. Review initial pleadings, evidence relied upon in similar cases, and admissible evidence
  • D. Consider electronic discovery
    1. Determine whether requests will include electronic discovery requests
    2. Governed by Md. Rule 2-422(a) and Md. Rule 2-402(a)
    3. Consider scheduling a pretrial discovery conference for substantial electronic discovery
II. Applicable Rules
  • A. Md. Rule 2-422: Production and inspection of documents and tangible things
    1. Regulates procedure for production and inspection in civil actions and proceedings
    2. Requests can only be directed by one party to another party
  • B. Md. Rule 2-510: Subpoenas for nonparty witnesses
    1. Used to procure the production of documents from nonparty witnesses or anyone else at a hearing or trial
    2. Requires a subpoena to compel nonparty to produce documents and other tangible things at a deposition
III. Documents and Data
  • A. Types of discoverable documents and data
    1. Physical (hard copy) documents
    2. Digital files
    3. Audio, photographic, and video recordings
    4. Originals and copies of documents
    5. Digital files in native format (including metadata)
    6. Documents and files in specific program formats (Word, Excel, Quickbooks, PDF, etc.)
    7. Social media posts, blog entries, texts or instant messages, screenshots, correspondence, and email
    8. Interoffice memoranda, meeting minutes, and handwritten notes
  • B. Signature requirement (Md. Rule 1-311(a))
    1. Document request must be signed by an attorney of record or by the party if unrepresented
    2. Without a signature, the request may be disregarded
  • C. Deadline to respond (Md. Rule 2-422(c))
    1. Party must respond within 30 days of service of the request or 15 days after the date on which the party's initial pleading or motion is required
    2. Response must state that production will be provided as requested or the reasons for refusal to make production
  • D. Documents in party's control (Md. Rule 2-422(a))
    1. Production extends to items in control of a party
    2. Party may be required to obtain documents from another person or entity to comply with the request
  • E. Undue burden (Md. Rule 2-402(b)(2))
    1. Party objecting to producing information due to undue burden or cost must identify sources of information and reasons for the burden or cost
    2. Court may order discovery if benefits outweigh costs, setting conditions and assessing costs as appropriate
IV. Coordinated with Depositions
  • A. Use document requests before and after depositions
    1. Obtain documents or tangible evidence before depositions to prepare
    2. Draft and serve a request for production of evidence discovered during deposition
  • B. Investigate and organize prior to serving requests
    1. Identify and organize possible documents pertinent to the case
    2. Review client's files, pleadings, motions, discovery requests and answers, state and federal law, government documents, and similar litigation
    3. Discuss documents with client, friendly fact witnesses, and expert consultants
V. Drafting Document Requests
  • A. Caption and title
  • B. Demand
    1. Specify the time, place, and manner of the production or inspection
    2. Coordinate with opposing counsel to set a reasonable time, place, and manner for the production
  • C. Definitions
    1. Define key terms, abbreviations, and events
    2. Define document, person, concerning/related to/regarding, singular/plural, past tense/present tense, masculine and feminine pronouns, and abbreviations
  • D. Instructions
    1. Define the scope of the requests and specify the form(s) in which ESI is to be produced
    2. Include instructions for written responses, privilege claims, lost or destroyed documents, and applicable time period
  • E. Requests (Md. Rule 2-422(b))
    1. Detail each request in a separately numbered paragraph
    2. Organize requests by pleadings, cause of action, or chronologically
    3. Request any type of document, including correspondence, bank records, contracts, social media records, transcripts, corporate books and records, and photographs
VI. Scope of Document Requests
  • A. Describe as precisely as possible what you are requesting
    1. Use dates and specific descriptions to narrow requests
    2. Avoid broad and general requests that may lead to objections or voluminous production of irrelevant documents
  • B. Generic document requests
    1. Useful for obtaining items applicable to any litigation
    2. Include requests for documents relied on to prepare pleadings, interrogatory responses, and other discovery responses; documents supporting claims, defenses, or allegations; communications between key actors; witness and party statements; expert witness documents; and documents intended for use at trial
  • C. Specific document requests
    1. Tailor requests to the facts of your case
    2. Identify issues in your case and types of documents needed to address those issues
    3. Include a specific request for each key fact in your case
VII. Service Requirements (Md. Rule 1-321(a))
  • A. Serve requests on all parties
  • B. File notice with the court (Md. Rule 2-401(d)(2))
    1. State the type of discovery material served, date and manner of service, and person or party served
    2. Serve the certificate on all parties
Interrogatories
  • Responding
  • Propounding
Protective Orders (Md. Rule 2-403)
  • Limiting scope of discovery
  • Protecting parties from annoyance, embarrassment, oppression, or undue burden
  • Stipulating to protective orders for trade secrets and confidential information
Topics
  • Personal background
  • Event details
  • Identifying information about parties, witnesses, and experts
  • Information about relevant documents, correspondence, photographs, etc.
  • Admissions, prior claims, prior crimes, insurance coverage, and financial condition
Applicable Rules (Md. Rule 2-421)
  • Responding party must answer or provide specific objection
  • Answers must be made under oath
  • Separate and full responses required for each interrogatory
  • Duty to supplement responses if new information becomes available or initial response is no longer accurate
Timing
  • 30 days from service of interrogatories (Md. Rule 2-421(b))
  • 15 days for defendants after the date on which their initial pleading or motion is required
Number of Interrogatories Allowed
  • Maximum of 30 interrogatories, unless the court orders otherwise (Md. Rule 2-421(a))
  • Subparts count as separate interrogatories
Business Records Response (Md. Rule 2-421(c))
  • Responding party may specify business records if the burden of deriving answers is substantially the same for both parties
  • Specification of records must be in sufficient detail
Signing Requirement (Md. Rule 2-421(b))
  • Answers must be signed by the person making them, under oath
  • Attorney must sign any objections
Contention Interrogatories (Md. Rule 2-402(a))
  • Permitted to inquire about opinions or contentions relating to the application of law to fact
  • Subject to limitations imposed by Maryland and federal courts
Scope of Interrogatories (Md. Rule 2-402)
  • Limited to matters relevant to the subject matter of the action and not privileged
  • Information must be reasonably calculated to lead to the discovery of admissible evidence
Objections
  1. Relevance: The interrogatory is not relevant to the subject matter of the action (Md. Rule 2-402(a); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 (1961)).
  2. Privilege: The information sought is privileged (Md. Rule 2-402(a); Blades v. Woods, 107 Md. App. 178, 183–84 (1995)).
  3. Excessive Breadth, Burdensomeness, or Vagueness: The interrogatory cannot be answered because it is excessively broad, burdensome, or vague (Md. Rule 2-402(a); Blades v. Woods, 107 Md. App. 178, 183–84 (1995)).
  4. Violation of Protective Order: The interrogatory seeks information or documents protected by a court-imposed protective order (Md. Rule 2-403).
  5. Outside the Responding Party's Possession, Custody, or Control: The interrogatory seeks information or documents outside the responding party's possession, custody, or control (Md. Rule 2-402(a)).
  6. Publicly Available Information: The interrogatory seeks information or documents that are publicly available.
Drafting the Response
  • Include a caption and title, general responses and objections, specific responses and objections, verification, and signature block
  • Repeat the language of each interrogatory and provide a specific response or objection
Service Requirements (Md. Rule 2-421(b))
  • Serve answers within 30 days of service of interrogatories, or 15 days for defendants after the date on which their initial pleading or motion is required
Privilege and Work Product Doctrine
  • Assert specific objections for information or documents protected by attorney-client privilege or work product doctrine
  • Promptly address any inadvertent disclosure of privileged information or work product (Md. Rule 2-402(g))
1. Purpose
  • Obtain basic information from the opponent in an inexpensive and efficient manner
  • Discover information needed to prove claims or defenses
  • Identify potential witnesses
  • Focus deposition topics
  • Gather data or other information difficult to obtain through a deposition
  • Follow up on matters previously discovered
  • Uncover insurance policies or indemnification agreements
  • Evaluate adversary's litigation strengths and weaknesses (Md. Rule 2-421)
2. Rules
  • Interrogatories may be directed only to opposing or other parties
  • Limit of 30 interrogatories unless the court orders otherwise (Md. Rule 2-421(a))
  • Form interrogatories provided in the Appendix of Forms to the Maryland Rules
  • Contention interrogatories allowed (Md. Rule 2-402(a))
3. Scope
  • Limited to relevant, non-privileged information related to the subject matter of the action (Md. Rule 2-402)
  • Relevance in discovery is broader and narrower than the concept governing admissibility of evidence at trial
4. Drafting
  • Include a caption and title, demand, definitions, instructions, interrogatories, and signature block
  • Progress from general to specific questions
  • Be comprehensible and avoid requesting privileged or irrelevant information
  • Proofread for accuracy and clarity
  • Keep deadlines in mind
5. Information to Request
  • Personal background
  • Details about how and when something happened
  • Identifying information about parties, witnesses, and experts
  • Background information about events surrounding the claim
  • Information about relevant documents, correspondence, photographs, etc.
  • Information about admissions made by any parties
  • Information about a defendant's insurance coverage, financial condition, and ability to pay
  • Statements obtained from parties or witnesses
  • Information about the damages sought by a party
  • Information about any relevant electronic evidence
6. Service
  • Interrogatories may be served upon any other party without leave of court (Md. Rule 2-421(a))
  • Answers to interrogatories must be served within 30 days of service, or within 15 days after the date on which the party's initial pleading or motion is required (Md. Rule 2-421(b))
7. Use of Answers as Evidence
  • Answers to interrogatories may be used at trial or hearing to the extent permitted by the rules of evidence (Md. Rule 2-421(d))
  • Answers are not conclusive and may be weighed by the trier of fact against the party's trial testimony
8. District Court
  • Limited discovery in comparison to circuit courts (Md. Rule 3-401)
  • A party is limited to 15 interrogatories unless the court orders otherwise (Md. Rule 3-421)
  • No pretrial discovery permitted in small claim actions, landlord and tenant, and grantee actions (Md. Rule 3-701(e))

Massachusetts Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Subpoenas
Requests for Admission
  • Overview
1. Timing
2. Formal Requirements
  • Set forth each matter for which an admission is requested separately in the request (Mass. R. Civ. P. 36(a)).
  • Serve requests for admissions and responses upon the appropriate attorneys of record and file with the court (Mass. R. Civ. P. 5(d)).
3. Scope
4. Drafting Responses
  • Admit the matter, deny the matter, set forth in detail why the responding party cannot truthfully admit or deny the matter, or provide a written objection addressed to the matter (Mass. R. Civ. P. 36(a)).
5. Objections
  1. Relevance: A party may object to a request for admission if the matter is not relevant to the subject matter involved in the pending action (Mass. R. Civ. P. 26(b)). However, the scope of discovery is broad, and it is not a ground for objection that the information sought will be inadmissible at trial if the information appears reasonably calculated to lead to the discovery of admissible evidence (Mass. R. Civ. P. 26(b)(1)).
  2. Privilege: A party may object to a request for admission if the matter is protected by a privilege, such as attorney-client privilege or work-product privilege (Mass. R. Civ. P. 26(b)).
  3. Overly broad or unduly burdensome: A party may object to a request for admission that is overly broad or unduly burdensome (Miller v. Powers, 2014 Mass. App. Div. 200 (Mass. App. Div. 2014)). The party objecting must show that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the proposed discovery in resolving the issues (Mass. R. Civ. P. 26(b)(1)(C)).
  4. Vague, ambiguous, or compound: A party may object to a request for admission if the request is vague, ambiguous, or compound in nature. Requests for admissions should be clear, unambiguous, and should never be compound (Morse v. Sylvester, 32 Mass. L. Rep. 691 (Mass. Super. 2015)).
  5. Calls for a legal conclusion: A party may object to a request for admission if it calls for a legal conclusion. However, a request for admission may properly relate to a mixed question of law and fact, which requests an opinion about the application of law to the facts of the case (Mass. R. Civ. P. 36(a)(1)).
  6. Already admitted or denied: A party may object to a request for admission if the matter has already been admitted or denied in another discovery response or in the pleadings (Mass. R. Civ. P. 36(a); Caron v. Gen. Motors Corp., 643 N.E.2d 471, 472–75 (Mass. App. Ct. 1994)).
  7. Public policy: In rare cases, a party may object to a request for admission on public policy grounds, but the objecting party must demonstrate a strong public policy rationale for the objection (Mass. R. Civ. P. 26(b)).
6. Sufficiency of Responses
  • File a motion to determine the sufficiency of any answers or objections (Mass. R. Civ. P. 36(a)).
  • The court may order that an answer be served, that the matter is admitted, or that an amended answer must be served (Mass. R. Civ. P. 36(a)).
7. Recovery of Expenses
  • Apply to the court for an order requiring the non-admitting party to pay the reasonable expenses incurred in making proof of the genuineness of the document or the truth of the matter (Mass. R. Civ. P. 37(c)).
Requests for Production
  • Responding
  • Propounding
1. Written response requirements
2. Formatting & Drafting Preliminary Statement
  • Optional, preserve objections and other protections
  • Limit to 4-5 enumerated paragraphs
  • Include non-waiver statement regarding admissibility (Mass. R. Civ. P. 26(b)(1))
3. Electronically Stored Information (ESI)
4. Objections
5. Searches for Responsive Material
  • Articulate the scope of the search in the initial and supplemental written responses
  • Explain any excluded locations from the scope of the search (Mass. Super. Ct. Rule 30A(3)(c))
6. Withholding Material Based on Privilege
7. Redaction of Personal Identifying Information
  • Redact government-issued identification numbers, parent's birth surname, and financial account numbers (Mass. Sup. Jud. Ct. R. 1:24(3))
  • Use electronic redaction tools or e-discovery software for efficiency
8. Impoundment of Protected Information
  • Confer with opposing counsel regarding impoundment agreement
  • File a motion for impoundment if necessary (Mass. Unif. Impoundment P. 7)
  • Properly label and maintain impounded information
9. Serving a Written Response to RFPs
Privilege and Work Product Doctrine

Privilege protects certain types of communications from being disclosed during discovery. The most common types of privilege include:

  1. Attorney-client privilege: Protects confidential communications between an attorney and their client made for the purpose of obtaining or providing legal advice. Mass. R. Prof. C. 1.6; Commonwealth v. O'Brien, 377 N.E.2d 1176, 1180 (Mass. 1978).
  2. Work product doctrine: Protects materials prepared by an attorney or their agent in anticipation of litigation or for trial. Mass. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).

To assert a privilege or work product protection, a party must create a privilege log that identifies each document or communication being withheld, along with the basis for the claim. Mass. R. Civ. P. 26(b)(5).

Expert Discovery

Expert discovery allows parties to obtain information about expert witnesses who may testify at trial. This includes:

  1. Expert reports: Written reports prepared by experts that detail their opinions, the basis for their opinions, and their qualifications. Mass. R. Civ. P. 26(a)(2)(B).
  2. Expert depositions: Oral testimony of expert witnesses, taken under oath and recorded for later use in court. Mass. R. Civ. P. 26(b)(4)(A).

Parties must disclose their expert witnesses and provide expert reports within the time ordered by the court or agreed upon by the parties. Mass. R. Civ. P. 26(a)(2)(C).

Interrogatories

Interrogatories are written questions served by one party to another, seeking information related to the case. The responding party must answer the interrogatories in writing, under oath. Mass. R. Civ. P. 33.

  1. Scope: Interrogatories may relate to any matter within the scope of discovery, including facts, opinions, and contentions. Mass. R. Civ. P. 33(a).
  2. Limitations: Each party may serve up to 30 interrogatories, including subparts, unless the court allows more. Mass. R. Civ. P. 33(a)(1).
  3. Timing: Interrogatories may be served after the commencement of the action and must be answered within 45 days. Mass. R. Civ. P. 33(b)(3).
Requests for Admissions

Requests for admissions are written statements served by one party to another, asking the receiving party to admit or deny the truth of the statement or the genuineness of a document. Mass. R. Civ. P. 36.

  1. Purpose: Requests for admissions are used to establish facts, streamline issues, and reduce the need for proof at trial.
  2. Scope: Requests for admissions may relate to facts, application of law to fact, or opinions about either. Mass. R. Civ. P. 36(a).
  3. Timing: Requests for admissions may be served after the commencement of the action, and the responding party has 30 days to respond. Mass. R. Civ. P. 36(a)(2).
Depositions

Depositions are oral testimony given by a witness under oath, recorded by a court reporter, and often used for discovery or trial purposes. Mass. R. Civ. P. 30.

  1. Notice: The party seeking to take a deposition must give reasonable written notice to every other party, specifying the time, place, and name of the deponent. Mass. R. Civ. P. 30(b)(1).
  2. Subpoenas: If the deponent is not a party, a subpoena may be required to compel their attendance. Mass. R. Civ. P. 45.
  3. Limitations: Depositions are generally limited to one day of seven hours, unless the court orders otherwise. Mass. R. Civ. P. 30(d)(2).
Sanctions for Discovery Misconduct

If a party fails to comply with discovery obligations, the court may impose sanctions, including:

  1. Compelling discovery: Ordering the non-compliant party to provide the requested discovery. Mass. R. Civ. P. 37(a).
  2. Monetary sanctions: Requiring the non-compliant party to pay the moving party's expenses, including attorney's fees. Mass. R. Civ. P. 37(b)(2)(C).
  3. Dismissal or default: Dismissing the non-compliant party's claims or entering a default judgment against them. Mass. R. Civ. P. 37(b)(2)(A), (C).
Interrogatories
  • Overview
I. Purpose

- Interrogatories are exploratory devices intended to uncover facts and gather preliminary information (Univ. Hosp., Inc. v. Mass. Comm'n Against Discrimination, 487 N.E.2d 506, 508 (Mass. 1986)).
- Use interrogatories strategically to prepare for trial, uncover information needed to prove claims and defenses, and evaluate the strengths and weaknesses of the opposing party's case.
- Interrogatories can help focus or even eliminate the need for depositions by identifying potential witnesses or limiting areas of disagreement.

II. Drafting
  1. Introduction and Definitions
  2. Instructions
    • - Include instructions establishing what constitutes a complete answer to an interrogatory.
    • - Ensure answers comply with the requirements set forth in Mass. R. Civ. P. 33(a)(3).
  3. Seek Relevant Information
    • - Focus interrogatories on finding relevant evidence that logically tends to prove or disprove any material fact that is at issue in the case.
  4. Information Need Not Be Admissible
  5. Limit the Number of Interrogatories
III. Serving Interrogatories
  1. Timing
    • - Serve interrogatories on any defendant with or after service of the summons and complaint (Mass. R. Civ. P. 33(a)(1)).
    • - Serve interrogatories on the plaintiff(s) after commencement of the action (Mass. R. Civ. P. 33(a)(1)).
    • - Serve interrogatories within one year after the entry of an action or within such further time as the court may allow (Mass. Super. Ct. R. 30).
  2. Service Requirements
    • - If a party is represented by an attorney, serve the interrogatories upon the attorney unless service upon the party is ordered by the court (Mass. R. Civ. P. 5(b)).
    • - Follow the detailed instructions in Mass. R. Civ. P. 5(b) for accomplishing service.
    • - Service by mail is complete upon mailing (Mass. R. Civ. P. 5(b)).
IV. Preparing Answers to Interrogatories
  1. Formal Requirements
  2. Meeting with Your Client
    • - Obtain necessary documentation and identify an authorized representative to authenticate information and sign the interrogatories.
    • - Inform the client of the nature and extent of attorney-client, work product, and other available privileges and protections, and how to safeguard them.
  3. Responding to Interrogatory by Producing Business Records
    • - Consider producing business records to be examined, audited, or inspected if the burden of deriving or ascertaining the answer is substantially the same for the requesting party as for the responding party (Mass. R. Civ. P. 33(c)).
  4. Trade Secret Cases
V. Making Objections to Interrogatory Questions

Procedure for Making Objections
- Follow the procedure for making objections as set forth in Mass. R. Civ. P. 33(a)(3) and Mass. Super. Ct. R. 30A.

Objections:

  1. Irrelevance: An objection can be made if the interrogatory seeks information that is not relevant to the subject matter of the action (Mass. R. Civ. P. 26(b)(1)). The interrogatory must be reasonably calculated to lead to the discovery of admissible evidence.
  2. Overbroad or Unduly Burdensome: If an interrogatory is excessively broad or would cause an undue burden on the responding party, an objection can be lodged (Mass. R. Civ. P. 26(b)(1)). The court may impose limitations or conditions on discovery if it finds the request to be overbroad or unduly burdensome.
  3. Privilege: A responding party can object to an interrogatory if it seeks information protected by a privilege, such as attorney-client privilege, work product privilege, or other available privileges (Mass. R. Civ. P. 26(b)(1)). The responding party must specify the privilege asserted and provide sufficient information to allow the propounding party to assess the applicability of the privilege.
  4. Vague or Ambiguous: If an interrogatory is vague or ambiguous, an objection can be made, and the responding party may request clarification before answering the question (Mass. R. Civ. P. 33(a)(3)).
  5. Beyond the Scope of Permissible Interrogatories: An objection can be raised if the interrogatory seeks information beyond the scope of permissible interrogatories under Mass. R. Civ. P. 33(b), such as asking for legal conclusions or opinions unrelated to the facts or the application of law to the facts.
  6. Exceeding the Numerical Limit: If the propounding party serves more than the allowable 30 interrogatories, the responding party can object to the excess interrogatories (Mass. R. Civ. P. 33(a)(2)).
VI. Complying with Time Deadlines and Service Requirements for Interrogatory Responses
  1. Serving Answers or Moving to Enlarge
  2. Failure to Serve Responses
    • - If a party fails to serve any response to interrogatories, the propounding party may file a motion to compel and may seek sanctions pursuant to Mass. R. Civ. P. 37.
VII. Supplementing and Amending Responses to Interrogatories and to Requests for Discovery and Inspection
  1. Duty to Supplement Responses
    • - Follow the duty to supplement responses as set forth in Mass. R. Civ. P. 26(e)(1), (e)(2), and (e)(3).
    • - Stipulate in writing that parties will promptly supplement or amend all responses to discovery or request supplementation of prior responses to discovery requests as the trial date approaches.
Subpeonas
  • Responding
1. Basics of Responding to a Subpoena
2. Duty to Preserve Evidence
3. Complying with a Subpoena
4. Producing Documents or Electronically Stored Information
5. Resisting Compliance with a Subpoena
  • Grounds for resisting include improper service, lack of possession or control, geographical violations, inaccessibility, privilege, and undue burden or expense (Mass. R. Civ. P. 45)
  • Methods of resisting include objecting, moving to quash or modify, or moving for a protective order
6. Inaccessible Electronically Stored Information
7. Privilege
8. Annoyance, Embarrassment, Oppression, or Undue Burden or Expense
9. Methods of Resisting a Subpoena
10. Objections
  1. Improper Service: The issuing party did not properly serve the subpoena, which may render it invalid (NETEZZA v. INTELLIGENT INT, No. 09-4961-BLS1 (Mass. Cmmw. Oct. 27, 2010)).
  2. Lack of Possession, Custody, or Control: The subject does not have possession, custody, or control of the materials the subpoena demands to be produced (Mass. R. Civ. P. 45(a)).
  3. Geographical Requirements Violations: The subpoena's requirements violate the geographical limitations specified in Mass. R. Civ. P. 45(d)(2).
  4. Inaccessible Electronically Stored Information: The subpoena requests production of electronically stored information that is inaccessible, which may provide grounds for objection (Mass. R. Civ. P. 45(f)(1)(D)).
  5. Privileged Materials: The subpoena requests privileged or trial preparation materials, which are protected from disclosure (Mass. R. Civ. P. 45(f)(2)(A); Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 983 N.E.2d 683 (Mass. 2013); Swartz v. Cartwright, No, No. 000059 (Mass. Cmmw. Jul. 19, 2002)).
  6. Undue Burden or Expense: Complying with the subpoena would subject the responding party to annoyance, embarrassment, oppression, or undue burden or expense (Mass. R. Civ. P. 45(b), 45(f)(3)(A), 26(c); Sinnott v. Boston Retirement Board, 402 Mass. 581, 524 N.E.2d 100 (Mass. 1988)).

Michigan Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Subpoenas
Requests for Admission
  • Overview
Nature and Purpose of Requests for Admission:

- Limit areas of controversy

- Save time, energy, and expense in preparing proof and submitting evidence (Lawrence v. Burdi, 314 Mich. App. 203, 213, 886 N.W.2d 748 (2016))

Proper Subjects of Requests for Admission (MCR 2.312(A)):

- Statement of fact

- Opinion on a matter of fact

- Application of law to fact

- Genuineness of a document

Timing for Response (MCR 2.312(B)(1)):

- 28 days after service of the request, or within a shorter or longer time as the court may allow

- 42 days after being served with the summons and complaint for a defendant, unless the court orders a shorter time

Objections:

1. Improper format:

• Objection based on the request's noncompliance with format requirements, such as the requirement that each matter on which an admission is requested be set forth separately (MCR 2.312(A))

2. Untimely:

• Objection based on the propounding party’s service of the requests in violation of the applicable time constraints, such as discovery cut-off dates established by a scheduling order in the case (MCR 2.312(A), 2.401(B)(2)(a))

3. Undue burden:

• Requests that are repetitive, voluminous, convoluted, vague, or ambiguous, or that otherwise require extensive analysis or explanation, may potentially be objectionable on grounds of undue burden or expense (MCR 2.302(C))

• See also Fed. R. Civ. P. 36(a), Committee Note of 1970 (discussing comparable federal rule)

4. Improper subject:

• Requests for admission are limited to statements or opinions of fact or the application of law to fact, including the genuineness of documents (MCR 2.312(A))

• A request that seeks an admission on other matters, such as the propounding party’s subjective state of mind or legal conclusions, is potentially objectionable (Richardson v. Ryder Truck Rental, 213 Mich. App. 447, 456–58, 540 N.W.2d 696 (1995))

5. Outside scope of discovery or seeks privileged matter:

• Requests for admission are limited to matters within the permissible scope of discovery (MCR 2.312(A))

• The responding party may validly object to a request to admit a matter that is irrelevant to the claims and defenses asserted in the case, or that is privileged (MCR 2.302(B)(1))

6. Failure to provide document:

• An objection may be based on the propounding party’s failure to serve a document whose genuineness is the subject of the request if the document has not already been produced or is not otherwise available to the responding party (MCR 2.312(A))

Preparing Requests for Admission:

- Draft requests to be unambiguous and directed to a single fact or issue

- Include a preamble or "Instructions" section with the time for responding

- Serve a copy of the document if the request seeks admission of its genuineness

(MCR 2.312(A))

Serving and Filing Requests for Admission:

- Serve on the party from whom the admission is requested and their attorney (if represented)

- Obtain proof of service

- File with the court either before service or within a reasonable time after service (MCR 2.312(F))

Time for Response:

- 28 days after service of the request, or within a shorter or longer time as the court may allow

- 42 days after being served with the summons and complaint for a defendant, unless the court orders a shorter time (MCR 2.312(B)(1))

Options for Responding and Format of Response:

- Admit the matter expressly

- Deny the matter expressly

- Explain in detail the reasons why the responding party cannot truthfully admit or deny the matter

- Object to the request, stating the reasons for the objection (MCR 2.312(B))

Motion to Determine Sufficiency of Answers or Objections:

- Move to determine the sufficiency of the responding party's answer or objection

- State that the moving party has in good faith conferred or attempted to confer with the responding party in an effort to secure the desired response without court action (MCR 2.312(C))

Motion for Withdrawal or Amendment of Admission:

- Establish good cause for the withdrawal or amendment of the admission

- Consider factors such as aiding in the presentation of the action, prejudice to the requesting party, and whether the delay was inadvertent (Janczyk v. Davis, 125 Mich. App. 683, 692–93, 337 N.W.2d 272 (1983))

Motion for Expenses Incurred in Proving Matter Not Admitted:

- Move for an order requiring the responding party to pay the reasonable expenses, including reasonable attorney’s fees, incurred in making the proof

- Court must make an award of such expenses unless certain conditions are met (MCR 2.313(C)(2))

Requests for Production
  • Responding
  • Propounding
Effect of Initial Disclosure Requirements:

• Effective January 1, 2020, parties in most civil actions must disclose certain matters without awaiting a formal discovery request (MCR 2.302(A)(1)–(3)).
• Matters to be disclosed include documents, ESI, tangible things, descriptions of items not in possession, computation of damages, and insurance agreements (MCR 2.302(A)(1)(d)–(g)).

Preliminary Steps:
  1. Review the request to determine which documents, ESI, or other items have been requested.
  2. Determine the location and possession, custody, or control of the items (MCR 2.310(B)(1)(a)(ii)).
  3. Determine any grounds for objection (MCR 2.310(C)(2)).
  4. Review documents or items for the existence of privilege or work product protection (MCR 2.302(B)(1), (3); MRE 501).
Responsibilities of Responding Party:

• Produce documents or things in their possession, custody, or control (MCR 2.310(B)(1)(a)(ii); Kenneth Mitan & Tecorp Entm't v. New World Tv, 2003).
• Control is defined broadly, focusing on practical ability to obtain documents as well as legal right (Costa v. Kerzner Int’l Resorts, Inc., 277 F.R.D. 468, 472 (S.D. Fla. 2011)).

Preparing Written Response:

• Responding party must prepare a written response addressing each item or category of items in the request (MCR 2.310(C)(2)).
• Time for response: 28 days after the service of the request, or 42 days for a defendant served with a request at the outset of litigation (MCR 2.310(C)(2)).
• Contents of response: state inspection and related activities will be allowed as requested, or state the objection and provide reasons for the objection (MCR 2.310(C)(2)).
• Signature and service: response must be signed by the attorney (or party if unrepresented) and served on counsel for all other parties (MCR 2.302(G)(1), 2.302(H)(1), (2)).

Objections:
  1. Relevance
    A responding party may object to a request for production if it seeks information that is not relevant to the claims or defenses in the case. The scope of discovery is limited to relevant, nonprivileged material. See MCR 2.302(B)(1).
  2. Privilege
    A responding party may object to a request for production if it seeks information that is protected by a privilege, such as attorney-client privilege or work product protection. See MCR 2.302(B)(1), (3); MRE 501.
  3. Overly Broad or Unduly Burdensome
    A responding party may object to a request for production if it is overly broad or unduly burdensome. This objection can be based on the volume of documents requested, the time and expense involved in producing the documents, or the difficulty in locating and retrieving the requested materials. See MCR 2.302(C).
  4. Repetitive or Cumulative
    A responding party may object to a request for production if it seeks information that is repetitive or cumulative. The court can limit discovery if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source that is more convenient, less burdensome, or less expensive. See MCR 2.302(C).
  5. Noncompliance with MCR 2.310
    A responding party may object to a request for production if it does not comply with the requirements of MCR 2.310.
  6. Privacy or Confidentiality
    A responding party may object to a request for production if it seeks information that is private or confidential. In such cases, a party may request a protective order under MCR 2.302(C) to prevent disclosure of sensitive or confidential information.
  7. Trade Secrets or Proprietary Information
    A responding party may object to a request for production if it seeks information that constitutes trade secrets or proprietary information. In this situation, the responding party may request a protective order under MCR 2.302(C) to protect the trade secret or proprietary information from being disclosed.
Seeking Protective Order:

• If the responding party does not agree with the scope of the request or does not want to respond, they must move for a protective order under MCR 2.302(C).

Producing Documents and ESI:

• Produce documents as they are kept in the usual course of business or organize and label documents to correspond with categories in the request (MCR 2.310(C)(5)).
• For ESI, produce in the form requested, or in a form in which it is ordinarily maintained or in a reasonably usable form (MCR 2.310(C)(2)).

Supplement Response as Required:

• Responding party must supplement their response in certain circumstances, such as a timely request for supplementation, court order, or stipulation of parties (MCR 2.302(E)(1)(a)(i), (b)).
• Failure to supplement may result in sanctions (MCR 2.302(E)(2)).

1. Permissible Objects of Rule 2.310 Requests:
2. Review Initial Disclosures (MCR 2.302(A)(1)(d)-(g))
3. Determine Timing for Making Request:
  • Serve requests for production after serving initial disclosures (MCR 2.301(A)(1))
  • Serve requests on plaintiff after commencement of action (MCR 2.310(C)(1))
  • Serve requests on defendant with or after service of summons and complaint (MCR 2.310(C)(1))
4. Determine Which Documents or Other Items to Request:
5. Consider Alternative Means of Obtaining Information:
6. Electronic Discovery Considerations:
  • Specify the form or forms in which ESI is to be produced (MCR 2.310(C)(1))
7. Determine Precise Content of Request:
  • Describe each item or category with reasonable particularity (MCR 2.310(C)(1))
  • Specify a reasonable time, place, and manner for production (MCR 2.310(C)(1))
8. Determine Earliest Time for Serving Request:
  • Serve request on plaintiff after action is commenced (MCR 2.310(C)(1))
  • Serve request on defendant with or after service of summons and complaint (MCR 2.310(C)(1))
9. Prepare Request:
  • Draft request in compliance with MCR 2.310 standards
10. Serve Request:
  • Serve request on the party from whom discovery is sought and serve copies on all other parties (MCR 2.302(H)(2))
11. File Request Only When Warranted; Preserve Request and Response (MCR 2.302(H)(1))
12. Request Supplementation of Response as Appropriate (MCR 2.302(E)(1)(a)(i), (E)(1)(b))
13. Seek Motion to Compel if Response Remains Inadequate (MCR 2.313(A), (B))
14. Clearly Specify Items or Categories of Items to Be Produced (MCR 2.310(C)(1))
15. Specify Time, Place, and Manner of Production (MCR 2.310(C)(1))
16. Comply with Format Requirements:
  • Check local rules for any format requirements
17. Sign Request (MCR 2.302(G))
Interrogatories
  • Responding
  • Propounding
Who Signs:

The person who answers interrogatories must sign the answers under oath, and the attorney who makes any objections must sign the objections (MCR 2.309(B)(1), (3)).

Duty to Provide "Available" Information:

The party answering interrogatories is required only to provide "available" information, not to undertake the propounding party’s research (MCR 2.309(B)(1)).

Deadline to Respond:

A party served with interrogatories generally must respond, in writing, within 28 days after service of the interrogatories. However, a defendant served with interrogatories need not respond until 42 days after the service of the complaint and summons on that defendant (MCR 2.309(B)(4)).

Objections:

1. Interrogatories exceeding numerical limits (MCR 2.309(A)(1)): If the total number of interrogatories, combined with any previous sets served on your client, exceeds the numerical limit set by the court, you may object.

2. Interrogatories exceeding the permissible scope of discovery (MCR 2.302(B)): The responding party may refuse to answer an interrogatory if it concerns a matter that is not relevant to the subject matter of the action, is privileged, or is protected work product.

3. Information not available to the responding party (MCR 2.309(B)(1)): A party may object to an interrogatory if it requests information that is not available to that party, including its officers and agents.

4. Interrogatories being unduly burdensome (MCR 2.302(C)): If an interrogatory is unreasonable, the responding party should serve a written objection and, if necessary, seek a protective order from the court.

5. Interrogatories calling for legal conclusions (MCR 2.309(D)(2)): While interrogatories involving an opinion or contention that relates to fact or the application of law to fact are permissible, interrogatories that call for a legal conclusion unrelated to the facts of the case are generally objectionable.

6. Poorly drafted or impermissibly compound interrogatories: If the interrogatories are too poorly drafted to be comprehensible or are impermissibly compound, the responding party may object (United States ex. rel. Connell v. Chapman Univ., 245 F.R.D. 646, 649 (C.D. Cal. 2007)).

Responses:

Format Requirements: The answering party shall repeat each interrogatory or sub-question immediately before the answer to it (MCR 2.309(B)(2)).

Consider Option to Produce Business Records: Under certain circumstances, MCR 2.309(E) authorizes a party to respond to an interrogatory by producing business records, or a compilation, summary, or abstract based on those records, instead of formulating a written answer.

Answer Fully or Object: Each interrogatory must be answered separately or fully in writing and under oath, unless it is objected to (MCR 2.309(B)(1)).

Sign Response: The person who answers interrogatories must sign the response. If there are objections, the attorney who makes the objections must sign the objections (MCR 2.309(B)(3)).

Serve Response; Generally Do Not File: The responding party must serve the answers and objections on all other parties within 28 days after the interrogatories are served, except that a defendant may serve answers within 42 days after being served with the summons and complaint (MCR 2.309(B)(4); see also MCR 2.302(H)(2)).

Moving to Extend Time for Responding to Contention Interrogatories: If responding to contention interrogatories would be premature, given the state of the case, seek an extension agreement from opposing counsel or consider moving for a protective order from the court (MCR 2.309(D)(2)).

Moving for Protective Order: A responding party may move for a protective order from "annoyance, embarrassment, oppression, or undue burden or expense" (MCR 2.302(C)).

Supplementing Interrogatory Answers: The responding party must supplement or correct its response in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing (MCR 2.302(E)(1)(a)(i)).

Nature and Purpose of Interrogatories:
  • Efficient and cost-effective method for gathering information concerning facts, evidence, and contentions (MCR 2.309(A)(1)).
  • Used to identify documents, locate potential deponents, and obtain discovery from parties (MCR 2.309(A)(1)).
  • Responding party must provide a written answer under oath or written objection to each question (MCR 2.309(B)(1)).
  • Interrogatories may not be directed to nonparties (MCR 2.309(A)(1)).
Fact and Contention Interrogatories:
  • Fact interrogatories: used to obtain factual information.
  • Contention interrogatories: deal with opinions or contentions that relate to facts or the application of law to facts (MCR 2.309(D)(2)).
  • Special timing limitations may apply to contention interrogatories.
Permissible Scope of Interrogatories:
  • Interrogatories may relate to any matter within the scope of discovery under MCR 2.302(B) (MCR 2.309(D)(1)).
  • Relevancy limitation concerns relevancy to the subject matter of the action, not the precise issues framed by the pleadings (MCR 2.302(B)(1)).
  • Interrogatories may fall within the permissible scope of discovery, even if the information sought would not be admissible at trial (MCR 2.302(B)(1)).
  • Court may limit use of interrogatories to protect a party from annoyance, embarrassment, oppression, or undue burden or expense (MCR 2.302(C)).
Limitation on Number of Interrogatories:
  • Each separately represented party may serve no more than twenty interrogatories on each other party (MCR 2.309(A)(2)).
  • Discrete subpart of an interrogatory counts as a separate interrogatory (MCR 2.309(A)(2)).
  • Limit on number of interrogatories may be altered by stipulation or by court order (MCR 2.302(F)(2)).
Use of Interrogatory Answers:
Identify Information Sought:
Review Initial Disclosures (MCR 2.302(A)(1)):
  • Factual basis of claims and defenses
  • Legal theories and citations to relevant legal authorities
  • Names, addresses, and telephone numbers of individuals likely to have discoverable information
  • Copies or descriptions of all documents, ESI, and tangible things that the disclosing party may use to support its claims or defenses
  • Computation of each category of damages claimed
  • Copies or opportunities to inspect pertinent portions of any insurance, indemnity, security equivalent, or suretyship agreement
  • Anticipated subject areas of expert testimony
Determine Timing:
Format Requirements:
  • Number each interrogatory separately and leave space between each interrogatory.
  • Comply with general format requirements for litigation documents (MCR 1.109(D)(1)).
  • Consider combining interrogatories and requests for production of documents into one document.
Numerical Limitations:
  • Limit of 20 interrogatories on each other party (MCR 2.309(A)(2)).
  • Exercise discretion in determining what information to seek and consider requesting a stipulation or court order for a larger number of interrogatories (MCR 2.303(F)(2)).
Preparing Fact Interrogatories:
  • Seek strictly factual information within the normal limits on the scope of discovery (MCR 2.302(B), 2.309(A)(1)).
Preparing Contention Interrogatories:
Signature, Service, and Preservation of Interrogatories:
  • At least one attorney of record or unrepresented party must sign interrogatories (MCR 2.302(G)(1)).
  • Copies of interrogatories should be served on all parties (MCR 2.302(H)(2)).
  • Interrogatories and responses are not filed with the court unless used in connection with a motion or at trial (MCR 2.302(H)(1)).
Addressing Inadequate Response to Interrogatories:
  • Attempt to resolve disagreements over discovery without involving the court (MCR 2.302(F)(3)).
  • Consider moving to compel a response or for sanctions if efforts to resolve disputes fail (MCR 2.309(C), 2.313(A), 2.313(B)).
Requesting Supplemental Answers:
  • Responding party must supplement or correct its disclosure or response in a timely manner if the party learns that the disclosure or response is incomplete or incorrect (MCR 2.302(E)(1)(a)(i)).
  • Duty to supplement may be imposed by the court, by agreement of the parties, or by requests from the propounding party for supplementation of responses (MCR 2.302(E)(1)(a)(ii), (b)).
  • Court may order sanctions if a party has not properly supplemented responses as required (MCR 2.302(E)(2)).
Subpeonas
  • Overview
1. Necessity for Obtaining Testimony or Other Evidence from Nonparties by Subpoena (MCR 2.305(A)(1), (5))
  • To depose a nonparty or obtain copies of documents in their possession, serve a subpoena in accordance with MCR 2.305(G).
2. Where Nonparty Can Be Required to Respond to Subpoena (MCR 2.305(B))
  • Nonparty deponent may be required to attend a deposition in the county where they reside, are employed, have their principal place of business, or transact relevant business, or at another convenient place specified by the court.
3. Timing of Deposition and Necessity for Leave of Court (MCR 2.306(A))
  • A represented party may issue a subpoena to a nonparty for a deposition after all parties have had a reasonable opportunity to obtain an attorney.
4. Seek Production of Documents or Things (MCR 2.305(A)(1))
  • A non-party discovery subpoena may command the person to produce and permit inspection and copying of documents, permit inspection of other tangible things, or permit entry on land.
5. Burden Imposed on Witness (MCR 2.302(C), 2.305(A)(4))
  • Minimize the burden on the nonparty deponent to the extent possible to avoid objections on the grounds of undue burden.
6. General Form and Contents of Subpoena (MCR 2.506(D))
  • Use the "Subpoena, Order to Appear and/or Produce" form (MI Official Form MC 11) found on the Michigan Courts website.
7. Contents of Subpoena Directed to Corporation or Other Organization (MCR 2.305(A)(6))
  • Name the organization as the deponent and describe with reasonable particularity the matters on which examination is requested.
8. Additional Requirements for Subpoena Duces Tecum (MCR 2.305(A)(1), (2))
  • Specify the items to be produced in the subpoena.
9. Additional Requirement for Video Deposition (MCR 2.315(C)(1))
  • State in the subpoena that the deposition is to be visually recorded.
10. Signing Subpoena (MCR 2.305(A)(1))
  • An attorney of record for a represented party may issue and sign a subpoena.
11. Service of Subpoena (MCR 2.506(G)(1); 2.305(A)(5))
  • Serve the subpoena on the deponent anywhere in Michigan in the manner provided by MCR 2.105.
12. Service of Deposition Notice (MCR 2.306(B)(1); 2.305(A)(1))
  • Serve a notice of the deposition on all other parties to the action.
13. Payment of Witness Fees and Allowances (MCR 2.506(G)(1); MCL § 600.2552)
  • Tender the fee for attendance and mileage to the person on whom the subpoena is served at the time of service.
14. Copies of Subpoenaed Documents (MCR 2.305(A)(7))
  • Provide copies of documents received pursuant to a subpoena to other parties upon written request and payment of reasonable copying costs.
15. Enforcing Compliance with Subpoena (MCR 2.506(E)(1); 2.313(A))
  • Failure to comply with a valid subpoena may be considered contempt of court or may result in a motion to compel compliance.
16. Responding to Subpoena (MCR 2.506(H)(4))
  • Comply with the subpoena unless there is a valid objection or court order quashing or modifying the subpoena.
17. Motion to Quash or Modify Subpoena or for Protective Order (MCR 2.302(C), 2.305(A)(4), 2.506(H)(4), (5))
  • File a motion to quash or modify the subpoena or for a protective order if the subpoena is invalid or imposes an undue burden.

Minnesota Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
Requests for Admission
  • Overview
Applicable Rules (Minn. R. Civ. P. 36.01):

- Requests for admission can touch on any matters within the scope of discovery (Minn. R. Civ. P. 26.02).
- Requests must be in writing and each matter must be separately set forth.
- Copies of relevant documents must be served with the request, unless already furnished or made available for inspection and copying.

Number of Requests for Admissions May Be Limited (Minn. R. Civ. P. 26.02(b)(1)):

- The court may limit the number of RFAs in a case upon its own initiative or pursuant to a motion.

Service of Request for Admissions (Minn. R. Civ. P. 5.02):

- Serve as any other discovery document; do not need to file with the court (Minn. R. Civ. P. 5.04(b)).
- In ELT cases, written discovery must be served within 30 days of the Case Management Conference (Minn. ELT R. 4(b)).

Effect of Admission (Minn. R. Civ. P. 36.02):

- Any matter admitted is conclusively established.
- Admissions are for the purpose of the pending action only and cannot be used against the party in any other proceeding.

Matter Deemed Admitted If No Response Made within 30 Days (Minn. R. Civ. P. 36.01):

- Each matter is admitted unless a written answer or objection is served within 30 days after service of the request or any shorter/longer time allowed by the court.
- A defendant is not required to serve a response until 45 days after service of the summons and complaint upon that defendant.
- In ELT cases, responses to written discovery requests must be served within 30 days of the date of service (Minn. ELT R. 4(b)).

Preparing to Respond (Minn. R. Civ. P. 36.01):

- Options for responding: admit, deny, admit in part and deny in part, state inability to answer, or object to the request.
- The response must set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.

Scope of Discovery (Minn. R. Civ. P. 26.02(b)):

- Limited to matters relevant to any party's claim or defense and proportional to the needs of the case.

Objections (Minn. R. Civ. P. 36.01):

1. Irrelevant or Beyond the Scope of Discovery: An objection may be raised if the requested admission is not relevant to any party's claim or defense, or if it is beyond the scope of discovery allowed by the court (Minn. R. Civ. P. 26.02(b)).

2. Vague or Ambiguous: If the requested admission is unclear or could be interpreted in multiple ways, an objection may be lodged on the grounds of vagueness or ambiguity (Minn. R. Civ. P. 36.01).

3. Calls for Legal Conclusions or Opinions: An objection should be raised if the requested admission seeks a legal conclusion or opinion from the responding party, as RFAs are meant to focus on factual matters (Minn. R. Civ. P. 36.01).

4. Undue Burden or Expense: If complying with the requested admission would impose an undue burden or expense on the responding party, an objection may be lodged (Minn. R. Civ. P. 26.02(b)).

5. Privileged, Confidential, or Protected Information: An objection may be raised if the requested admission seeks information that is privileged (e.g., attorney-client privilege), confidential (e.g., trade secrets), or otherwise protected by law (Minn. R. Civ. P. 26.02(b)).

6. Compound or Multiple Requests: If the requested admission contains multiple requests or seeks admissions on multiple issues, an objection may be lodged on the grounds that the request is compound or not separately set forth, as required by Minn. R. Civ. P. 36.01.

7. Disputed Facts or Issues: Objections may be raised if the requested admission seeks to obtain admissions on facts or issues that are in substantial dispute or are central to the claims or defenses in the case (Minn. R. Civ. P. 36.01).

Seeking Withdrawal or Amendment of Admission (Minn. R. Civ. P. 36.02):

- On motion, the court may permit withdrawal or amendment of an admission if it serves the presentation of the merits and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice them in maintaining the action or defense on the merits.

Court Determination of Sufficiency of Answer or Objection (Minn. R. Civ. P. 36.01):

- The party who has requested admissions may move to determine the sufficiency of the answers or objections.
- The court may order an answer to be served, the matter to be admitted, or the responding party to serve an amended answer.
- The court may also determine final disposition of the request at a pretrial conference or a designated time prior to trial.
- The provisions of Minn. R. Civ. P. 37.01(d) apply to the award of expenses incurred in connection with a motion to determine the sufficiency of answers or objections.

Requests for Production
  • Responding
  • Propounding
1. Responding to Document Requests
2. Drafting the Response
  • - Include a caption and title, general responses and objections, specific responses and objections, and a signature block
  • - State whether any responsive materials are being withheld based on objections (Minn. R. Civ. P. 34.02(c)(3))
  • - Produce documents as they are kept in the usual course of business (Minn. R. Civ. P. 34.02(c)(5)(A))
  • - Produce ESI in a form or forms in which it is ordinarily maintained or in a reasonably usable form (Minn. R. Civ. P. 34.02(c)(5)(B))
3. Grounds for Refusing to Produce Requested Documents
4. Common Objections
5. General Objections
6. Organizing Documents to Be Produced
  • - Requesting party may specify the form of production (Minn. R. Civ. P. 34.02(c)(5))
  • - Object if infeasible or expensive to convert information to requested form
1. Applicable Rules:

Minn. R. Civ. P. 34.01(1) and Minn. R. Civ. P. 34.01(2) cover the scope of document requests and inspection of real property or things on it.

2. Timing:

Requests for production or inspection can be served with or after service of the summons and complaint (Minn. R. Civ. P. 34.02(a)). A written response is required within 30 days of service of the request (Minn. R. Civ. P. 34.02(c)(1)).

3. Form of Production:

Minn. R. Civ. P. 34.02(5) outlines the requirements for producing documents and ESI in their ordinary course or specified form.

4. Drafting Document Requests:

Requests must specify each item or category of items to be inspected, a reasonable time, place, and manner for the inspection, and the form(s) in which ESI is to be produced (Minn. R. Civ. P. 34.02(b)).

5. Instructions:

RFP instructions are not required but can be helpful to define the scope of the requests and specify the form(s) in which ESI is to be produced (Minn. R. Civ. P. 34.02(b)(3)).

6. Scope:

Discovery includes matters relevant to any party's claim or defense, but must remain proportional to the needs of the case and not overly burdensome, cumulative, or expensive in relation to the benefit of its receipt (Minn. R. Civ. P. 26.02(b)).

7. Service Requirements:

RFPs cannot be served until the parties have conferred and prepared a discovery plan (Minn. R. Civ. P. 26.04(a)) or more than 21 days after the summons and complaint are served (Minn. R. Civ. P. 26.04(b)(1)). Electronic service is the default method in Minnesota (Minn. R. Civ. P. 5.02 and Minn. Gen. R. Prac. 14).

Remember to draft requests with "reasonable particularity" (Minn. R. Civ. P. 34.02(b)(1)) and consider proportionality, convenience, and expense when crafting discovery requests (Minn. R. Civ. P. 26.01(a) and Minn. R. Civ. P. 26.02(b)).

Interrogatories
  • Responding
  • Propounding
1. Interrogatories

Written questions propounded by one party to another, relating to any matter relevant to the claims and defenses of any party (Minn. R. Civ. P. 33.01(b)).

2. Protective Orders

Court orders limiting the scope of discovery to protect a party from annoyance, embarrassment, oppression, or undue burden or expense (Minn. R. Civ. P. 26.03).

3. Applicable Rules

Answers to interrogatories must be stated fully in writing, under oath or penalty of perjury, by the party served or a party’s officer or managing agent (Minn. R. Civ. P. 33.01(d)).

4. Subparts

A single interrogatory may include related subparts, but courts often treat independent or unrelated subparts as additional interrogatories (Rule 33.01(a)).

5. Timing

Written answers and objections must be served within 30 days of being served with the interrogatories, or 45 days if served simultaneously with the summons and complaint (Minn. R. Civ. P. 33.01(b)).

6. Business Records

If the answer to an interrogatory can be derived or ascertained from the business records, it is sufficient to specify the records and afford the party serving the interrogatory reasonable opportunity to examine, audit, or inspect the records (Minn. R. Civ. P. 33.03).

7. Continuing Duty to Supplement Answer

A party on whom interrogatories are served has a continuing duty to supplement answers (McCarthy Well Co. v. St. Peter Creamery, Inc., 389 N.W.2d 514 (Minn. Ct. App. 1986)).

8. Signing Requirement

Every discovery request must be signed by an attorney of record or self-represented litigant, including their address and email address (Minn. R. Civ. P. 26.07).

9. Objections:

Vagueness: The interrogatory is vague and ambiguous, making it impossible to answer with specificity (Minn. R. Civ. P. 33.01(c)).

Immateriality: The interrogatory seeks information that is not material to any issue in the litigation and/or information not likely to lead to the discovery of relevant information (Minn. R. Civ. P. 26.02(b)).

Overbreadth: The interrogatory is overly broad and not proportional to the needs of the case (Minn. R. Civ. P. 26.02(b)).

Undue Burden: The interrogatory imposes an undue burden or expense on the responding party and is not proportional to the needs of the case (Minn. R. Civ. P. 26.02(b) and 33.01(c)).

Privilege: The interrogatory seeks information protected by the attorney-client privilege (Minn. R. Civ. P. 26.01).

Work Product Protection: The interrogatory seeks information prepared in anticipation of litigation and is thus protected as work product (Minn. R. Civ. P. 26.01).

10. General Responses and Objections

Overuse of general objections may result in waiver of objections and sanctions (Minn. R. Civ. P. 33.01(c)).

11. Specific Responses and Objections

Each objection must be specifically stated, and boilerplate objections are insufficient (Minn. R. Civ. P. 33.01).

12. Service Requirements

Electronic service is the default method in Minnesota, with no separate certificate of service required for E-filing (Minn. R. Civ. P. 5.02 and Minn. Gen. R. Prac. 14).

Purpose of Interrogatories:
Who May Serve Interrogatories:
  • Any party may serve written interrogatories upon any other party after the commencement of the suit (Minn. R. Civ. P. 33.01(a))
Applicable Rules:
Timing for Response:
  • Answers to interrogatories must be served within 30 days of the service of the interrogatories, unless the court orders otherwise (Minn. R. Civ. P. 33.01(b))
Number of Interrogatories Allowed:
  • Each party may serve no more than 50 interrogatories upon any other party (Minn. R. Civ. P. 33.01(a))
  • Exceptions: court may permit more than 50 interrogatories upon showing of good cause or establish/alter limits on the number of interrogatories (Minn. R. Civ. P. 26.02(b)(1))
Answering with Business Records:
Drafting Interrogatories:
  1. Read and understand Minn. R. Civ. P. 26
  2. Progress from general to specific questions
  3. Ensure interrogatories are comprehensible and do not request privileged or irrelevant information
  4. Proofread for accuracy
  5. Keep an eye on deadlines set by district court scheduling orders
  6. Include instructions and definitions for precision and specifying the form of production of ESI (Minn. R. Civ. P. 26.02, 33.03, and 34.02(c))
Service Requirements:
  • Use electronic service as the default method in Minnesota (Minn. R. Civ. P. 5.02 and Minn. Gen. R. Prac. 14)
  • If using conventional service, include a certificate of service identifying what is served, on whom, on what date, and by what means, signed by the individual who makes service

Missouri Discovery Cheat Sheet

  • Requests for Production
  • Interrogatories
  • Subpoenas
Requests for Production
  • Responding
  • Propounding
Preserve Relevant Evidence:

- Send a litigation hold notice to your client as soon as possible (Cosby v. Cosby, 202 S.W.3d 717 (Mo. Ct. App. 2006))
- Instruct your client to preserve potentially relevant documents and suspend ordinary-course document destruction procedures

Permitted Scope of Discovery:

- Parties may obtain discovery regarding any matter that is relevant to the subject matter involved in the pending action (Mo. Sup. Ct. R. 56.01(b)(1))

Protective Order:

- Move for a protective order to shield your client from unreasonable discovery requests (Mo. Sup. Ct. R. 56.01(c))

Responding to Document Requests:

- Serve written responses to document requests within 30 days after the service of the request (Mo. Sup. Ct. R. 58.01(c)(1))
- Identify the responding party and the number of the set of requests (Mo. Sup. Ct. R. 58.01(c)(2))

Deadline to Respond:

- Responses must be served within 30 days after the service of the request, or 45 days for a defendant (Mo. Sup. Ct. R. 58.01(c)(1))

Formatting Responses:

- Include a caption and title, general responses and objections, specific responses and objections, and signature block (Mo. Sup. Ct. R. 58.01(c))

Documents and Data:

- Discoverable documents and data include physical documents, digital files, audio and video recordings, social media posts, correspondence, and medical records

Medical Information:

- Medical information is subject to discovery if a mental or physical condition of a party is in controversy (Brandt v. Medical Defense Associates, 856 S.W.2d 667 (Mo. 1993))

Objections:
  1. General objections: Must clearly indicate whether any responsive materials are being withheld on the basis of the objection (Mo. Sup. Ct. R. 56.01(c)(1)(B)(3)).
  2. Non-existence: If a requested document does not exist, you may object on this basis. This objection may arise if the document was never created, was created but subsequently lost, or was created but later destroyed according to a record retention policy. The burden is on the requesting party to prove the document's existence (State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 327 (Mo. App. E.D. 1985)).
  3. Not in possession, custody, or control: If a party does not have possession, custody, or control of the requested documents or things, they may object on this ground (Mo. Sup. Ct. R. 58.01(a)(1)).
  4. Vague description or lack of reasonable particularity: If the request is vague and does not describe the requested documents or things with reasonable particularity, you may object to the request (State ex Rel. Upjohn Co. v. Dalton, 829 S.W.2d 83 (Mo. Ct. App. 1992); State ex rel. Kawasaki Motors Corp. v. Ryan, 777 S.W.2d 247 (Mo. App. E.D. 1989)).
  5. Privileged or attorney work product: If the requested material is privileged or constitutes attorney work product, you can object to the request. The objection must state information that will permit others to assess the applicability of the privilege or work product doctrine without revealing the protected information (Mo. Sup. Ct. R. 58.01(c)(3); State ex Rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364 (Mo. 2005)).
  6. Overbroad requests: If a request is overly broad, seeking documents unrelated to the subject of the case, or not limited to a particular time period, you may object to the request (State ex rel. Coffman Grp., L.L.C. v. Sweeney, 219 S.W.3d 763, 768 (Mo. App. S.D. 2005); State ex Rel. Upjohn Co. v. Dalton, 829 S.W.2d 83 (Mo. Ct. App. 1992)).
  7. Cumulative, duplicative, or unduly burdensome: If the discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive, you may object to the request (Mo. Sup. Ct. R. 56.01(b)(2)). Additionally, if the request is unduly burdensome or oppressive, you may object and seek a protective order under Mo. Sup. Ct. R. 56.01(c).
  8. Outside the scope of permissible discovery: If the proposed discovery is outside the scope permitted by Rule 56.01(b)(1), you may object to the request (Mo. Sup. Ct. R. 56.01(b)(2)).

When raising objections, it is important to be specific and provide detailed reasons for each objection, following the guidance provided in Mo. Sup. Ct. R. 58.01(c)(1)(B)(2) and Mo. Sup. Ct. R. 56.01(c)(1)(B)(3). Courts tend to disfavor generalized or boilerplate objections and give greater consideration to detailed objections to specific requests.

Motion Practice:

- Move for a protective order if the request for production is burdensome or otherwise improper (Mo. Sup. Ct. R. 56.01(c))
- Attempt to resolve disputes concerning the scope of discovery requests informally before seeking the intervention of the court (Mo. Sup. Ct. R. 56.01(g))

Serving Responses:

- Serve responses within 30 days after the service of the request, or 45 days for a defendant (Mo. Sup. Ct. R. 58.01(c)(1))
- Do not file responses with the court unless they are relevant to a pending motion or filing is ordered by the court (Mo. Sup. Ct. R. 58.01(c)(6))

Applicable Rules:

Document requests are governed by Mo. Sup. Ct. R. 56.01(b) and 58.01(a)(1) for obtaining production or inspection of documents or tangible things.

Entry to land for discovery purposes is covered by Mo. Sup. Ct. R. 58.01(a)(2).

Control over documents is the key factor, as established in Hancock v. Shook, 100 S.W.3d 786, 796 (Mo. 2003).

Request to Party:

Requests can be served on a plaintiff after the commencement of the action, and on a defendant with or after the service of the summons and complaint (Mo. Sup. Ct. R. 58.01(b)(2)).

Requests must list items to be inspected, describe each item with reasonable particularity, and state a reasonable time, place, and manner for inspection (Mo. Sup. Ct. R. 58.01(b)(1)).

Request to Nonparty:

Independent actions against nonparties for document production or land entry are allowed (Mo. Sup. Ct. R. 58.01(a)).

Subpoena duces tecum is commonly used for nonparty requests (Mo. Sup. Ct. R. 57.09).

Deadline to Respond:

Responses must be served within 30 days after the service of the request, or within 45 days for a defendant (Mo. Sup. Ct. R. 58.01(c)(1)).

The court may allow a shorter or longer time.

ESI:

Cost-sharing for ESI production may be ordered by the court in appropriate cases (Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127, 146 (E.D. Mich. 2009)).

Mo. Sup. Ct. R. 56.01(b) allows for consideration of protective order conditions on e-discovery.

ESI can be requested in native format (Mo. Sup. Ct. R. 56.01).

Drafting Document Requests:

Requests should include a caption and title, demand, definitions, instructions, and requests.

Requests must specify items to be inspected, a reasonable time/place/manner for inspection, and the form of ESI production (Mo. Sup. Ct. R. 58.01).

Scope:

Discovery scope is broad, including any non-privileged matter relevant to the subject matter of the action (Mo. Sup. Ct. R. 56.01(b)(1)).

Service Requirements:

Copies of requests must be served on all parties not in default (Mo. Sup. Ct. R. 58.01(b)(3)).

Electronic copies must be provided in a commonly used medium and format (Mo. Sup. Ct. R. 58.01(b)(3)).

Service by Electronic Filing:

Attorneys in good standing with the Missouri bar must file electronically (Mo. Sup. Ct. R. 103.08).

Filing is made by submitting a PDF document and attachments through the electronic filing system (Mo. Sup. Ct. R. 103.04).

Moving to Compel Production:

If a party objects, fails to respond, or fails to permit inspection, a motion to compel production or inspection can be filed (Mo. Sup. Ct. R. 58.01(e)).

Noncompliance with an order to compel may result in sanctions, including striking pleadings, staying proceedings, dismissing the action, or rendering a default judgment (Mo. Sup. Ct. R. 61.01(d)(2)).

Interrogatories
  • Responding
  • Propounding
Protective Orders (Mo. Sup. Ct. R. 56.01(c))
  • Court may issue protective orders for good cause to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.
  • Protective orders can limit the scope, method, or terms of discovery, or restrict disclosure of confidential information.
Interrogatory Topics
  • Personal background, details about events, identifying information about parties, witnesses, and experts, relevant documents, admissions, insurance coverage, financial condition, statements, damages sought, and electronic evidence.
Applicable Rules (Mo. Sup. Ct. R. 57.01)
  • Answer each interrogatory separately and fully in writing, under oath, with a sworn statement.
  • Title of the response must identify the responding party and the number of the set of interrogatories.
  • Provide information available to the party; cannot be required to produce information not available.
Timing for Response (Mo. Sup. Ct. R. 57.01(c)(1))
  • Serve answers and objections within 30 days after service of interrogatories (45 days for defendants after appearance or process service).
  • Court may allow a longer or shorter time.
Number of Interrogatories Allowed (Mo. Sup. Ct. R. 57.01(a))
  • Limited to 25 interrogatories, including discrete subparts, unless court grants leave or answering party agrees to more.
Answering with Business Records (Mo. Sup. Ct. R. 57.01(c)(4))
  • Sufficient to specify records and provide reasonable opportunity to examine, audit, or inspect them.
Signing Requirement (Mo. Sup. Ct. R. 57.01(c)(5))
  • Answers must be signed by the person making them; objections must be signed by the attorney or unrepresented party asserting them.
Scope of Interrogatories (Mo. Sup. Ct. R. 56.01(b)(1))
  • Discovery allowed for any non-privileged matter relevant to the subject matter involved in the pending action.
Proper Objections (Mo. Sup. Ct. R. 57.01(c)(3))
  • State each reason for objection, including privileges, work product doctrine, and objections to unclear or vague language.
  • Provide a privilege log if asserting privilege or work product protection.
Drafting the Response
  • Include a caption and title, general responses and objections, specific responses and objections, verification, and signature block.
  • Repeat the language of each interrogatory and follow with a specific response (Mo. Sup. Ct. R. 57.01(c)(1)(B)(2)).
Service Requirements (Mo. Sup. Ct. R. 57.01(c)(1) and 57.01(d))
  • Serve answers and objections within the specified time frame.
  • Do not file responses with the court unless relevant to a pending motion or ordered by the court; file a certificate of service.
Objections (Mo. Sup. Ct. R. 57.01(c)(3))
  1. Relevance: If an interrogatory seeks information that is not relevant to the claims or defenses involved in the case, an objection on the grounds of relevance can be raised (Mo. Sup. Ct. R. 56.01(b)(1)).
  2. Privilege: If the information sought is protected by a recognized legal privilege, such as attorney-client privilege, an objection can be lodged to withhold the privileged information (Mo. Sup. Ct. R. 57.01(c)(3)). A privilege log must be provided, detailing enough information to assess the claim without revealing the protected information (State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367–68 (Mo. 2004)).
  3. Work Product Doctrine: If the information sought is protected by the work product doctrine, which shields materials prepared in anticipation of litigation, an objection can be raised (Mo. Sup. Ct. R. 57.01(c)(3)). A privilege log must also be provided in this case.
  4. Vagueness or Ambiguity: If the language of an interrogatory is unclear, vague, or ambiguous, an objection can be lodged, stating that the request is vague and that the responding party cannot adequately respond unless the propounding party provides clarification or a specific definition (Mo. Sup. Ct. R. 57.01(c)(3)).
  5. Undue Burden or Harassment: If an interrogatory imposes an undue burden or appears to be harassing, an objection can be raised on these grounds (Mo. Sup. Ct. R. 56.01(c)). The court may grant a protective order in response to such an objection.
  6. Beyond Scope of Discovery: If an interrogatory seeks information beyond the permissible scope of discovery, an objection can be lodged (Mo. Sup. Ct. R. 56.01(b)(1)).
  7. Exceeding the Limit on Interrogatories: If the total number of interrogatories propounded by the opposing party exceeds the limit of 25, including all discrete subparts, an objection can be raised (Mo. Sup. Ct. R. 57.01(a)).
Drafting the Response
  • Include a caption and title, general responses and objections, specific responses and objections, verification, and signature block.
  • Repeat the language of each interrogatory and follow with a specific response (Mo. Sup. Ct. R. 57.01(c)(1)(B)(2)).
Service Requirements (Mo. Sup. Ct. R. 57.01(c)(1) and 57.01(d))
  • Serve answers and objections within the specified time frame.
  • Do not file responses with the court unless relevant to a pending motion or ordered by the court; file a certificate of service.
Applicable Rules:
Number of Interrogatories Allowed:
  • Limited to 25 interrogatories, including all discrete subparts, except with leave of court or agreement of the answering party (Mo. Sup. Ct. R. 57.01(a)).
Contention Interrogatories:
Formatting Requests:
  • Requesting party must serve an electronic copy in a commonly used medium and format that can be read by most commonly used word processing programs (Mo. Sup. Ct. R. 57.01(b)(3)).
Answering with Business Records:
Propounding Routine Questions:
  • Interrogatories should inquire about personal background, details about events surrounding the claim, identifying information about parties and witnesses, information about relevant documents, admissions made by parties, potential expert witnesses, and other relevant information depending on the subject matter of the case.
Drafting Interrogatories:
  • Interrogatories should contain a caption and title, demand, definitions, instructions, interrogatories, and signature block.
  • Draft concise, clear, and direct questions to obtain specific answers.
  • Include definitions and instructions to ensure clarity and specificity in responses.
  • Organize interrogatories by pleadings, cause of action, or chronologically.
Information to Request:
  • Use interrogatories to uncover facts and gather information about critical issues in the case.
  • Tailor specific interrogatories to the facts of the case and identify the issues and types of information needed to address those issues.
Service Requirements:
Moving to Compel Answers:
  • A party may move for an order to compel an answer to an interrogatory after the responding party has asserted an Objection or failed to answer (Mo. Sup. Ct. R. 57.01(e)).
  • Parties should attempt to resolve discovery disputes before seeking the intervention of the court through a motion to compel, as required by Mo. Sup. Ct. R. 56.01(g).
Subpeonas
  • Responding
  • Propounding
Protective Orders (Mo. Sup. Ct. R. 56.01(c))
  • Court may issue protective orders for good cause to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.
  • Protective orders can limit the scope, method, or terms of discovery, or restrict disclosure of confidential information.
Applicable Rules (Mo. Sup. Ct. R. 57.01)
  • Answer each interrogatory separately and fully in writing, under oath, with a sworn statement.
  • Title of the response must identify the responding party and the number of the set of interrogatories.
  • Provide information available to the party; cannot be required to produce information not available.
Timing for Response (Mo. Sup. Ct. R. 57.01(c)(1))
  • Serve answers and objections within 30 days after service of interrogatories (45 days for defendants after appearance or process service).
  • Court may allow a longer or shorter time.
Number of Interrogatories Allowed (Mo. Sup. Ct. R. 57.01(a))
  • Limited to 25 interrogatories, including discrete subparts, unless court grants leave or answering party agrees to more.
Answering with Business Records (Mo. Sup. Ct. R. 57.01(c)(4))
  • Sufficient to specify records and provide reasonable opportunity to examine, audit, or inspect them.
Signing Requirement (Mo. Sup. Ct. R. 57.01(c)(5))
  • Answers must be signed by the person making them; objections must be signed by the attorney or unrepresented party asserting them.
Scope of Interrogatories (Mo. Sup. Ct. R. 56.01(b)(1))
  • Discovery allowed for any non-privileged matter relevant to the subject matter involved in the pending action.
Proper Objections (Mo. Sup. Ct. R. 57.01(c)(3))
  • State each reason for objection, including privileges, work product doctrine, and objections to unclear or vague language.
  • Provide a privilege log if asserting privilege or work product protection.
Drafting the Response
  • Include a caption and title, general responses and objections, specific responses and objections, verification, and signature block.
  • Repeat the language of each interrogatory and follow with a specific response (Mo. Sup. Ct. R. 57.01(c)(1)(B)(2)).
Service Requirements (Mo. Sup. Ct. R. 57.01(c)(1) and 57.01(d))
  • Serve answers and objections within the specified time frame.
  • Do not file responses with the court unless relevant to a pending motion or ordered by the court; file a certificate of service.
Interrogatory Topics
  • Personal background, details about events, identifying information about parties, witnesses, and experts, relevant documents, admissions, insurance coverage, financial condition, statements, damages sought, and electronic evidence.
Objections (Mo. Sup. Ct. R. 57.01(c)(3))
  1. Relevance: If an interrogatory seeks information that is not relevant to the claims or defenses involved in the case, an objection on the grounds of relevance can be raised (Mo. Sup. Ct. R. 56.01(b)(1)).
  2. Privilege: If the information sought is protected by a recognized legal privilege, such as attorney-client privilege, an objection can be lodged to withhold the privileged information (Mo. Sup. Ct. R. 57.01(c)(3)). A privilege log must be provided, detailing enough information to assess the claim without revealing the protected information (State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367–68 (Mo. 2004)).
  3. Work Product Doctrine: If the information sought is protected by the work product doctrine, which shields materials prepared in anticipation of litigation, an objection can be raised (Mo. Sup. Ct. R. 57.01(c)(3)). A privilege log must also be provided in this case.
  4. Vagueness or Ambiguity: If the language of an interrogatory is unclear, vague, or ambiguous, an objection can be lodged, stating that the request is vague and that the responding party cannot adequately respond unless the propounding party provides clarification or a specific definition (Mo. Sup. Ct. R. 57.01(c)(3)).
  5. Undue Burden or Harassment: If an interrogatory imposes an undue burden or appears to be harassing, an objection can be raised on these grounds (Mo. Sup. Ct. R. 56.01(c)). The court may grant a protective order in response to such an objection.
  6. Beyond Scope of Discovery: If an interrogatory seeks information beyond the permissible scope of discovery, an objection can be lodged (Mo. Sup. Ct. R. 56.01(b)(1)).
  7. Exceeding the Limit on Interrogatories: If the total number of interrogatories propounded by the opposing party exceeds the limit of 25, including all discrete subparts, an objection can be raised (Mo. Sup. Ct. R. 57.01(a)).
Drafting the Response
  • Include a caption and title, general responses and objections, specific responses and objections, verification, and signature block.
  • Repeat the language of each interrogatory and follow with a specific response (Mo. Sup. Ct. R. 57.01(c)(1)(B)(2)).
Service Requirements (Mo. Sup. Ct. R. 57.01(c)(1) and 57.01(d))
  • Serve answers and objections within the specified time frame.
  • Do not file responses with the court unless relevant to a pending motion or ordered by the court; file a certificate of service.
Types of Discovery Subpoena:
  1. Attend and give testimony (Mo. Sup. Ct. R. 57.09(a)(4))
  2. Produce and permit inspection and copying of documents (subpoena duces tecum) (Mo. Sup. Ct. R. 57.09(b); Mo. Sup. Ct. R. 58.02(a)(1))
  3. Permit inspection, copying, testing, or sampling of tangible things (Mo. Sup. Ct. R. 57.09(a)(4), (b); Mo. Sup. Ct. R. 58.02(a)(2))
Rules Governing Subpoenas (Mo. Sup. Ct. R. 57.09(a)):
  1. Issued by an officer or person before whom depositions may be taken or the clerk of the court in which the civil action is pending
  2. State the name of the court and the style of the civil action
  3. State the name, address, and telephone number of all attorneys of record and self-represented parties
  4. Command each person to whom it is directed to attend and give testimony at a specified time and place
Required Content in Discovery Subpoenas (Mo. Sup. Ct. R. 57.09(a), 58.02(a)(3)):
  1. Name of the court
  2. Style of the civil action
  3. Time and place where the subject must appear
  4. For each attorney of record and self-represented party: name, address, and telephone number
Deposition on Written Questions (Mo. Sup. Ct. R. 57.04(a)):
  1. Attendance of a witness for a deposition on written questions may be compelled by the use of a subpoena
  2. Deposition on written questions may be taken of a public or private corporation, partnership, association, or governmental agency (Mo. Sup. Ct. R. 57.03(b)(4))
Subpoena Duces Tecum (Mo. Sup. Ct. R. 57.09(b)):
  1. Command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein
  2. Party responsible for the issuance and service of a subpoena must take reasonable steps to avoid imposing undue burden or expense on a nonparty subject to the subpoena
Request to a Nonparty Out-of-State (Mo. Sup. Ct. R. 57.08):
  1. File an ex parte application for an order directing the issuance of a subpoena duces tecum in the appropriate venue
Service (Mo. Sup. Ct. R. 57.01(d), 57.09(d)):
  1. Subpoena may be served by the sheriff, a sheriff's deputy, or any other person who is not a party and is at least 18 years of age
  2. Service must be made by delivering a copy to the person and giving them the fees and mileage the witness would have been entitled to receive for attending court
Discovery Subpoena Enforcement (Mo. Sup. Ct. R. 57.09(c), (f), 58.02(e)(3), (f)):
  1. If the subject of the subpoena serves written objections, the party who issued and served the subpoena may move for an order to compel production
  2. If the nonparty who is the subject of the subpoena fails to obey the subpoena, the party who issued and served the subpoena may move for an order holding the nonparty in contempt
  3. The court may quash or modify a subpoena duces tecum if it is unreasonable or oppressive (Mo. Sup. Ct. R. 57.09(b)(1))
  4. The court may require the party who issued and served the subpoena to advance the reasonable cost of producing the items (Mo. Sup. Ct. R. 57.09(b)(2))

Nevada Discovery Cheat Sheet

  • Requests for Production
  • Interrogatories
Requests for Production
  • Responding
  • Propounding
Nevada State Court Document Requests Cheat Sheet
  1. Document requests allow broad access to information under Nev. R. Civ. P. 34(a)(1), including:
    • Documents
    • Electronically stored information (ESI)
    • Tangible things
    • Inspection of premises
  2. Timing for response: 30 days to serve responses to requests for production of documents and things (RFPs) (Nev. R. Civ. P. 34(b)(2)(A))
  3. Responding to document requests: State that inspection and related activities will be permitted as requested or state the ground for objecting to the request, with specificity, including the reasons (Nev. R. Civ. P. 34(b)(2)(B))
  4. Scope of discovery: Matters relevant to any party's claim or defense, and information need not be admissible to be discoverable (Nev. R. Civ. P. 26(b)(1))
  5. Electronic discovery: Governed by Nev. R. Civ. P. 26(b)(2)(B) and Nev. R. Civ. P. 34 (particularly 34(b)(2)(D) and 34(d))
  6. Drafting the response: Include a caption and title, general responses and objections, specific responses and objections, and a signature block (Nev. R. Civ. P. 26(g))
  7. Objections to document requests: State reasons for objection in response (Nev. R. Civ. P. 34(b)(2)(C)) and consider filing a motion for a protective order under Nev. R. Civ. P. 26(c)
  8. Common grounds for objecting to or refusing to produce a requested document:
    • Nonexistence: The document does not exist, as it was never created, lost, or destroyed. In cases where the document was destroyed, describe your client's record retention policy (Nev. R. Civ. P. 34(b)(2)(B)).
    • Not in possession: The document is not in the possession, custody, or control of your client (Nev. R. Civ. P. 34(a)(1)). Note that there is an ongoing duty to supplement your client's responses to RFPs if you learn a response is incomplete or incorrect (Nev. R. Civ. P. 26(e)(1)).
    • Beyond the scope of discovery: The request is beyond the scope of discovery as stated in the Nevada Rules. Explain why the material requested is not reasonably calculated to lead to the discovery of admissible evidence (Nev. R. Civ. P. 26(b)(1)).
    • Vagueness: The request is vague and not described with "reasonable particularity." Explain why you cannot respond with the description provided in the request (Nev. R. Civ. P. 34(b)(1)(A)).
    • Undue burden: The request is unduly burdensome. Under Nev. R. Civ. P. 26(b)(2)(B)(iii), a party does not have to produce information if it is unreasonable, unduly burdensome, or expensive.
    • Privilege: The requested material is privileged. When information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim must be made expressly and supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the requesting party to contest the claim (Nev. R. Civ. P. 26(b)(5)).
  9. Consequences of improper objections: Requesting party may file a motion to compel disclosure (Nev. R. Civ. P. 37(a)(3)) and for sanctions (Nev. R. Civ. P. 37(a)(5))
Applicable Rules:

Nev. R. Civ. P. 34 (document production), Nev. R. Civ. P. 45 (subpoenas for nonparty discovery), and Nev. R. Civ. P. 26 (scope and limits of discovery).

Electronic Discovery:

Governed by Nev. R. Civ. P. 34(b) and treated similarly to other document production. Consider scheduling a pretrial discovery conference for cases with substantial electronic discovery.

Scope of Discovery:

Must be relevant, nonprivileged, and proportional to the needs of the case (Nev. R. Civ. P. 26(b)(1)).

Signature Requirement:

Disclosures must be signed by counsel or a party if pro se (Nev. R. Civ. P. 26(g)(1)).

Deadline to Respond:

30 days for response to RFPs, can be altered by stipulation or court order (Nev. R. Civ. P. 34(b)(2)(A)).

Documents in Party's Control:

Must be in a party's "possession, custody, or control" (Nev. R. Civ. P. 34(a)(1)). Nevada follows the "legal control" standard (Nev. Dep't of Taxation v. Eighth Judicial Dist. Court, 466 P.3d 1281 (Nev. 2020)).

Undue Burden:

Requesting party must pay the reasonable cost of copying documents and the cost of media storage devices for ESI (Nev. R. Civ. P. 34(d)).

Drafting Document Requests:

Include a caption and title, demand, definitions, instructions, and requests. Requests must specify items with reasonable particularity, a reasonable time/place/manner for inspection, and the form(s) for ESI production (Nev. R. Civ. P. 34).

Demands Regarding Prior Actions:

Request discovery from prior actions under Nev. R. Civ. P. 26(h).

Service Requirements:

Serve RFPs on another party without leave of court (Nev. R. Civ. P. 26(a)). Do not file with the court unless ordered.

Interrogatories
  • Responding
  • Propounding
Overview
Objections
Preparing Written Responses
Service of Responses
Seeking Protection from Court
Supplementing Interrogatory Answers
Applicable Rules:

- Interrogatories are governed by Nev. R. Civ. P. 33.
- They can be used to obtain full disclosure of any information relevant to the litigation, including documents, tangible things, and witness information.

 
Number of Interrogatories:

- Limited to 40 interrogatories per party without leave of court or agreement among counsel (Nev. R. Civ. P. 33(a)(1)).
- Subparts count as separate interrogatories for the 40-interrogatory limit.

 
Timing:

- No specific limit on when interrogatories may be served (Nev. R. Civ. P. 26(d)(1)).
- Responses are due within 30 days of service, unless a court order or stipulation states otherwise (Nev. R. Civ. P. 33(b)(2)).

 
Interrogatories Requiring Identification of Witnesses:

- Lay witnesses: Request names, addresses, subjects of testimony, and any relationship with a party (Nev. R. Civ. P. 26(b)).
- Independent experts: Request name, address, subjects of testimony, opinions to be elicited, and qualifications (Nev. R. Civ. P. 26(b)).
- Controlled experts: Request name, address, subjects of testimony, conclusions and opinions, bases for conclusions and opinions, qualifications, and any reports prepared about the case (Nev. R. Civ. P. 26(b)).

 
Filing and Serving Interrogatories:

- Do not file interrogatories with the court unless necessary for a motion or court order (Nev. R. Civ. P. 5(c),(d)).
- Serve all interrogatories on all parties, even those not targeted by the interrogatories (Nev. R. Civ. P. 5, Nev. R. Civ. P. 33).

 
Responding to Interrogatories:

- Sworn responses must be served within 30 days (Nev. R. Civ. P. 33(b)(2)).
- Evasive or incomplete responses can be treated as a failure to disclose, answer, or respond (Nev. R. Civ. P. 37(a)(4)).
- Failure to respond properly could result in sanctions (Nev. R. Civ. P. 37(b)(3)).

 
Objections:

- Objections may be made to interrogatories deemed outside of the scope of discovery or otherwise objectionable (Nev. R. Civ. P. 26).
- Objecting party may file a motion for a protective order or object by formal response (Nev. R. Civ. P. 33(b)(4)).
- If a party objects, the burden is on the party who served the interrogatories to bring the dispute before the court, typically through a motion to compel or a motion for sanctions (Nev. R. Civ. P. 37(d)(1)(A)).

New Jersey Discovery Cheat Sheet

  • Requests for Admission
  • Requests for Production
  • Interrogatories
  • Motions to Compel
Requests for Admission
  • Responding
  • Propounding
Timing of Response:
Serving Response:
Substance of Response:
Objections:
  • Relevance: A party may object to a request for admission if the matter is not relevant to the subject matter of the litigation or if the request is not reasonably calculated to lead to the discovery of admissible evidence (N.J. Ct. R. 4:10-2(a)). The burden is on the objecting party to demonstrate the lack of relevance.
  • Overly Broad or Unduly Burdensome: If a request for admission is overly broad, unduly burdensome, or oppressive, a party may object to it (N.J. Ct. R. 4:10-2(a)). The objecting party must provide specific reasons why the request is overly broad or unduly burdensome.
  • Privileged Information: A party may object to a request for admission seeking information protected by a recognized privilege, such as attorney-client privilege or work product doctrine (N.J. Ct. R. 4:10-2(c); N.J. R. Evid. 504). The objecting party must assert the applicable privilege and provide enough information for the court to determine whether the privilege applies.
  • Vague or Ambiguous: If a request for admission is vague or ambiguous, a party may object to it (N.J. Ct. R. 4:10-2(a)). The objecting party must explain why the request is vague or ambiguous and how it prevents a proper response.
  • Request for Opinion: As of September 1, 2022, objections based upon the request for admission as to matters of opinion are no longer viable (N.J. Ct. R. 4:22-1; New Jersey 2022 Omnibus Rule Amendment Order (Aug. 5, 2022)). Prior to this date, a party could object to a request for admission if it sought an opinion or legal conclusion.
  • Public Policy: A party may object to a request for admission if it violates public policy. For example, a request seeking information that would invade the privacy of a non-party could be objectionable on public policy grounds. The objecting party must provide reasons why public policy considerations prevent the disclosure of the information sought.
  • Information Beyond Responding Party's Control: A party may object to a request for admission if the information sought is beyond the responding party's control, such as information held by a third party (N.J. Ct. R. 4:22-1). The objecting party must demonstrate that a reasonable inquiry was made and that the information known or readily obtainable is insufficient to enable an admission or denial.
Sufficiency of Responses:
Recovery of Expenses:
  • Requesting party may apply for an order to recover reasonable expenses if the nonadmitting party is proven wrong (N.J. Ct. R. 4:23-3)
  • Court must make the order unless certain conditions are met (N.J. Ct. R. 4:23-3)
Timing:

- RFAs may be served at any time after the commencement of the action (N.J. Ct. R. 4:22-1)

- Responses to RFAs must be served within 30 days (N.J. Ct. R. 4:22-1)

Method of Service:

- Send requests by certified mail, return receipt requested to fix the date the 30-day period begins (N.J. Ct. R. 4:22-1)

Formal Requirements:

- Each matter for which an admission is requested must be set forth separately in the request (N.J. Ct. R. 4:22-1)

Scope:

- RFAs may ask for the truth of any matters of fact or opinion within the scope of N.J. Ct. R. 4:10-2 (New Jersey 2022 Omnibus Rule Amendment Order)

- RFAs must be directed to matters that are relevant, factual, not privileged, and deal with central controverted issues in the case (Dewalt v. Dow Chemical Co., 237 N.J. Super. 54, 566 A.2d 1168 (App. Div. 1989))

Requirements Regarding Content:

- Requests should relate to relevant and unprivileged matters, deal with facts or opinions, be simple and clear, answerable by the person to whom the request is directed, and not canvass the entire range of evidence in the case (Van Langen v. Chadwick, 173 N.J. Super. 517, 414 A.2d 618)

- A written request for an admission may also seek the genuineness of any documents described in the request (N.J. Ct. R. 4:22-1)

Fees for Failure to Admit:

- N.J. Ct. R. 4:23-3 provides for the payment of costs, including attorney's fees, that result from having to prove matters that should have been admitted in response to a request for admissions.

Requests for Production
  • Responding
  • Propounding
1. Drafting (N.J. Ct. R. 4:18-1(b))
  • Include the requested documents or other material
  • State that inspection and related activities will be permitted as requested, unless there is a written objection
2. Preliminary statement (N.J. Ct. R. 4:10-2)
  • Preserve your right to object later when admissibility becomes an issue
3. Certificate or affidavit of completeness (N.J. Ct. R. 4:18-1(c))
  • Certify that a good faith search for responsive documents has been conducted, and the production is complete and accurate
4. Electronically stored information (ESI) (N.J. Ct. R. 4:10-2(b)(2)(B) and (C))
  • Produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms
  • Do not produce the same ESI in more than one form
5. Objections
6. Withholding material based on privilege (N.J. Ct. R. 4:10-2(e)(1))
  • Produce a privilege log when claiming that otherwise discoverable material is being withheld due to privilege or work product protection
7. Protective orders (N.J. Ct. R. 4:10-3)
  • Seek a protective order against discovery that will result in annoyance, embarrassment, oppression, undue burden, or expense
8. Redaction of personal identifying information (N.J. Ct. R. 1:38-7(e))
  • Redact personal identifiers such as Social Security number, driver's license number, vehicle plate number, insurance policy number, active financial account number, active credit card number, and information as to an individual's military status
9. Serving responses (N.J. Ct. R. 4:18-1(b))
  • Serve a written response within 35 days after the service of the request (50 days for a defendant after service of the summons and complaint)
10. Supplementing responses (N.J. Ct. R. 4:18-1(b)(3))
  • Continuing obligation to supplement responses with additional documents that become available after the initial response has been provided
  • Serve supplemental response "promptly" (consider applying the 20-day rule from N.J. Ct. R. 4:17-7)
Making Requests for Discovery and Inspection (N.J. Ct. R. 4:18-1(a))
  • Scope of Available Discovery (N.J. Ct. R. 4:10-2)
    • Broad scope: any matter, not privileged, relevant to the subject matter involved in the pending action
    • Includes existence, description, nature, custody, condition, and location of items
  • Requesting Entry and Inspection of Designated Land (N.J. Ct. R. 4:18-1(a)(2))
    • Inspection, measuring, surveying, photographing, testing, and sampling of designated land or property
  • Requesting Inspection of Tangible Things (N.J. Ct. R. 4:18-1(a))
  • Documents Referred to in a Pleading (N.J. Ct. R. 4:18-2)
    • Must be produced within five days of a written demand
  • Drafting Requirements (N.J. Ct. R. 4:18-1(b))
    • Set forth items to be inspected or produced by individual item or category
    • Describe each item or category with reasonable particularity
  • Time, Place, and Manner (N.J. Ct. R. 4:18-1(b))
    • Specify a reasonable time (at least 35 days in advance), place, and manner of inspection
    • Inspection should take place during normal business hours and at the office of the responding party's attorney
  • Serving Request (N.J. Ct. R. 4:18-1(b) and N.J. Ct. R. 1:5)
    • Serve request upon the plaintiff at any time after commencement of the action
    • Serve request upon any other party with or after service of the summons and complaint
    • Simultaneously serve a copy of the request on all other parties to the action
    • Follow detailed instructions in N.J. Ct. R. 1:5 for service, including serving the attorney if the party is represented, and adding five days to the prescribed period if service is by mail
    • Do not file requests or responses with the court unless ordered otherwise (N.J. Ct. R. 1:5-6)
  • Interrogatories
    • Responding
    • Propounding
    1. Timing for response: Answers must be served within 60 days after receipt of the interrogatory (N.J. Ct. R. 4:17-4(b)).
    2. Identifying proper person to answer interrogatories: The party upon whom the interrogatories were served, or their authorized officer or agent, should answer them in writing and under oath (N.J. Ct. R. 4:17-4(a)).
    3. Preparing answers to interrogatories: Answers must be in writing, under oath, and fully responsive to each question (N.J. Ct. R. 4:17-4(a)).
    4. Adoptive admission: A statement that a party-opponent has adopted "by word or conduct or in whose truth the party-opponent has manifested belief" (N.J. R. Evid 803(b)(2)).
    5. Interrogatories regarding experts or treating physicians: The answering party must attach an exact copy of the entire report or reports rendered by the expert or physician (N.J. Ct. R. 4:17-4(e)).
    6. Personal injury cases: Parties must serve an executed form authorizing disclosure of medical records pursuant to HIPAA (N.J. Ct. R. 4:17-4(f)).
    7. Responding to Uniform Interrogatories: Parties are required to use uniform interrogatories in certain actions and are permitted to propound an additional 10 supplemental questions (N.J. Ct. R. 4:17-1(b)(1)).
    8. Business records: If answering interrogatories by specifying records or electronically stored information, provide sufficient detail for the party seeking the information to locate and identify the source (N.J. Ct. R. 4:17-4(d)).
    9. Objections:
      • Relevance: A party may object to an interrogatory if the information sought is not relevant to the subject matter of the action. Relevance is determined by the New Jersey Rules of Evidence, specifically N.J. R. Evid. 401 and 402. The information sought must have a tendency to prove or disprove a fact in dispute.
      • Privilege: If the information sought is protected by a privilege, such as attorney-client privilege (N.J. R. Evid. 504) or the work-product doctrine (N.J. R. Evid. 530), a party may object to the interrogatory. Privileged information should not be disclosed, and the objecting party must specify the privilege being claimed (N.J. Ct. R. 4:17-1(b)(3) and 4:10-2(e)).
      • Overly broad or unduly burdensome: A party may object to an interrogatory if it is overly broad or unduly burdensome, as outlined in N.J. Ct. R. 4:17-1(a). The requesting party should be more specific in their request to avoid this objection.
      • Compound or complex questions: Interrogatories should be simple and direct. If a question is compound or complex, a party may object based on N.J. Ct. R. 4:17-1(a), which requires that each interrogatory be "simple and direct."
      • Previously answered or available information: If the information requested in an interrogatory has already been provided or is readily available, a party may object based on the principle of proportionality. This is in line with N.J. Ct. R. 4:17-1(a), which states that interrogatories should not be unduly repetitious or cumulative.
      • Improper form: If an interrogatory is not in the proper form required by the court rules, a party may object based on N.J. Ct. R. 4:17-3, which requires that interrogatories be "in the form provided by this rule."
    10. Time deadlines and service requirements: Answers must be served within 60 days after receipt of the interrogatory, and any necessary motions or requests for enlargement or shortening of time must be made within the 60-day period (N.J. Ct. R. 4:17-4(b)).
    11. Amending answers: Amended answers must be served no later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent extension order (N.J. Ct. R. 4:17-7).
    Applicable Rules:

    - N.J. Ct. R. 4:10-2 (scope of discovery)
    - N.J. Ct. R. 4:17-1 (interrogatories)
    - N.J. Ct. R. 4:17-2 (timing for response)
    - N.J. Ct. R. 4:17-3 (formatting and procedural requirements)
    - N.J. Ct. R. 4:17-4 (service and deadlines)
    - N.J. Ct. R. 4:17-5 (objections and motions)
    - N.J. Ct. R. 4:17-6 (protective orders)
    - N.J. Ct. R. Appx. II (Uniform Interrogatories)

     
    Key Points:
    1. Interrogatories should focus on finding admissible and relevant evidence (N.J. R. Evid. 401; State v. Wilson, 135 N.J. 4 (1994)).
    2. Discovery can seek out information that is useful, relates to issues in the case, or relates to the credibility of a witness (Capital Health Sys., Inc. v. N.J. Dep't of Banking & Ins., 445 N.J. Super. 522, 139 A.3d 134 (App. Div. 2016)).
    3. Claims of privilege can be cited as a reason not to disclose information (N.J. Ct. R. 4:17-1; N.J. Ct. R. 4:10-2(e)).
    4. Interrogatories may seek information that is inadmissible at trial if it is reasonably calculated to lead to the discovery of admissible evidence (N.J. Ct. R. 4:10-2(a); Pfenninger v. Hunterdon H.S, 167 N.J. 230, 770 A.2d 1126 (N.J. 2001)).
    5. Discovery rules regarding the identity of knowledgeable persons are to be construed liberally (Lindenmuth v. Holden, 296 N.J. Super. 42 (App. Div. 1996)).
    6. If uniform interrogatories are not required, initial interrogatories may be served within 40 days after service of defendant's answer (N.J. Ct. R. 4:17-2).
    7. Formatting requirements include numbering interrogatories and leaving sufficient blank space for answers (N.J. Ct. R. 4:17-3).
    8. Uniform interrogatories are required in certain cases, with an additional 10 supplemental questions allowed (N.J. Ct. R. 4:17-1(b)(1); N.J. Ct. R. Appx. II).
    9. Service and deadlines for uniform interrogatories vary depending on whether you represent the plaintiff or defendant (N.J. Ct. R. 4:17-1(b)(2)).
    Motions to Compel
    • Overview
    Motion Practice Rules (N.J. Ct. R. 1:6-2(a))
    Submitting Form of Order (N.J. Ct. R. 4:42-1(e))
    • Must include a form of order detailing relief requested
    • Opposing party can object or provide their own form of order (N.J. Ct. R. 4:42-1(b), 4:42-1(c))
    Five-Day Rule (N.J. Ct. R. 4:42-1(c))
    • Applies to settling orders on notice
    • Proponent of order must notify judge and other parties of specific objections within five days, or judge may sign the order
    • If objections are made, the matter may be listed for hearing
    Filing and Serving Motion (N.J. Ct. R. 1:6-3(a))
    • Notice of motion must be filed and served no less than 16 days before motion date
    • Opposing affidavits, certifications, and objections must be filed and served no less than eight days before motion date
    • Movant's reply papers must be filed and received no less than four days before motion date
    Discovery Motion Requirements (N.J. Ct. R. 1:6-2(c))
    • Must include date of pretrial conference, arbitration schedule, and/or date(s) for calendar call or trial
    Certification of Good Faith Effort to Resolve Discovery Issues (N.J. Ct. R. 1:6-2(c))
    • Certification must state that the attorney for the moving party personally discussed or made a good faith effort to discuss resolution of pending issues with the opposing party's attorney
    Legal Brief (N.J. Ct. R. 1:6-3)
    • Movant's brief must be served with motion papers
    • Opposing brief must be served no less than eight days before motion date
    • Movant's reply brief must be served no less than four days before motion date
    Submitting Affidavits (N.J. Ct. R. 1:6-6)
    • Affidavits based on personal knowledge must be attached to motion papers for facts not on discovery record or not qualified by judicial notice
    Oral Argument (N.J. Ct. R. 1:6-2(c))
    • Court may require oral argument, or either party may request it on at least two days' notice
    Compelling Discovery
    • Applicable to interrogatories, requests for documents, requests for admissions, requests for physical examination, and depositions
    Seeking Attorney's Fees (N.J. Ct. R. 4:23-1(c))
    • Court may order a party to pay attorney's fees in certain circumstances related to motions to compel discovery
    Standard of Review on Appeal of Discovery Orders

    New York Discovery Cheat Sheet

    • Notice to Admit
    • Requests for Production
    • Interrogatories
    • Subpoenas
    • Bill of Particulars
    • Motions to Compel
    • Protective Orders
    Notice to Admit | Requests for Admission
    • Responding
    • Propounding
    Receiving Requests for Admission:

    - Purpose: Eliminate matters not in dispute in litigation (32nd Avenue LLC v. Angelo Holding Corp., 134 A.D.3d 696, 20 N.Y.S.3d 420, 2015 N.Y. Slip Op. 8824 (N.Y. App. Div. 2015)).

    - Scope: Limited to genuineness of papers/documents, accuracy of photographs, and truth of matters with no substantial dispute at trial (N.Y. C.P.L.R. § 3123(a)).

    - If improper or unreasonable: Move for a protective order under N.Y. C.P.L.R. § 3103.

    Responding to Requests for Admission:

    - Options: Admit, deny, state insufficient information, admit with qualification/explanation, assert privilege or disqualification (N.Y. C.P.L.R. § 3123).

    - Format: Sworn statement addressing each request, served on all parties (N.Y. C.P.L.R. § 3123(a)).

    - Timing: Respond within 20 days of receiving notice (N.Y. C.P.L.R. § 3123(a)).

    Objections

    Facts in substantial dispute: If the requests seek admissions on facts that are in substantial dispute, you can object to those requests (Nader v. Gen. Motors Corp., 279 N.Y.S.2d 111 (N.Y. Sup. Ct. 1967)).

    Legal conclusions and/or opinions: Requests that ask for admissions on legal conclusions or opinions are inappropriate for a notice to admit (Smith v. County of Nassau, 30 N.Y.S.3d 143 (App. Div. 2d Dep't 2016); Matter of Luthmann v. Gulino, 15 N.Y.S.3d 422 (App. Div. 2d Dep't 2015)).

    Privileged, confidential, or other similar information: If the requests seek admissions related to privileged, confidential, or other protected information, you can object to those requests (N.Y. C.P.L.R. § 3123(b)).

    Improper scope: A notice to admit should not include requests for material issues, ultimate or conclusory facts, interpretations of law, questions already admitted in responsive pleadings, or questions clearly irrelevant to the case (Villa v. New York City Housing Authority, 107 A.D.2d 619 (N.Y. App. Div. 1985)).

    Overly burdensome or excessive requests: If the notice to admit contains an excessive number of requests or the requests are overly burdensome in terms of scope or the amount of information sought, you can object and move for a protective order (Nader v. GMC, 279 N.Y.S.2d 111 (Sup. Ct. 1967)).

    Amending or Withdrawing an Admission:

    - Seek leave of court to amend, withdraw, or vacate admission if just and without prejudice to the requesting party (N.Y. C.P.L.R. § 3123(b)).

    Key Points:

    - Ensure notice to admit is proper and within the scope of N.Y. C.P.L.R. 3123(a).

    - Respond to requests within 20 days, using a sworn statement served on all parties.

    - Object to improper requests and move for a protective order if necessary.

    - Seek leave of court to amend or withdraw admission if needed.

    Serving a Notice to Admit:
     
    Drafting a Notice to Admit:
    • No cap on the number of requests
    • Scope of disclosure: Any fact that is material and necessary to prosecute or defend an action (N.Y. C.P.L.R. § 3101(a))
    • Request types: Facts, papers, photographs, and other documents relevant to the litigation (N.Y. C.P.L.R. § 3123(a))
    • Requests should be not genuinely in dispute and known or reasonably discoverable by the opposing party (N.Y. C.P.L.R. § 3123(a))
     
    Format and Style:
     
    Scope Limitations:
     
    Evaluating Responses:
     
    Obtaining Sanctions for Unreasonable Denial:
    Requests for Production
    • Responding
    • Propounding
    1. Responding to Document Requests
    2. Producing Responsive Documents
    • Produce documents as they are kept in the regular course of business or organized and labeled to correspond with the document request categories (N.Y. C.P.L.R. 3122(c))
    3. Response Considerations
    4. Caption and Title
    5. Objections
    6. Withholding Privileged Documents
    7. Protective Orders
    • Make a motion for a protective order to prevent annoyance, embarrassment, oppression, undue burden, or expense (N.Y. C.P.L.R. § 3103(a))
    8. Redaction
    • Redact portions of documents that contain privileged information or confidential personal information (22 N.Y.C.R.R. § 202.5(e))
    9. Serving the Document Request Responses
    • Serve written document request response on the propounding party within 20 days after receiving the document request (N.Y. C.P.L.R. 3122(a)(1))
    • Serve response on the attorney or the party (N.Y. C.P.L.R. 2103)
      • Methods of serving an attorney: personal delivery, mail, leaving at office, leaving at residence, fax, overnight delivery, or electronic delivery (N.Y. C.P.L.R. 2103(b)(1)–(7))
      • Methods of serving a party: personal delivery, mail, leaving at residence, fax, or overnight delivery (N.Y. C.P.L.R. 2103(c))
    Making Document Requests:
    1. Requests for discovery and inspection (N.Y. C.P.L.R. 3120)
    2. Requests contained in a deposition notice (N.Y. C.P.L.R. 3111)
     
    Discovery and Inspection Requests:
    1. Serve request at least 20 days before the specified response date (N.Y. C.P.L.R. 3120(1))
     
    Deposition Notice Requests:
    1. Request documents related to matters covered in the deposition (N.Y. C.P.L.R. 3111)
     
    Determining the Documents to Request:
    1. Assess your client's litigation goals and financial resources
    2. Consider electronic discovery (Tener v. Cremer, 931 N.Y.S.2d 552 (1st Dep't 2011); 22 N.Y.C.R.R. § 202.12(b)(1))
     
    Demand:
    1. Identify the responding party, time for written response and production, place of production, manner of production, and specific items or categories of items to be produced (N.Y. C.P.L.R. 3120(2))
     
    Requests:
    1. Document requests must relate to matters material and necessary in the action's prosecution or defense (N.Y. C.P.L.R. § 3101; Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403, 406 (1968); Polygram Holding, Inc. v. Cafaro, 839 N.Y.S.2d 493, 494 (1st Dep't 2007); Fell v. Presbyterian Hospital, 98 A.D.2d 624 (N.Y. App. Div. 1983))
    2. Describe each document request with reasonable particularity (N.Y. C.P.L.R. 3120(2))
     
    Serving Document Requests:
    1. Serve the request on the responding party, with a copy to all other litigants, any time after your action is commenced and at least 20 days before the specified response date (N.Y. C.P.L.R. 3120(1)–(2))
    2. Serve the request upon an attorney or upon a party (N.Y. C.P.L.R. 2103)
    3. Methods of serving an attorney: personal delivery, mailing, leaving at the office, leaving in the office mailbox, leaving at the attorney's New York residence, faxing, sending by overnight delivery, or electronically delivering (N.Y. C.P.L.R. 2103(b)(1)–(7))
    4. Methods of serving a party: personal delivery, mailing, leaving at the party's New York residence, faxing, or sending by overnight delivery (N.Y. C.P.L.R. 2103(c))
    Interrogatories
    • Responding
    • Propounding
    1. Responding to Interrogatories
     
    2. Duty to Supplement or Amend
    • Promptly supplement or amend a discovery response if incorrect, incomplete, or materially misleading (N.Y. C.P.L.R. § 3101(h))
     
    3. Producing Responsive Documents
     
    4. Redaction
    • Redact privileged information and confidential personal information (22 NYCRR 202.5(e))
     
    5. Limitations
    • Limited to 25 interrogatories, including subparts, unless agreed or ordered otherwise (22 NYCRR 202.20)
     
    6. Interrogatories in the Commercial Division
     
    7. Caption and Title
     
    8. Objections
     
    9. Written Oath
     
    10. Protective Orders
    • Motion for a protective order to prevent annoyance, embarrassment, oppression, undue burden, or expense (N.Y. C.P.L.R. § 3103(a))
     
    11. Serving Interrogatory Responses

    Scope:

    - Interrogatories must relate to matters material and necessary to the action's prosecution or defense (N.Y. C.P.L.R. § 3101).

    - Includes any non-privileged matter that will lead to the discovery of evidence that is admissible at trial and related to the litigation issues (N.Y. C.P.L.R. §§ 3101(a), 3131; Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403, 406 (1968); Polygram Holding, Inc. v. Cafaro, 839 N.Y.S.2d 493, 494 (1st Dep't 2007); Fell v. Presbyterian Hosp., 469 N.Y.S.2d 375, 377–78 (1st Dep't 1983)).

     

    Limitations:

    - A party may not serve interrogatories and a demand for a bill of particulars on the same party, except in matrimonial actions (N.Y. C.P.L.R. § 3130(1)).

    - A party may not serve interrogatories on and depose the same party, without leave of court, in personal injury, injury to property, and wrongful death negligence cases (N.Y. C.P.L.R. § 3130(1)).

    - A party may not serve interrogatories on a nonparty (N.Y. C.P.L.R. § 3130(1)).

    - Each party is limited to serving only 25 interrogatories, including subparts, unless the parties agree or the court orders otherwise (22 NYCRR 202.20).

     

    Oath Requirement:

    - The responding party must answer the interrogatories under oath (N.Y. C.P.L.R. § 3133(b)).

    - The oath must be sworn to by the individual party served or an officer, director, member, agent, or employee of the party served if it is a corporation, partnership, or sole proprietorship (N.Y. C.P.L.R. § 3133(b)).

     

    Interrogatories in the Commercial Division:

    - Limited to identification of witnesses, damages computation, and existence, custodian, location, and general description of material and necessary documents and other physical evidence (22 NYCRR 202.70(g) (Rule 11-a(b))).

    - Additional information may be sought if the parties consent or the court orders it for good cause shown (22 NYCRR 202.70(g) (Rule 11-a(c))).

    - Interrogatories concerning the opposing party's claims and contentions may be served once other discovery is complete and at least 30 days prior to the discovery cutoff date, unless the court orders otherwise (22 NYCRR 202.70(g) (Rule 11-a(d))).

     

    Caption and Title:

    - The caption should include the name of the court, the county venue, the title of the action, the index number, and the judge's name (if one has been assigned) (N.Y. C.P.L.R. § 2101(c); 22 NYCRR 202.5).

    - Interrogatories should also include a title, such as "Plaintiff's First Set of Interrogatories" (N.Y. C.P.L.R. § 2101(c)).

     

    Demand:

    - The first paragraph of the interrogatories must identify the responding party and the time for written response (N.Y. C.P.L.R. § 3130).

     

    Serving Interrogatories:

    - Must be served on the responding party, with a copy to every other litigant (N.Y. C.P.L.R. § 3132).

    - Must be served at least 20 days before the specified response date and any time after the action is commenced (N.Y. C.P.L.R. § 3132).

    - Must be served upon an attorney if the responding party is represented by counsel, or upon the party if unrepresented or if the attorney cannot be served (N.Y. C.P.L.R. § 2103).

     

    Methods of Service:

    - Personal delivery, mailing, leaving at the office or residence, faxing, sending by overnight delivery, or electronic delivery (N.Y. C.P.L.R. § 2103(b)(1)–(7) for attorneys; N.Y. C.P.L.R. § 2103(c) for parties).

    Subpeonas
    • Responding
    • Propounding
    Assessing the Subpoena:

    1. Review the subpoena immediately to assess the request, the person required to provide the information, the due date, and the location of the testimony or production. (New York's Civil Practice Law and Rules (C.P.L.R.))

     
    Response Timing:

    1. Generally, you have 20 days to respond to a subpoena for documents (N.Y. C.P.L.R. § 3120(2)) or prior to appearing as a witness (N.Y. C.P.L.R. § 3106(b)).

     
    Litigation Hold:

    1. Issue a litigation hold to preserve documents relevant to the subpoena (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543 (2015); Douglas Elliman LLC v. Tal, 65 N.Y.S.3d 697 (1st Dep't 2017)).

     
    Complying with a Subpoena for Testimony:

    1. Appear on the appointed day, agree to be sworn in, and testify under oath (N.Y. C.P.L.R. § 2305).

     
    Complying with a Subpoena for Documents:

    1. Produce documents demanded by the subpoena within the time frame provided (N.Y. C.P.L.R. § 3122(c)).

    2. If producing nonparty business records, certify that the documents are correct copies of business records prepared in accordance with N.Y. C.P.L.R. 4518(a) (N.Y. C.P.L.R. § 3122-a).

     
    Producing Electronically Stored Information (ESI):

    1. Follow the guidelines for discovery of ESI from nonparties (22 NYCRR § 202.11, Appendix A; 22 NYCRR § 202.70(g), Appendix A).

    2. Ensure ESI requests are reasonably limited and proportional based on factors such as the issues at stake, amount in controversy, expected importance, availability from other sources, accessibility, and nonparty's expected burden and cost of review and production (22 NYCRR § 202.11, Appendix A; 22 NYCRR § 202.70(g) (Rule 11-c and Appendix A)).

     
    Creating a Privilege Log:

    1. Withhold specific documents containing privileged information and create a privilege log containing the required information (N.Y. C.P.L.R. § 3122(b)).

    2. Meet and confer with your adversary at the outset of the case and periodically thereafter to discuss the scope of the privilege review and other issues pertinent to privilege review (22 NYCRR § 202.20-a; 22 N.Y.C.R.R. § 202.70(g), Rule 11-b).

     
    Complying with an Information Subpoena:

    1. Answer each question separately, fully, in writing, under oath, within seven days of receiving the subpoena, and reference the specific question within the answer (N.Y. C.P.L.R. 5224(a)(3)).

     
    Objections:

    1. Improper service: If the issuing party did not properly serve the subpoena, you can object on this ground (N.Y. C.P.L.R. 2303).

    2. Improper issuance: If the subpoena was improperly issued, you may object (N.Y. C.P.L.R. 2302).

    3. Insufficient witness fees: If the issuing party did not pay the required witness fees, you can object (N.Y. C.P.L.R. 2303).

    4. Material defects: If the subpoena has material defects, such as not providing the requisite time to respond, you may object.

    5. Exceeding C.P.L.R. disclosure limits: If the subpoena seeks disclosure beyond what the C.P.L.R. permits or requires, you can lodge an objection (NY. C.P.L.R. 3101).

    6. Privilege or protection: If the material sought is privileged or subject to protection as work product or trial-preparation material, you can object (NY. C.P.L.R. 3101).

    7. Protective order: If the material sought is protected by a court-imposed protective order, you may object (N.Y. C.P.L.R. § 3103(a)).

    8. Lack of possession, custody, or control: If your client does not have possession, custody, or control of the documents demanded in the subpoena, you can object.

    9. Overly broad or unduly burdensome: If the subpoena is overly broad or unduly burdensome, you may object (Jaffee v. Jaffee, 940 N.Y.S.2d 1 (1st Dep't 2012)).

     
    Moving to Quash, Condition, or Modify a Subpoena:

    1. Determine if the subpoena is returnable to a court, and if not, ask the issuing party to withdraw or modify the subpoena (N.Y. C.P.L.R. § 2304).

    2. File a motion to quash promptly, before the return date or before complying with the subpoena (Santangello v. People, 381 N.Y.S.2d 472 (1976); Gammarano v. Gold, 381 N.Y.S.2d 298 (2d Dep't 1976)).

     
    Moving for a Protective Order:

    1. Move for a protective order if the subpoena is unreasonable (N.Y. C.P.L.R. § 3103).

     
    Appealing an Order with Respect to a Discovery Subpoena:

    1. Appeal to the Appellate Division as of right if the order decided a motion on notice and that decision affects a substantial right (N.Y. C.P.L.R. § 5701(a)(2)(v)).

    2. If the order is not appealable as of right, move for permission to appeal the order (N.Y. C.P.L.R. § 5701(c)).

    Subpoena Types:
    • Subpoena ad testificandum (subpoena for testimony) - requires a person to testify at a proceeding.
    • Subpoena duces tecum (subpoena for documents) - requires the subpoenaed entity to produce books, papers, and other things.
    • Information subpoena - enforces a money judgment obtained through successful litigation, typically a set of written questions that the subpoenaed entity must answer under oath.
     
    Drafting a Subpoena:
    • Write in English or provide a translation
    • Use white paper with black ink
    • Use no less than a 12-point font
    • Print each individual's name below his or her signature
    • (C.P.L.R. § 2101)
     
    Drafting Considerations for Specific Subpoena Types:
    • Subpoena Ad Testificandum - include the name of the witness, the date the witness must appear, the time the witness must appear, and the location where the witness must appear.
    • Subpoena Duces Tecum - include the time frame to produce the requested items (at least 20 days from the day of service), the place to produce the requested items, the manner in which to produce the requested items, the custodian of the requested items, and a list of the requested items with enough detail to allow the custodian to identify them. (C.P.L.R. §§ 2305, 3120)
    • Information Subpoena - include all the parties to the action, the date of judgment, the court where you entered the judgment, the amount of the judgment, the amount the opposing party owes on the judgment, and the statement that "false swearing or failure to comply with the subpoena is punishable as a contempt of court." (C.P.L.R. §§ 5223–5224)
     
    Issuing a Subpoena Without a Court Order:

    The clerk of the court, a judge where there is no clerk, the attorney general, an attorney of record for a party to an action, an administrative proceeding or an arbitration, an arbitrator, a referee, any member of a board, commission, or committee legally authorized to hear, try, or determine a matter, and supervisory personnel within a social services district (child support subpoenas only) can issue a subpoena without a court order. (C.P.L.R. § 2302(a))

     
    Court-Issued Subpoena:

    A court of record must issue subpoenas in cases where the litigant is pro se, requesting original records where a certified copy would suffice, compelling a currently confined prisoner to attend a proceeding, and compelling a patient's medically sensitive records maintained pursuant to certain mental hygiene laws, without the patient's authority. (C.P.L.R. § 2302(a), (b))

     
    Geographic Scope of New York Subpoena Power:

    Subpoenas can be served within the state, but not outside the state through a long-arm provision.

     
    Methods of Service:
    • Personal Service - deliver the subpoena to the subject of the subpoena in person, or leave it in their presence if they resist it, so long as the person served is aware you are serving them. (C.P.L.R. § 308)
    • Delivery to the subject's actual place of business, home, or where they are known to stay and leave it with a person of suitable age and discretion. You also must mail a copy of the subpoena to the subject's last known residence.
    • Affix the subpoena to the door of the subject's actual place of business, home, or where they are known to stay (known colloquially as "nail and mail"). You also must mail a copy of the subpoena to the subject's last known residence.
     
    Other Considerations:
    • Fees: Pay fees for witnesses and copies of documents with the subpoena. (C.P.L.R. § 8001)
    • Service on all parties: Serve any subpoena for documents on all parties appearing in the litigation, not just the party from whom you are requesting the documents.
    • Timing: Serve a witness at least 20 days prior to the requested deposition date, unless the court orders otherwise.
     
    Special Considerations for Specific Subpoena Types:
    • Subpoena Duces Tecum - serve on a nonparty at least 20 days in advance (C.P.L.R. § 3120(2))
    • Trial Subpoena Duces Tecum - serve on all parties simultaneously, not just the party receiving the subpoena (C.P.L.R. § 2305)
    • Subpoena Ad Testificandum - serve all nonparties you wish to examine with a subpoena
    • Subpoena for Trial Attendance - serve on a party or a person within the party's control, serve it on the party's attorney of record (C.P.L.R. §§ 2103(b); 2302-a)
    • Information Subpoena - serve on an institutional party linked to a debtor, such as the debtor's bank, landlord, or employer (C.P.L.R. § 5224)
    Bill of Particulars
    • Drafting
    • Demanding
    Using Bills of Particulars:
    Who May Serve a Demand for a Bill of Particulars:
    Responding to a Demand for a Bill of Particulars:
    Objections
    Caption and Title:
    Particularized Responses and Objections:
    Verification:
    Serving a Bill of Particulars:
    Failure to Properly or Timely Respond to a Demand:
    Protective Orders:
    Amending or Supplementing a Bill of Particulars:
    Purpose of a Bill of Particulars:

    To amplify a pleading and provide more detail on the claims or defenses, limiting proof and preventing unfair surprise at trial (N.Y. C.P.L.R. 3041; Northway Eng'g, Inc. v. Felix Indus., Inc., 77 N.Y.2d 332 (1991); Fremont Inv. & Loan v. Gentiles, 943 N.Y.S.2d 182 (2d Dep't 2012)).

     
    Who May Serve a Demand for a Bill of Particulars:

    A party may serve a demand on any other party who bears the burden of proving a claim or defense (N.Y. C.P.L.R. § 3041; Northway Eng'g, Inc. v. Felix Indus., Inc., 77 N.Y.2d 332 (1991)).

     
    Limitations on Demanding a Bill of Particulars:

    A party may not serve interrogatories and a demand for a bill of particulars on the same party, except in matrimonial actions (N.Y. C.P.L.R. 3130(1)).

     
    Timing for Serving a Demand for a Bill of Particulars:

    Generally, parties do not serve a demand before issue is joined (Vargas v. Villa Josefa Realty Corp., 815 N.Y.S.2d 30 (1st Dep't 2006); Hayes v. Kearney, 655 N.Y.S.2d 170 (3d Dep't 1997)).

     
    Response Time for a Bill of Particulars:

    The pleading party must serve a bill of particulars within 30 days after service of the demand (N.Y. C.P.L.R. 3042(b)).

     
    Failure to Properly or Timely Respond to a Demand:

    If a party improperly objects or fails to respond to a demand for a bill of particulars, the requesting party may move the court for an order compelling compliance or imposing penalties (N.Y. C.P.L.R. 3042(c)–(d)).

     
    Good Faith Effort to Resolve Dispute:

    Before filing a motion to compel or impose sanctions related to a bill of particulars, the requesting party must confer with opposing counsel in a good faith effort to resolve the issues raised by the motion (22 NYCRR § 202.7(a)).

    Motions to Compel
    • Overview
    1. Grounds for making a motion to compel discovery (N.Y. C.P.L.R. 3124):
    • Non-Responsive Party: If a party or nonparty fails to respond to your disclosure requests, such as deposition notices, deposition questions, written demands for discovery and inspection, and written interrogatories, you may move to compel a response. See N.Y. C.P.L.R. 3124.
    • Incomplete or Evasive Answers: If the deponent consistently provides evasive or incomplete answers during a deposition, you may move to compel more detailed and complete responses.
    • Improper Instructions from Defending Counsel: If defending counsel improperly instructs a witness not to answer a proper question during a deposition, you may move to compel the witness to answer. See 22 NYCRR § 221.2.
    • Unprepared Corporate Designee: If a corporate designee deponent is unable to answer questions on a noticed deposition topic, you may move to compel the corporation to designate a more knowledgeable witness.
    • Deficient Interrogatory Responses: If the responding party's interrogatory responses are overdue, deficient, or improperly withhold information or documents, you may move to compel more comprehensive responses. See N.Y. C.P.L.R. 3101.
    • Deficient Document Request Responses: If the responding party's document request response is overdue, deficient, or improperly withholds documents, you may move to compel the production of the requested documents. See N.Y. C.P.L.R. 3101(a); Allen v. Crowell-Collier Publ'g Co., 21 N.Y.2d 403, 406 (1968).
    • Privilege Log Disputes: If the responding party withholds documents based on privilege and provides a privilege log, you may move to compel production of withheld documents if you believe the privilege designations are improper or that otherwise non-privileged materials have been designated as privileged. See N.Y. C.P.L.R. 3122(b); 22 NYCRR § 202.70(g) (Rule 11-b(b)(1)).
    • Failure to Comply with Court Orders: If a party fails to comply with a court order related to disclosure, you may move to compel compliance with that order.
    2. Moving to Compel Interrogatory Responses (N.Y. C.P.L.R. 3101):
    • The responding party must provide all responsive information and related documents that are material and necessary to the action's prosecution or defense.
    • Consider making a motion to compel if the responses are overdue, deficient, or improperly withhold information or documents.
    3. Moving to Compel Document Request Responses (N.Y. C.P.L.R. 3101):
    • The responding party must produce all responsive documents that are material and necessary to the action's prosecution or defense.
    • Consider making a motion to compel if the responses are overdue, deficient, or improperly withhold documents.
    4. Good Faith Effort to Resolve Dispute (22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c)):
    • Before filing a motion to compel, confer with opposing counsel in a good faith effort to resolve the issues raised by the motion.
    • If the dispute cannot be resolved, support the motion with an affidavit or affirmation attesting to the conference details and efforts made to resolve the dispute.
    5. Available Relief (N.Y. C.P.L.R. 3124; N.Y. C.P.L.R. 3126):
    • The court may compel compliance with the disclosure request or a response from the noncompliant party.
    • The court may also impose penalties or sanctions for failure to comply with a disclosure order or willful failure to disclose information.
    6. Opposing the Motion:
    • Focus on arguments such as exceeding the scope of discovery, seeking privileged material, undue burden, or procedural noncompliance.
    • Consider cross-moving for a protective order to prevent annoyance, embarrassment, oppression, undue burden, or expense (N.Y. C.P.L.R. 3103).
    Protective Orders
    • Overview
    Purpose:

    - Prevent abuse of disclosure devices by denying, limiting, conditioning, or regulating their use (N.Y. C.P.L.R. § 3103(a)).

    When to Move for a Protective Order:

    - Any point during litigation (N.Y. C.P.L.R. § 3103(a)).

    Disclosure Stayed:

    - Disclosure request subject to the protective order is suspended until the court rules on the motion (N.Y. C.P.L.R. § 3103(b)).

    Court Intervention:

    - Courts balance the wide scope of disclosure with the burden that a large amount of discovery imposes on parties and nonparties (Kavanagh v. Ogden Allied Maint. Corp., 683 N.Y.S.2d 156 (1998)).

    Examples:

    1. Restricting overbroad requests (Tobar v. New York, 537 N.Y.S.2d 192 (N.Y. App. Div. 2d Dep't 1989)).

    2. Limiting deponent number (Rachko v. N.Y. Med. Grp., P.C., 703 N.Y.S.2d 149 (N.Y. App. Div. 1st Dep't 2000)).

    3. Altering deposition parameters (Feng Wang v. A & W Travel, Inc., 14 N.Y.S.3d 459 (N.Y. App. Div. 2d Dep't 2015)).

    4. Delaying disclosure (In re Estate of Roland, 230 N.Y.S.2d 522 (Sur. Ct. New York County 1962)).

    5. Deciding deposition scope (Cottrell v. Weinstein, 704 N.Y.S.2d 650 (N.Y. App. Div. 2d Dep't 2000)).

    6. Limiting attorney-client privilege (Margerum v. City of Buffalo, 50 N.Y.S.3d 749 (N.Y. App. Div. 4th Dep't)).

    7. Setting disclosure timeframe (Ivy Broad. Co. v. First Nat'l Bank & Tr. Co., 464 N.Y.S.2d 604 (N.Y. App. Div. 3d Dep't 1983)).

    8. Controlling disclosure collection (Serrano v. Lutheran Soc. Servs. of Metro. N.Y., Inc., 996 N.Y.S.2d 91 (N.Y. App. Div. 2d Dep't 2014)).

    9. Protecting confidential documents (Samsung Am. v. Yugoslav-Korean Consulting & Trading Co., 604 N.Y.S.2d 112 (N.Y. App. Div. 1st Dep't 1993)).

    10. Closing depositions (Maria E. v. 599 West Associates, 188 Misc. 2d 119, 726 N.Y.S.2d 237 (N.Y. Sup. Ct. 2001)).

    11. Preventing trade secret disclosure (Wilensky v. JRB Mktg. & Opinion Rsch., Inc., 524 N.Y.S.2d 264 (N.Y. App. Div. 2d Dep't 1988)).

    12. Apportioning disclosure costs (Castagnazzi v. Schlecker, 159 A.D.2d 533, 552 N.Y.S.2d 398 (N.Y. App. Div. 1990)).

    13. Dictating disclosure manner (Serrano v. Lutheran Soc. Servs. of Metro. N.Y., Inc., 996 N.Y.S.2d 91 (N.Y. App. Div. 2d Dep't 2014)).

    14. Limiting disclosure devices (Button v. Guererri, 748 N.Y.S.2d 102 (N.Y. App. Div. 4th Dep't 2002)).

    Improper or Irregular Disclosure:

    - Court can suppress disclosure that results in prejudice to a substantial right (N.Y. C.P.L.R. § 3103(c)).

    Notice of Motion Requirements:

    - Return date, adversary's deadline for filing opposition or cross-motion, supporting papers, request for oral argument, relief requested and grounds for request, primary and alternative grounds underlying request for relief (N.Y. C.P.L.R. § 2214(a)).

    Order to Show Cause:

    - Alternative to moving on notice, used when there is genuine urgency, a stay is required, or a statute or rule requires an order to show cause (N.Y. C.P.L.R. § 2214(d); 22 NYCRR 202.8-d).

    Trade Secrets and Protective Orders:

    - Protective order may be available if disclosure request seeks trade secrets (Ashland Mgmt. v. Janien, 604 N.Y.S.2d 912, 913 (1993); Restatement of Torts § 757, cmt. b).

    Appellate Review of Decisions on Protective Orders:

    - Appeal to the appellate division (N.Y. C.P.L.R. § 5501(c)); review only for abuse of discretion (In re Beach v. Shanley, 476 N.Y.S.2d 765 (1984)).

    North Carolina Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    • Subpoenas
    Requests for Admission
    • Responding
    • Propounding
    Applicable Rules
     
    Preparing to Respond
    • Determine if any admissions are harmful to your case.
    • Rule 36 permits five types of responses: objection, admission, denial, admission in part and qualification or denial in part, or inability to admit or deny after reasonable inquiry (N.C. R. Civ. P. 36(a)).
    • Evasive, ambiguous, or unintelligible responses may be deemed admissions (Southern Ry. v. Crosby, 201 F.2d 878 (4th Cir. 1953)).
     
    Objections
    1. Facts in substantial dispute
      • Object to requests that require admitting or denying facts that are in substantial dispute, as RFAs should only request admissions for facts and documentation that are not in substantial dispute (N.C. R. Civ. P. 36, Comment).
    2. Legal conclusions or opinions
    3. Privileged, confidential, or protected information
      • Object to requests that require admitting or denying matters disclosing trade secrets, attorney-client privileged information, work product, or other protected information (N.C. R. Civ. P. 26(b)).
    4. Relevance
      • Object to requests that are not relevant to the subject matter of the pending action or are not reasonably calculated to lead to the discovery of admissible evidence (N.C. R. Civ. P. 26(b)).
    5. Overly broad or unduly burdensome
      • Object to requests that are overly broad, unduly burdensome, or oppressive in scope (N.C. R. Civ. P. 26(b)).
      • The court may limit the scope of discovery if it determines that the burden or expense of the proposed discovery outweighs its likely benefit (N.C. R. Civ. P. 26(b)(1)).
    6. Ambiguity or vagueness
    7. Requests seeking information already provided
      • Object to requests that seek information that has already been provided or is readily available to the requesting party (N.C. R. Civ. P. 26(b)).

    Remember that objections should be lodged within the time allowed under Rule 36(a) (N.C. R. Civ. P. 36(a)). Any matter of inquiry that is not permissible under N.C. R. Civ. P. 26(b) is subject to objection.

     
    Effect of Admissions
     
    Sanctions for Improper Responses
     
    Service
    1. Effect of Admissions
    2. Applicable Rules
    • Rule 36(a) permits written requests for admission within the scope of Rule 26(b) (N.C. R. Civ. P. 36(a)).
    • Requests may relate to statements or opinions of fact or the application of law to fact (N.C. R. Civ. P. 36(a), Comment).
    • Requests to admit purely legal issues unrelated to the facts of the case are not authorized (N.C. R. Civ. P. 36, Comment).
    • Requests may be served without leave of court on plaintiff after the action is filed, and on any other party along with service of the summons and complaint or at any time thereafter (Rule 36(a)).
    • Requests to admit the genuineness of documents must be described, attached, or made available for inspection and copying (N.C. R. Civ. P. 36(a)).
    3. Formatting
    • Each matter for which an admission is requested must be separately stated and followed by sufficient space for a response (N.C. R. Civ. P. 36(a)).
    • Request must be signed by the propounding party or attorney (N.C. R. Civ. P. 30(g)).
    • Verification by the party is not required.
    4. Filing and Service
    • Rule 5(a) requires that a request or response under this rule be served on all other parties unless the court orders otherwise.
    5. Challenging Inadequate Responses
    • Rule 36 has a built-in, express section on sanctions which a party serving the request can seek if dissatisfied with the responses (N.C. R. Civ. P. 36(a)).
    • Challenges to responses must be made by motion (N.C. R. Civ. P. 36(a)).
    Requests for Production
    • Responding
    • Propounding
    Preserving Evidence

    - Preserve all relevant documents, including electronically stored information (ESI), once a lawsuit is anticipated (N.C. R. Civ. P. 34(a)).

    Conferring with Your Client

    - Discuss the scope and nature of the document requests with your client to ensure a thorough and accurate response.

    Timing for Response

    - A party served with a request must serve a written response within 30 days, except that a defendant has 45 days to respond after service of the summons and complaint (N.C. R. Civ. P. 34(b)).

    - The court may shorten or enlarge the time for a response.

    Scope of Document Requests

    - Broad discovery of any information reasonably calculated to lead to the discovery of admissible evidence, subject to the exception for materials prepared in anticipation of litigation or for trial (N.C. R. Civ. P. 26(b)(3)).

    - Requests for irrelevant documents may be objectionable as not reasonably calculated to lead to the discovery of admissible evidence (Hudson v. Hudson, 34 N.C. App. 144 (1977)).

    Drafting the Response

    - Include a caption and title, general responses and objections, specific responses and objections, and a signature block (N.C. R. Civ. P. 26(g)).

    - Serve a copy of the response on the propounder and all other parties (N.C. R. Civ. P. 5(a), 5(d)).

    Grounds for Refusing to Produce Requested Documents

    - The document is not relevant to any party's claim or defense (N.C. R. Civ. P. 26(b)).

    - The request is unduly burdensome (N.C. R. Civ. P. 26(c)).

    Objections

    1. The document does not exist.

    o There are three possible explanations for the non-existence of a document: never created, lost, or destroyed (describe efforts made to find the document or your client's record retention policy).

    2. The document is not in the possession, custody, or control of your client.

    o A party who does not have possession, custody, or control of the tangible things sought in the request for production may object to the request on that basis (Pugh v. Pugh, 113 N.C. App. 375 (1994)).

    o Documents in the possession of a party's attorney are within the party's control and custody under this rule (Pugh v. Pugh, 113 N.C. App. 375 (1994)).

    3. The request is beyond the scope of discovery as stated in the North Carolina Rules.

    o Explain why the material requested is not reasonably calculated to lead to the discovery of admissible evidence (N.C. R. Civ. P. 26(b)).

    o The scope of discovery is limited to matters relevant to any party's claim or defense (N.C. R. Civ. P. 26(b)).

    4. The request is vague and not described with "reasonable particularity."

    o Explain why you cannot respond with the description provided in the request (N.C. R. Civ. P. 34(b)).

    5. The request is unduly burdensome.

    o Note that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost (N.C. R. Civ. P. 26(c)).

    o On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost (N.C. R. Civ. P. 26(c)).

    6. The requested material is privileged.

    o When information subject to discovery is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the requesting party to contest the claim (N.C. R. Civ. P. 26(b)(5)(a)).

    o When you object to a request on the basis of attorney-client privilege or the work product doctrine, N.C. R. Civ. P. 26(b)(5)(a) requires that you provide a privilege log to the requesting party.

    Organizing Documents to Be Produced

    - If the RFP does not specify the form or forms for ESI to be produced, the responding party must state the form or forms it intends to use (N.C. R. Civ. P. 34(b)).

    Electronic Discovery: Governed by N.C. R. Civ. P. 34(b) and N.C. R. Civ. P. 26(b)

    Bank of Am. Corp. v. SR Int'l Bus. Ins. Co., 2006 NCBC 15; Analog Devices, Inc. v. Michalski, 2006 NCBC 14

    Applicable Rules: Rule 34 regulates document requests in civil actions and proceedings

    N.C. Gen. Stat. § 97-80(a)

    Signature Requirement: Rule 26(g) requires a document request to be signed by an attorney of record or the party if not represented by counsel
    Deadline to Respond: Rule 34(b) mandates a written response within 30 days, or 45 days for a defendant after service of the summons and complaint
    Inspection of Real Property: Rule 34(a) allows requests for entry onto real or other property in the responding party's possession or control

    Henszey v. Langdon-Henszey Coal Mining Co., 80 F. 178

    Timing: Rule 34(b) permits service of a request on plaintiff at any time after the action is filed; any other party may be served with a request along with the summons and complaint, or at any time thereafter

    N.C. R. Civ. P. 34, Comment

    Form of Production: Rule 34(a) requires materials to be "designated" and Rule 34(b) permits designation by individual item or category, described with reasonable particularity

    Willis v. Duke Power Co., 291 N.C. 19

    Drafting Document Requests: Include a caption and title, a demand, definitions, instructions, and requests

    N.C. R. Civ. P. 34(b)

    Instructions: RFP instructions can be used to define the scope of requests and specify the form(s) for ESI production

    N.C. R. Civ. P. 34(b)

    Scope of Discovery: Rule 34(a) requires production or inspection to fall within the scope of Rule 26(b)

    Willis v. Duke Power Co., 291 N.C. 19

    Service Requirements: Rule 34(b) permits service of a request without leave of court

    N.C. R. Civ. P. 34, Comment; original request should be retained by the propounding party and a copy served on respondent N.C. R. Civ. P. 5(d)

    Improper Responses: Common objections include qualified work product immunity and attorney-client privilege

    Willis v. Duke Power Co., 291 N.C. 19; Isom v. Bank of Am., N.A., 177 N.C. App. 406

    Compelling Production: Rule 37(d) provides for sanctions for no written objection or response

    Willis v. Duke Power Co., 291 N.C. 19; Rule 37(a) allows for a motion to compel if a response is provided Willis v. Duke Power Co., 291 N.C. 19

    Protective Orders: Responding party may move for a protective order under Rule 26(c) if the request is burdensome or otherwise improper

    Williams v. State Farm Mut. Auto. Ins. Co., 67 N.C. App. 271; Hudson v. Hudson, 34 N.C. App. 144

    Interrogatories
    • Responding
    • Propounding
    Applicable Rules:
     
    Subparts:
    • Limited to 50 interrogatories, including sets and subparts, except with leave of court or agreement of the answering party. N.C. R. Civ. P. 33(a)
     
    Timing:
    • Serve answers and objections within 30 days after the interrogatories have been served, except for defendants who may serve within 45 days after being served with the summons and complaint. N.C. R. Civ. P. 33(a)
     
    Number of Interrogatories Allowed:
    • Limited to 50 interrogatories, including sets and subparts, except with leave of court or agreement of the answering party. N.C. R. Civ. P. 33(a)
     
    Where Answer May Be Ascertained from Business Records:
     
    Signing Requirement:
     
    Scope of Interrogatories:
     
    Objections:
    1. Not reasonably calculated to lead to the discovery of admissible evidence or is overly broad
    2. Information sought is privileged
    3. Interrogatory cannot be answered because it is vague, ambiguous, or unintelligible
    4. Unduly burdensome or expensive to furnish
    5. Interrogatory exceeds the numerical limit
      • A party may object to an entire set of interrogatories if the total number of interrogatories propounded by the opposing party exceeds 50.
      • Citation: N.C. R. Civ. P. 33(a)
    6. Calls for an opinion based upon hypothetical facts (in the context of expert interrogatories)
      • An objection may be raised if an interrogatory calls for an expert opinion based upon hypothetical facts, as this is considered improper.
      • Citation: N.C. R. Civ. P. 26(b)(4)
    7. Seeks information concerning the existence and contents of liability insurance coverage
      • Interrogatories requesting information concerning the existence and contents of liability insurance coverage are proper under Rule 26(b)(2).
      • Citation: Marks v. Thompson, 282 N.C. 174 (1972)
     
    Service Requirements:
    • Answers to interrogatories must be served within 30 days of the service of the interrogatories, unless the court orders otherwise. N.C. R. Civ. P. 33(a)
    • Defendants may serve answers or objections within 45 days after service of the summons and complaint. N.C. R. Civ. P. 33(a)
    Applicable Rules:
    Who May Serve Interrogatories:

    Any party may serve written interrogatories upon any other party without leave of court (N.C. R. Civ. P. 33(a); Holcomb v. Hemric, 56 N.C. App. 688 (1982)).

    Timing for Response:

    Answers to interrogatories must be served within 30 days of the service of the interrogatories, or within 45 days after service of the summons and complaint upon a defendant (N.C. R. Civ. P. 33(a)).

    Number of Interrogatories Allowed:

    Limited to 50, including sets and subparts, unless granted leave of court or agreed upon by the answering party (N.C. R. Civ. P. 33(a)).

    Scope of Interrogatories:

    Limited to matters inquired under N.C. R. Civ. P. 26(b), including all relevant facts and mixed questions of law and fact (N.C. R. Civ. P. 33(b); Harris v. Parker, 17 N.C. App. 606 (1973)).

    Information to Request in Interrogatories:
    Drafting and Serving Interrogatories:
    • Format: Leave sufficient space after each interrogatory for the answering party to record their response (N.C. R. Civ. P. 33(a))
    • Signature: Interrogatories must be signed by a party or their attorney (N.C. R. Civ. P. 26(g))
    • Service: Serve written interrogatories upon any other party after the commencement of the action (N.C. R. Civ. P. 33(a))
    Subpeonas
    • Responding
    1. Response Deadline:
    • Comply with the subpoena by the date indicated in the subpoena (N.C. R. Civ. P. 45(a)(1))
    • If interposing objections or moving against the subpoena, do so before the date of compliance or within 10 days of being served, whichever is earlier (N.C. R. Civ. P. 45(c)(3))
     
    2. Complying with the Subpoena:
    • Depositions: Ensure client appears at the requested time and location, understands the format, and is prepared to testify (N.C. R. Civ. P. 45(a)(1))
    • Document requests: Produce documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the demand (N.C. R. Civ. P. 45(d)(1))
     
    3. Electronically Stored Information (ESI):
    • Produce ESI in a form or forms in which it is ordinarily maintained or any other reasonably usable form (N.C. R. Civ. P. 45(d)(2))
     
    4. Objections:
     
    5. Motion Practice:
    • Move to modify or quash the subpoena before the time of compliance or within 10 days of service, whichever is earlier (N.C. R. Civ. P. 45(c)(5))
    • Move for a protective order in the court where the action is pending (N.C. R. Civ. P. 26(c))
     
    6. Court Considerations:
    • When determining whether to modify or quash a subpoena, the court should consider relevancy, materiality, the right of the subpoenaed party to withhold production, and the policy against fishing expeditions (Transatlantic Healthcare, LLC v. Alpha Constr. of the Triad, Inc., 2017 NCBC 21)
    • When determining whether there is undue burden or expense, the court must weigh any burden or expense against the benefit of the discovery sought, considering the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation (N.C. R. Civ. P. 26(b)(1a))

    Ohio Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    • Subpoenas
    Requests for Admission
    • Responding
    • Propounding
    1. Applicable Rules
    • Respond within the time designated in the request, no less than 28 days after service (31 days if served by mail) unless a shorter time is permitted by the court (Ohio Civ. R. 36(A)).
    • If the request does not specify a time for response, there is no duty to do so and the request will not be deemed admitted, provided the party served objects to the form (French v. Dwiggins, 9 Ohio St. 3d 32 (1984)).
    2. Failure to Respond Can Lose the Case
    3. Summary Judgment Ramifications
    4. Preparing to Respond
    • Mark the response date on your calendar or docket control program.
    • Review all requests before responding to any one of them.
    • Review all discovery information generated in the case and create an issue-fact outline.
    5. Objections

    a. Irrelevant or not reasonably calculated to lead to the discovery of admissible evidence: Object to requests that seek information unrelated to the claims or defenses in the case (Ohio Civ. R. 26(B)(1)).

    b. Overly broad or unduly burdensome: Object to requests that are excessively wide in scope or impose an unreasonable burden on the responding party (Ohio Civ. R. 26(C); see also Holman v. Keegan, 139 Ohio App. 3d 911 (2000)).

    c. Vague or ambiguous: Object to requests that are unclear or open to multiple interpretations (Ohio Civ. R. 36(A); see also St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio App. 2d 261 (1975)).

    d. Calls for a legal conclusion: Object to requests that ask the responding party to provide a legal opinion or conclusion, as these are matters for the court to decide (Ohio Civ. R. 36(A); see also Salem Med. Arts & Dev. Corp. v. Columbiana County, 82 Ohio St. 3d 193 (1998)).

    e. Requests information protected by privilege: Object to requests that seek information protected by attorney-client privilege, work product doctrine, or other recognized privileges (Ohio Civ. R. 26(B)(3); see also State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St. 3d 261 (2005)).

    f. Requests information already provided: Object to requests that seek information that has already been provided in previous discovery responses or documents (Ohio Civ. R. 26(B)(1)).

    6. Consequences of Different Responses
    7. Changing or Amending Responses
    8. Moving Party’s Burden
    9. Non-moving Party Must Show Prejudice
    Applicable Rules:

    - RFAs may be served on a plaintiff any time after the commencement of the action, and upon any other party after service of the summons and complaint (Ohio Civ. R. 36).
    - Any subject matter within the scope of Ohio Civ. R. 26 may be the subject matter of a request for admission.
    - The Ohio rules governing discovery are found in Ohio Civ. R. 26–37 and 45.

     
    Purpose of Rule 36:

    - Save time and money by providing a mechanism that resolves potentially disputed issues prior to trial (St. Paul Fire & Marine Ins. Co. v. Battle, 44 Ohio App. 2d 261 (8th Dist. 1975)).

     
    Scope of Rule 36:

    - Any matter within the scope of Rule 26 may be the subject matter of a request for admission (Cleveland Tr. Co. v. Willis, 20 Ohio St. 3d 66 (1985)).

     
    Directed at Parties:

    - Rule 36 is a party rule, and you may not serve requests for admission on a non-party.

     
    Electronic Copies Requirement:

    - Ohio Civ. R. 36(A) requires that a party serve electronic copies of requests for admissions as provided in Civ. R. 5(B).

     
    Deadline for Responses:

    - A party must serve a written answer or objection within 28 days after service of the request, unless another period of time is set by the court (Ohio Civ. R. 36(A)).

     
    Multiple Sets of Requests for Admission:

    - Frequency of use is not limited (Ohio Civ. R. 26(A)).

     
    Challenging Inadequate Responses:

    - Rule 36 has a built-in, express section on sanctions which a party serving the request can seek if dissatisfied with the responses.

     
    Motion Practice:

    - Challenges to responses must be made by motion, as described in the third paragraph of Ohio Civ. R. 36(A).
    - The court can order that an amended answer be served or order that the matter is admitted.

    Requests for Production
    • Responding
    • Propounding
    Preserving Evidence
    • Preserve all relevant documents and information upon receiving a document request.
    Timing
    Drafting
    • State reasons for any objection (Ohio Civ. R. 34).
    • Produce documents as they are kept in the usual course of business or organized and labeled to correspond with categories in the request (Ohio Civ. R. 34).
    Objections:
    Withholding Privileged Documents
    Protective Orders
    • Seek a protective order to prevent annoyance, embarrassment, oppression, undue burden, expense, or disclosure of privileged information (Ohio Civ. R. 26(C)).
    Supplementing Responses
    Scope:

    Broad scope, based on liberal discovery philosophy (Staff Notes, Ohio Civ. R. 26)
    Relevant to any party’s claim or defense and proportional to the needs of the case (Ohio Civ. R. 26(B)(1))
    No numerical limit on requests, but the court may order limitations (Ohio R. Civ. P. 26(B)(6))

    Types of Requests under Ohio Civ. R. 34:
    • Inspect and copy documents or electronically stored information
    • Inspect and copy, test or sample tangible things
    • Enter upon designated land or property for inspection, measuring, surveying, photographing, testing, or sampling
    Compliance:

    Must be within the party's possession, custody, or control (Searock v. Stripling, 736 F.2d 650 (11th Cir. 1984))

    Form and Substance of Request:

    Set forth items to be produced or inspected individually or by category, described with reasonable particularity (Ohio Civ. R. 34)
    Specify a reasonable time, place, and manner for the inspection or production

    Demand:

    Specify a time of at least 31 days for production (28 days per Ohio Civ. R. 34, plus 3 days if served by mail as per Ohio Civ. R. 6(D))
    Discuss timing and mechanics with opposing counsel after serving the request

    Serving Document Requests:

    Serve on any other party within 28 days of the request (Ohio Civ. R. 34(B)(1))
    Parties may agree to a different time frame or the court may order a different time frame (Ohio Civ. R. 29 and Ohio Civ. R. 34(B)(1))
    Serve an electronic copy of the document requests on a shareable medium and in an editable format by electronic mail, or by other means agreed to by the parties (Ohio Civ. R. 34(B))

    Extensions:

    Request extensions under Ohio Civ. R. 6(B) if necessary

    Interrogatories
    • Responding
    • Propounding
    Applicable Rules

    Ohio Civ. R. 26-37 and 45, which are based on the liberal discovery philosophy of the Federal Rules of Civil Procedure (Staff Notes, Ohio Civ. R. 26).

     
    Limitations

    Interrogatories can only be served on parties, not non-parties (Ohio Civ. R. 33).

     
    Number of Interrogatories

    Limited to 40, unless permission is granted by the Court (Ohio Civ. R. 33(A)).

     
    Electronic Copies

    Must be served in an editable format on a shareable medium, by email, or other means agreed upon by the parties (Ohio Civ. R. 33(A)).

     
    Subject Matter

    Anything discoverable under Ohio Civ. R. 26(B), including opinions, contentions, and legal conclusions of a party (Ohio Civ. R. 33(B)).

     
    Responding

    Must be in writing, separately and fully answer each interrogatory, state any objections with reasonable particularity, and follow the question to which it responds (Ohio Civ. R. 33(A)).

     
    Using Business Records

    Rule 33(C) allows for specifying records from which the answer may be derived and affording the adverse party a reasonable opportunity to examine them (Ohio Civ. R. 33(C)).

     
    Individual Parties

    Must answer interrogatories themselves, not through an attorney (Inzano v. Johnston, 33 Ohio App. 3d 62 (1986)).

     
    Corporations

    May choose a proper employee, officer, or agent to answer interrogatories (Hensley v. Fairview Park Hospital, 26 Ohio Misc. 128, 130 (Ohio C.P. 1970)).

     
    Objections
    1. Seek disclosure beyond what the Ohio Rules permit or require: Interrogatories that request information beyond the scope of discovery allowed by the Ohio Rules can be objected to (Ohio Civ. R. 26(B)).
    2. Not seeking discoverable information: If the interrogatories are not seeking information relevant to any party's claim or defense and proportional to the needs of the case, an objection can be made (Ohio Civ. R. 26(B)(1)).
    3. Beyond the litigation's scope: Objections can be raised if the interrogatories seek information that is not relevant or material to the issues in the litigation (Ohio Civ. R. 26(B)(1)).
    4. Seek information or documents protected by attorney-client privilege or work product doctrine: Rule 26(B) excludes privileged matters from discovery, and objections can be made on the grounds of attorney-client privilege or work product protection (Ohio Civ. R. 26(B); Henneman v. Toledo, 35 Ohio St. 3d 241 (1988)).
    5. Seek information or documents protected by a court-imposed protective order: If the interrogatories request information or documents that are subject to a protective order, an objection can be lodged (Ohio Civ. R. 26(C)).
    6. Seek information or documents outside your client's possession, custody, or control: An objection can be made if the interrogatories request information or documents that are not within the responding party's possession, custody, or control.
    7. Seek publicly available information or documents: If the interrogatories request information or documents that are publicly available, an objection can be raised.
     
    Protective Orders

    Can be sought to prevent annoyance, embarrassment, oppression, undue burden, or expense (Ohio Civ. R. 26(C)).

     
    Serving

    Must serve a copy of the answers and objections within 28 days after the service of the interrogatories or within a shorter or longer time as the court may allow (Ohio Civ. R. 33(A)(3)).

     
    Supplementing

    Rule 26(E) imposes a limited duty to supplement interrogatories and other discovery responses under certain circumstances (Ohio Civ. R. 26(E)).

    Scope of Discovery:

    Relevant to any party's claim or defense and proportional to the needs of the case (Ohio Civ. R. 26(B)(1))
    Relevance in discovery is broader than admissibility at trial (Rossman v. Rossman, 47 Ohio App. 2d 103, 1 Ohio Op. 3d 206, 352 N.E.2d 149 (1975))

    Limitations:

    Interrogatories can only be served on parties (Ohio Civ. R. 33)
    Service of interrogatories is permitted on parties other than the plaintiff only after service of the summons and complaint upon that party (Ohio Civ. R. 33(A)(2))

    Number of Interrogatories Permitted:

    Limited to 40 interrogatories (Ohio Civ. R. 33(A))
    Subparts of an interrogatory count as separate interrogatories
    To serve more than 40 interrogatories, a motion must be filed and permission from the Court must be obtained (Ohio Civ. R. 33(A))

    Electronic Copies:

    Must serve an electronic copy of interrogatories (Ohio Civ. R. 5(B))
    If unable to provide an electronic copy, seek leave of court to serve a printed copy (Ohio Civ. R. 33(A))

    Subject Matter:

    Broad subject matter, anything discoverable under Ohio Civ. R. 26(B) (Ohio Civ. R. 33(B))
    Interrogatories may inquire into a party's opinions, contentions, and legal conclusions (Ohio Civ. R. 33(B))

    Concise Language:

    Be specific and avoid vague and broad questions (Penn Cent. Transp. Co. v. Armco Steel Corp., 27 Ohio Misc. 76, 56 Ohio Op. 2d 295, 271 N.E.2d 877 (C.P. 1971))

    Serving Interrogatories:

    Serve without leave of court upon the plaintiff after commencement of the action and upon any other party after service of the summons and complaint upon that party (Ohio Civ. R. 33(A)(2))
    Serve an electronic copy on a shareable medium and in an editable format, by electronic mail, or by other means agreed to by the parties (Ohio Civ. R. 33(A))
    If unable to provide an electronic copy, seek leave of court to serve a printed copy (Ohio Civ. R. 33(A))
    Interrogatories are usually not filed with the court unless used in the proceeding or the court orders filing (Ohio Civ. R. 5(D))
    Cannot specify a response period shorter than 28 days after service (Ohio Civ. R. 33(A)(2))
    If served by mail, add three days to the response time (Ohio Civ. R. 6(D))

    Subpeonas
    • Responding
    • Propounding
    1. Options (Ohio Civ. R. 45):
    1. Comply with the subpoena
    2. Object to the subpoena
    3. Contact the issuing party to address disputes
    4. Move to quash or modify the subpoena
    5. Move for a protective order
     
    2. Consequences of failing to respond to a subpoena:
    1. Contempt of court (Ohio Civ. R. 45(E))
    2. Sanctions, including costs and attorney's fees (Heinrichs v. 356 Registry, Inc., 2016-Ohio-4646)
     
    3. Types of subpoenas:
    1. Subpoena ad testificandum (subpoena for testimony)
    2. Subpoena duces tecum (subpoena for documents)
    3. Information subpoena (enforces a money judgment)
     
    4. Objections:
    1. Improper service or lack of required costs
    2. Insufficient time to comply
    3. Disclosure of privileged or protected information
    4. Violation of geographical requirements
    5. Request for production of inaccessible electronically stored information
    6. Respondent not in control or possession of requested documents
    7. Undue burden or expense
     
    5. Duty to preserve evidence upon receiving a subpoena duces tecum (McGlumphy v. Cnty. Fire Prot., Inc., 2016-Ohio-8114)
     
    6. Complying:
    1. Testimony at a deposition, hearing, or trial
    2. Production of documents, tangible things, or electronically stored information
    3. Inspection of premises
     
    7. Grounds for resisting compliance with a subpoena:
    1. Improper service or lack of required costs (Ohio Civ. R. 45(B))
    2. Insufficient time to comply (Ohio Civ. R. 45(C)(3)(a))
    3. Disclosure of privileged or protected information (Ohio Civ. R. 45(C)(3)(b))
    4. Disclosure of an expert's opinion secured in preparation of trial (Ohio Civ. R. 45(C)(3)(c))
    5. Violation of geographical requirements (Ohio Civ. R. 45(A)(1)(b)(ii))
    6. Request for production of inaccessible electronically stored information (Ohio Civ. R. 45(D)(3))
    7. Respondent not in control or possession of requested documents (Ohio Civ. R. 45(A)(1)(b)(iv))
    8. Undue burden or expense (Ohio Civ. R. 45(C)(3)(d), (C)(5))
     
    8. Methods of resisting a subpoena:
    1. Object to responding (Ohio Civ. R. 45(C)(2)(b))
    2. Move to quash or modify the subpoena (Ohio Civ. R. 45(C)(3))
    3. Move for a protective order (Ohio Civ. R. 26(C))
    1. Types of Subpoenas:
    • Subpoena ad testificandum (subpoena for testimony): Requires a person to testify at a proceeding (Ohio Civ. R. 45(A)(1)(b)(i)).
    • Subpoena duces tecum (subpoena for documents): Requires the subpoenaed entity to produce books, papers, and other things (Ohio Civ. R. 45(A)(1)(b)(ii)).
    • Information subpoena: Enforces a money judgment obtained through successful litigation, typically a set of written questions (similar to interrogatories) that the subpoenaed entity must answer under oath (Ohio Civ. R. 69).
    2. Subpoena Requirements:
    • Must state the name of the court, title of the action, case number, and time and place where the subject must appear (Ohio Civ. R. 45(A)(1)(a)-(b)).
    • Must include the signature of the clerk of courts or the issuing attorney (Ohio Civ. R. 45(A)(2)).
    3. Serving a Subpoena:
    • Can be served by a sheriff, bailiff, coroner, clerk of court, constable, deputy, attorney, or any other person designated by order of court who is not a party and is not less than 18 years of age (Ohio Civ. R. 45(B)).
    • Service is made by delivering a copy of the subpoena to the person, reading it to them in person, leaving it at their usual place of residence, or placing a sealed envelope containing the subpoena in the U.S. mail as certified or express mail return receipt requested (Ohio Civ. R. 45(B)).
    4. Response Deadline:
    • Courts may quash or modify subpoenas if they fail to allow a "reasonable time" to comply (Ohio Civ. R. 45(C)(3)).
    • A witness commanded to produce documents or things or to permit inspection of property may object to production or inspection within 14 days after it is served or before the time it specifies for compliance if that time is less than 14 days after service (Ohio Civ. R. 45(C)(2)(b)).
    5. Enforcing a Subpoena:
    • If the subject of the subpoena does not comply, file a motion asking the court to hold the subject in contempt (Ohio Civ. R. 45(E)).
    • If the subject objects to the subpoena, file a motion for an order compelling a response (Ohio Civ. R. 45(C)(2)(b) for documents; Ohio Civ. R. 37(A)(3)(a) for deposition testimony/interrogatories).
    • If the subject files a motion to quash or for a protective order, oppose the motion and defeat whatever arguments the subject advances.
    6. Appealing Subpoena-Related Rulings:

    Oklahoma Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    Requests for Admission
    • Overview
    Overview:

    - RFAs are used to obtain admission of facts, opinions on matters of fact, the application of law to fact, and the genuineness of documents (Okla. Stat. tit. 12, § 3236(A)).
    - The responding party must admit, deny, object, or assert lack of knowledge after making a reasonable inquiry (Okla. Stat. tit. 12, § 3236(A); § 3226(G)).
    - Matters admitted are deemed conclusively established unless the court permits amendment or withdrawal (Okla. Stat. tit. 12, § 3236(B)).
    - Admissions are effective only for the pending action and are not binding in any other proceeding (Okla. Stat. tit. 12, § 3236(C)).

    Proper Subjects of RFAs:

    - RFAs may concern any nonprivileged matter relevant to the claims or defenses of any party (Okla. Stat. tit. 12, §§ 3226(B)(1), 3236(A)).
    - Legal and factual contentions may be requested (Okla. Stat. tit. 12, § 3236(A)).
    - Requests regarding the genuineness of documents must include a copy of the document, unless it has already been provided (Okla. Stat. tit. 12, § 3236(A)).

    Timing of Requests:

    - RFAs may be served without leave of court after the petition is filed (Okla. Stat. tit. 12, § 3236(A)).
    - The 30-day response period does not commence until an answer to the petition is filed (Okla. Stat. tit. 12, § 3236(A)).
    - Consider any discovery cutoff dates established by the court (Okla. Stat. tit. 12, § 3226(F); Okla. Stat. tit. 12, ch. 2 app., rule 5(C)).

    Limit on Number of Requests:

    - Generally, no more than 30 RFAs may be served, unless otherwise stipulated or authorized by the court (Okla. Stat. tit. 12, § 3236(A)).

    Preparing RFAs:

    - Each matter for which an admission is requested must be set forth separately (Okla. Stat. tit. 12, § 3236(A)).
    - Draft requests to be clear and concise, focusing on a single fact or issue (Okla. Stat. tit. 12, § 3236(A)).
    - Include a preamble when propounding RFAs to a pro se litigant (Okla. Stat. tit. 12, § 3236(A)).
    - Serve a copy of the document if the request pertains to its genuineness (Okla. Stat. tit. 12, § 3236(A)).
    - RFAs must be signed by the attorney for the propounding party or by the party if not represented by counsel (Okla. Stat. tit. 12, § 3226(G)).

    Serving and Filing RFAs:

    - Serve RFAs on the party from whom the admission is requested and their attorney if represented (Okla. Stat. tit. 12, §§ 2005(A), 3236(A)).
    - Obtain proof of service of the RFAs (Okla. Stat. tit. 12, § 3236(A)).
    - Serve copies of the RFAs on counsel for all other parties that have appeared in the case (Okla. Stat. tit. 12, § 2005(A), (B)).

    Responding:

    - Respond within 30 days after service of the request, or within a shorter or longer time as the court may allow (Okla. Stat. tit. 12, § 3236(A)).
    - Admit, deny, explain in detail the reasons for not admitting or denying, or object to the request (Okla. Stat. tit. 12, § 3236(A)).
    - Denials or refusals to admit or deny must fairly meet the substance of the request (Okla. Stat. tit. 12, § 3236(A)).
    - Objections must state the reasons for the objection (Okla. Stat. tit. 12, § 3236(A)).
    - Sign, serve, and file the response (Okla. Stat. tit. 12, §§ 3226(G), 3236(A)).

    Objections:
    1. Improper format of request:

      • An objection may be based on the request's noncompliance with format requirements, such as the requirement that each matter on which an admission is requested be set forth separately (Okla. Stat. tit. 12, § 3226(A)).
      • A request that is set forth as a compound or complex statement may be objectionable.

    2. Excessive number of requests:

      • A responding party may object to a set of RFAs if the total number of RFAs served (when added to any previous RFAs served by the propounding party) exceeds 30, unless otherwise stipulated by the parties or permitted by the court (Okla. Stat. tit. 12, § 3226(A)).

    3. Untimely request:

      • An objection may be based on the propounding party's service of the requests in violation of the applicable time constraints, such as discovery cutoff dates established by a discovery or scheduling order in the case (Okla. Stat. tit. 12, § 3226(F); Okla. Stat. tit. 12, ch. 2 app., rule 5(C)).

    4. Undue burden:

      • Requests that are repetitive, voluminous, convoluted, vague, or ambiguous, or that otherwise require extensive analysis or explanation, may potentially be objectionable on grounds of undue burden or expense (Okla. Stat. tit. 12, § 3226(B)(2)(c), (C); see also Fed. R. Civ. P. 36(a), Committee Note of 1970).

    5. Improper subject of request:

      • RFAs are limited to statements or opinions of fact or the application of law to fact, including the genuineness of documents (Okla. Stat. tit. 12, § 3236(A)).
      • A request that seeks an admission on other matters, such as the propounding party's subjective state of mind or purely legal conclusions, is potentially objectionable (National Independent Truckers Ins. Co. v. Gadway, 860 F. Supp. 2d 946, 955–56 (D. Neb. 2012)).

    6. Request outside scope of discovery or seeks privileged matter:

      • RFAs are limited to matters within the permissible scope of discovery (Okla. Stat. tit. 12, § 3236(A)).
      • The responding party may validly object to a request to admit a matter that is irrelevant to the claims and defenses asserted in the case or that is privileged (Okla. Stat. tit. 12, § 3226(B)(1)).

    7. Failure to provide document:

      • An objection may be based on the propounding party's failure to serve a document whose genuineness is the subject of the request if the document has not already been produced or is not otherwise available to the responding party (Okla. Stat. tit. 12, § 3236(A)).

    Motion for Withdrawal or Amendment of Admission:

    - The court may permit withdrawal or amendment of an admission when the presentation of the merits of the action will be subserved and the party who obtained the admission fails to show prejudice (Okla. Stat. tit. 12, § 3236(B)).

    Motion for Expenses Incurred in Proving Matter Not Admitted:

    - The requesting party may move for an order requiring the responding party to pay the reasonable expenses, including attorney's fees, incurred in proving a matter not admitted (Okla. Stat. tit. 12, § 3237(D)).

    Requests for Production
    • Responding
    • Propounding
    Preliminary Steps:
    Timing for Response:
    Contents of Response:
    Objections
    • Request exceeds the proper scope of discovery or seeks privileged material:
    • Request is unreasonably cumulative or duplicative, imposes undue burden or expense, or can be obtained from some other source that is more convenient, less burdensome, or less expensive:
    • Request does not comply with the requirements of Okla. Stat. tit. 12, § 3234:
    Signature and Service:
    Producing Requested Items:
    Supplement Response as Required:
    Overview:

    Request for Production of Documents (RFP) allows a party to request documents, electronically stored information (ESI), and other tangible items of evidence from the opposing party (Okla. Stat. tit. 12, § 3234(A)(1)). RFPs can only be served on another party to the action (Okla. Stat. tit. 12, § 3234(A)). To obtain document production from a nonparty requires service of a subpoena under Okla. Stat. tit. 12, § 2004.1 (Okla. Stat. tit. 12, § 3234(C)).

    Permissible Objects of RFPs:

    Documents and ESI (Okla. Stat. tit. 12, § 3234(A)(1)(a)).
    Other tangible things (Okla. Stat. tit. 12, § 3234(A)(1)(b)).
    Entry on land or other property for inspection (Okla. Stat. tit. 12, § 3234(A)(2)).

    Initial Disclosures:

    Review the opposing party's initial disclosures (Okla. Stat. tit. 12, § 3226(A)(2)).

    Determine Timing for Making Request:

    RFPs may be served after the petition is filed (Okla. Stat. tit. 12, § 3234(B)(2)(a)). The responding party must serve a written response within 30 days after being served (Okla. Stat. tit. 12, § 3234(B)(2)(a)).

    Determine Which Documents or Other Items to Request:

    RFP must describe the documents or other items to be produced with reasonable particularity (Okla. Stat. tit. 12, § 3234(B)(1)(a)).

    Subpoena to Nonparty:

    Request items from a nonparty by serving a subpoena duces tecum under Okla. Stat. tit. 12, § 2004.1 (Okla. Stat. tit. 12, § 3234(C)).

    Consider Whether to Seek Procedural Stipulation:

    Modify standard discovery procedures by stipulation (Okla. Stat. tit. 12, § 3229(2)).

    Electronic Discovery Considerations:

    Request production of ESI from another party (Okla. Stat. tit. 12, § 3234(A)(1)(a)).
    Specify the form in which ESI is to be produced (Okla. Stat. tit. 12, § 3234(B)(1)(c)).

    Destructive Testing:

    Notify opposing counsel and be prepared to substantiate the necessity for the test (Mirchandani v. Home Depot, U.S.A., Inc., 235 F.R.D. 611, 614 (D. Md. 2006)).

    Steps for Requesting Production of Documents or Other Things:
    1. Preserve evidence.
    2. Determine precise content of request (Okla. Stat. tit. 12, § 3234(B)(1)(a)).
    3. Determine earliest time for serving request (Okla. Stat. tit. 12, § 3234(B)(2)(a)).
    4. Prepare request.
    5. Serve request (Okla. Stat. tit. 12, §§ 2005(A), 3234(A)).
    6. File request only when warranted; preserve request and response (Okla. Stat. tit. 12, § 2005(D)).
    7. Complete inspection, copying, and other activities.
    8. Attempt informal resolution of any dispute (Okla. Stat. tit. 12, § 3237(A)(2)).
    9. Request supplementation of response as appropriate (Okla. Stat. tit. 12, § 3226(E)(1), (2)).
    10. Seek order to compel if response remains inadequate (Okla. Stat. tit. 12, § 3237(A), (B)).
    Clearly Specify Items or Categories of Items to Be Produced:

    Describe every designated item or category with "reasonable particularity" (Okla. Stat. tit. 12, § 3234(B)(1)(a)).

    Specify Time, Place, and Manner of Production:

    Specify a reasonable time, place, and manner for carrying out the production (Okla. Stat. tit. 12, § 3234(B)(1)(b)).

    Comply with Format Requirements:

    Check local rules for any format requirements.

    Sign Request:

    RFP must be signed by at least one attorney of record individually or by an unrepresented party (Okla. Stat. tit. 12, 3226(G)).

    Interrogatories
    • Responding
    • Propounding
    1. Available Information:

    The responding party must provide information that is "available" to them, including information through their attorney, investigators, or other agents (Okla. Stat. tit. 12, § 3233(A); State ex rel. Protective Health Servs. v. Billings Fairchild Ctr., Inc., 158 P.3d 484, 490 (Okla. Civ. App. 2006)).

    2. Deadline to Respond:

    Generally, a party must respond in writing within 30 days after service of the interrogatories, but this period does not commence until an answer to the petition is filed (Okla. Stat. tit. 12, § 3233(A)).

    3. Objections:
    4. Format Requirements:

    When answering each interrogatory, the party must restate the interrogatory and then provide the answer (Okla. Stat. tit. 12, § 3233(A)).

    5. Consider Option to Produce Business Records:

    Under certain conditions, a party may respond to an interrogatory by producing business records or a compilation, summary, or abstract based on those records (Okla. Stat. tit. 12, § 3233(C)).

    6. Answer Fully or Object:

    Each interrogatory must be answered separately or fully in writing and under oath, unless objected to (Okla. Stat. tit. 12, § 3233(A)).

    7. Sign Response:

    The person who answers the interrogatories must sign the response, and if there are objections, the attorney who makes the objections must sign the objections (Okla. Stat. tit. 12, § 3233(A)).

    8. Serve Response:

    The responding party must generally serve the answers and objections on the propounding party and on all other parties within 30 days after the interrogatories are served (Okla. Stat. tit. 12, §§ 2005(A), 3233(A)).

    9. Discovery Motions:

    Before filing a discovery motion, counsel should confer with opposing counsel in an attempt to resolve the dispute without resorting to the courts (Okla. Stat. tit. 12, § 3237(A)(2)).

    10. Supplementing Interrogatory Answers:

    The responding party must supplement their response in certain circumstances, as outlined in Okla. Stat. tit. 12, § 3226(E). Failure to seasonably supplement a response may subject the responding party to sanctions (Okla. Stat. tit. 12, § 3227).

    1. Nature and Purpose of Interrogatories

    Written questions served on other parties to gather information about the case (Okla. Stat. tit. 12, § 3233(A))
    Efficient and cost-effective method for obtaining information (Council on Judicial Complaints of Okla. v. Maley, 607 P.2d 1180, 1182 (Okla. 1980))

    2. Permissible Scope of Interrogatories

    Relate to any matter within the scope of discovery (Okla. Stat. tit. 12, § 3233(B))
    Obtain information relevant to any party's claim or defense (Okla. Stat. tit. 12, § 3226(B)(1)(a))

    3. Fact and Contention Interrogatories

    Fact interrogatories: provide factual information
    Contention interrogatories: involve opinions or contentions related to facts or application of law to facts (Okla. Stat. tit. 12, § 3233(B))

    4. Limitation on Number of Interrogatories

    Maximum of 30 interrogatories, unless court order or written stipulation from opposing party (Okla. Stat. tit. 12, § 3233(A))

    5. Use of Interrogatory Answers

    Answers can be used as permitted under Oklahoma Evidence Code (Okla. Stat. tit. 12, § 3233(B))

    6. Identify Information Sought

    Interrogatories serve three basic functions: identify sources for further discovery, obtain specific factual information, and clarify contentions in the case

    7. Review Initial Disclosures regarding Damage Calculations

    (Okla. Stat. tit. 12, § 3226(A)(2))

    8. Determine Timing

    Serve interrogatories after the petition is filed (Okla. Stat. tit. 12, § 3233(A))
    Consider discovery cutoff dates established by case scheduling or discovery order (Okla. Stat. tit. 12, § 3226(F))

    9. Format Requirements

    Number each interrogatory separately and leave space between each question
    Comply with general format requirements under statewide and local rules

    10. Effect of Numerical Limitations

    Only serve 30 interrogatories, with each subpart counting as a separate interrogatory (Okla. Stat. tit. 12, § 3233(A))

    11. Preparing Contention Interrogatories

    Contention interrogatories involve mixed questions of fact and law (Fed. R. Civ. P. 33, advisory committee note of 1970)

    12. Signature Requirement

    Attorney or unrepresented party must sign interrogatories (Okla. Stat. tit. 12, § 3226(G))

    13. Serving and Filing Interrogatories

    Serve copies on responding party and all other parties (Okla. Stat. tit. 12, §§ 2005(A), 3233(A))

    14. Addressing Inadequate Response to Interrogatories

    Attempt to resolve disagreements without involving the court (Okla. Stat. tit. 12, § 3229(2))
    If necessary, move to compel a response or for sanctions (Okla. Stat. tit. 12, §§ 3233(A), 3237(A), (B)(2), (E))

    15. Requesting Supplemental Answers

    Responding party must supplement or correct responses in certain circumstances (Okla. Stat. tit. 12, § 3226(E))

    Pennsylvania Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    • Subpoenas
    • Motions to Compel
    Requests for Admission
    • Responding
    • Propounding
    Timing:
    Objections:
    Requests Seeking Legal Conclusion:
    Lack of Sufficient Information:
    • An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the answering party states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him or her to admit or deny (Pa. R.C.P. No. 4014(b)).
    Answering and Denying Requests:
    • Deny in full, deny in part and otherwise admit, or admit.
    • Specify the part that is true and "qualify or deny the remainder" (Pa. R.C.P. No. 4014(b)).
    • If the responding party will claim that the request cannot be truthfully admitted or denied, the responding party must set forth in detail the reasons why (Pa. R.C.P. No. 4014(b)).
    Serving Verified Answers, Denials, and Objections:
    • Serve within 30 days after service of requests for admission, along with verification (Pa. R.C.P. No. 4014(b)).
    • An answer must be verified by the party, whereas an objection must be signed by the party or by the party's attorney (Pa. R.C.P. No. 4014(b)).
    Evaluating Withdrawal of Admissions:
    Sanctions:
    • If the court has ordered an amended answer to be served and the amended answer is not timely served, the requesting party may seek sanctions under Pa. R.C.P. No. 4019 (Reilly v. Ernst & Young, LLP, 2007 PA Super 216).
    • Motion to compel must usually be filed before a court will grant a motion for sanctions.
    • A motion to compel can ask for sanctions, such as costs or attorney's fees.
    Purpose:

    Requests for admission (RFA) are a discovery tool used to clarify issues, expedite litigation, and facilitate a decision based on the merits (Pa. R.C.P. No. 4014; Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 564 n.18 (2009)).

    Establishing Document Authenticity:

    RFAs can be used to establish a document's genuineness, authenticity, correctness, execution, signing, delivery, mailing, or receipt (Pa. R. Civ. P. 4014).

    Timing:

    RFAs may be served at any time after the commencement of an action, but the defendant is not required to serve answers or objections before the expiration of 45 days after the service of original process (Pa. R. Civ. P. 4014(b)).

    Scope:

    RFAs may relate to statements of fact, opinions, or application of law to fact, but not conclusions of law (Pa. R. Civ. P. 4012(a); Christian v. Pa. Fin. Responsibility Assigned Claims Plan, 454 Pa. Super. 512, 521–522 (Pa. Super. Ct. 1996)).

    Service:

    RFAs must be served on every party to the action (Pa. R. Civ. P. 440(a)(1)). Service may be made by handing or mailing a copy to or leaving a copy for each party at the address of the party's attorney (Pa. R. Civ. P. 440(a)(1)(ii)). Service by email is permitted if the parties agree or if an email address is included on an appearance or prior legal paper filed with the court in the action (Pa. R. Civ. P. 205.4(g)(1)).

    Responses:

    Denials must fairly meet the substance of the requested admission (Pa. R. Civ. P. 4014(b)). If a response claims that the request cannot be truthfully admitted or denied, detailed reasons must be set forth explaining why (P.C.S. v. J.E.B., 442 Pa. Super. 388, 397, 659 A.2d 1043, 1048 (Pa. Super. Ct. 1995)).

    Disputes:

    If the court determines that an answer does not comply with Rule 4014, it may order the matter admitted or an amended answer to be served (Pa. R. Civ. P. 4014(c)).

    Withdrawn Admissions:

    Courts may permit withdrawal of admissions when the presentation of the merits of the action will be subserved thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice them in maintaining the action or defense on the merits (Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 564 n.18 (2009); Coleman v. Wyeth Pharms., Inc., 2010 PA Super 158 (Pa. Super. Ct. 2010); Reilly v. Ernst & Young, LLP, 2007 PA Super 216 (Pa. Super. Ct. 2007)).

    Admissions at Trial:

    Facts admitted by a party in response to an RFA are treated as judicial admissions for purposes of the pending proceeding (Duquesne Light v. Woodland Hills Sc. Dist, 700 A.2d 1038 (Pa. Cmmw. Ct. 1997)). The court may permit withdrawal or amendment of the admission under Pa. R. Civ. P. 4014(d).

    Sanctions:

    Courts must consider four factors when assessing the severity of preclusion as a discovery sanction: prejudice endured by the nonoffending party, the noncomplying party's willfulness or bad faith, the importance of the excluded evidence, and the number of discovery violations by the offending party (Mancini v. Concorde Grp., Inc., J-A08023-17 (Pa. Super. Ct. Jun. 8, 2017); Rohm and Haas Co. v. Lin, 2010 PA Super 26, 992 A.2d 132, 142 (Pa. Super. 2010)).

    Requests for Production
    • Responding
    • Propounding
    Responding to Document Requests:
    Objection Details:
    Confidentiality Agreement or Protective Order:
    Producing Documents:
    Defending against Motion to Compel:
    Tailoring the Relief Sought in a Protective Order:
    • Request specific relief, such as deadlines, desired information, monetary sanctions, or rulings regarding the inclusion or preclusion of evidence or information (Rohm & Haas Co. v. Lin, 992 A.2d 132, 143)
    Timing

    Requests for production may be served upon the plaintiff at any time without leave of court (Pa. R. Civ. P. 4009.11(a))

    A request for production to non-plaintiff parties may be served either with or after the service of the original process upon them (Pa. R. Civ. P. 4009.11(a))

    Electronically Stored Information (ESI)

    ESI is within the scope of discovery (Pa. R. Civ. P. 4009.1(a))

    ESI must be produced in the form in which it is ordinarily maintained or in a reasonably usable form (Pa. R. Civ. P. 4009.1(b))

    Requests for ESI should be as specific as possible (Pa. R. Civ. P. 4009.11)

    Seeking Documents from Entities

    Depose the entity's custodian of records to ascertain the existence and location of any relevant documents and ESI (Pa. R. Civ. P. 4007.1(e))

    Preparing and Serving Requests

    Requests for production must be specific and formatted with enough space for the answer to be inserted (Pa. R. Civ. P. 4009.11(b))

    Disputes over Requests

    Review answers for specificity and accuracy (Pa. R. Civ. P. 4009.12(b)(1))

    Attempt amicable resolution of disputes before filing a motion to compel (Pa. R. Civ. P. 4019)

    Motion to Compel

    File a motion to compel if the dispute cannot be resolved amicably (Pa. R. Civ. P. 4019)

    Specify the relevance of the information sought in the motion (Pa. R. Civ. P. 4003.1(a))

    Sanctions for Noncompliance

    Move for sanctions if the responding party does not produce the requested documents or things after a motion to compel is granted (Pa. R. Civ. P. 4019)

    Using Produced Documents or Things at Trial

    Documents and things acquired through a request for production are only admitted at trial pursuant to the Rules of Evidence

    Interrogatories
    • Responding
    • Propounding
    1. Timing for response:

    Answers or objections to interrogatories must be provided within 30 days after service of the interrogatories. Failure to timely file objections typically results in waiver of those objections (Autochoice Unlimited, Inc. v. Avangard Auto Finance, Inc., 9 A.3d 1207, 2010 Pa. Super. 221 (Pa. Super. Ct. 2010)).

    2. Use of Interrogatories:

    Interrogatories may relate to any matters that can be inquired into under the discovery rules, and the answers may be used to the same extent as provided in Pa. R. Civ. P. 4020 for the use of the deposition of a party (Pa. R. Civ. P. 4005(a)).

    3. Limitations on Interrogatories:

    The number of interrogatories or sets of interrogatories to be served may be limited as justice requires to protect the party from unreasonable annoyance, embarrassment, oppression, burden, or expense (Pa. R. Civ. P. 4005(b)).

    4. Serving prior to Complaint:

    Interrogatories may be served prior to service of the complaint, but these interrogatories are limited in scope and must include a brief statement of the nature of the case (Pa. R. Civ. P. 4005(a) and 4003.8(a)).

    5. Case-Specific Interrogatories:

    The Pennsylvania Rules of Civil Procedure specifically allow for particular inquiries, such as certain opinions (Pa. R. Civ. P. 4003.1(c)), insurance agreements (Pa. R. Civ. P. 4003.2), and wealth of defendant for punitive damages (Pa. R. Civ. P. 4003.7).

    6. Continuing Duty to Disclose:

    A party does have a duty to supplement a prior response with respect to any prior question concerning the location or identity of persons with discoverable knowledge or the location or identity of an expert witness and/or the subject matter or substance of that expert witness' testimony (Pa. R. Civ. P. 4007.4).

    7. Answering Interrogatories:

    Answers must be verified, in writing, and inserted in the spaces provided in the interrogatories, or continued on a supplemental sheet (Pa. R. Civ. P. 4006(a)(1)). The answers must be signed by the person making them and the objections must be signed by the attorney making them (Pa. R. Civ. P. 4006(a)(2)).

    8. Objections:
    9. Protective Order:

    Upon a motion by a party or by the person from whom the discovery is sought and for good cause shown, the court may make any order to protect that person from unreasonable annoyance, embarrassment, oppression, burden, or expense (Pa. R. Civ. P. 4012(a)).

    10. Sanctions:

    The court may, on motion, make an appropriate order if a party fails to serve answers, sufficient answers, or objections to written interrogatories under Rule 4005 (Pa. R. Civ. P. 4019(a)(1)).

    11. Adverse Inference Instruction:

    Under certain circumstances, Pennsylvania courts have permitted jury instructions regarding a party's discovery violations such as the destruction and withholding of documents (Pennsylvania Suggested Standard Jury Instructions (Civil) 5.06).

    Propounding Interrogatories:

    Interrogatories may be served upon any party along with the original process or at any time thereafter (Pa. R. Civ. P. 4005(a))
    Interrogatories must provide sufficient space after each question for insertion of the answer or objection (Pa. R. Civ. P. 4005(a))
    Number of interrogatories may be limited as justice requires to protect the party from unreasonable annoyance, embarrassment, oppression, burden, or expense (Pa. R. Civ. P. 4005(b))
    Party serving interrogatories must serve copies to every other party in the action (Pa. R. Civ. P. 440)

    Scope of Discovery:

    A party may obtain discovery of any matter, not privileged, that is relevant to the subject matter involved in the pending action (Pa. R. Civ. P. 4003.1)
    Pre-complaint discovery is limited to information material and necessary to the filing of the complaint (Pa. R. Civ. P. 4003.8(a))

    Form Interrogatories:

    Pennsylvania Rules of Civil Procedure do not expressly provide for "form," "standard," or "uniform" interrogatories
    Basic expert interrogatories should be served on all parties at the beginning of every case (Pa. R. Civ. P. 4003.5)

    Case-Specific Interrogatories:

    Discovery of certain opinions, insurance agreements, and wealth of defendant for punitive damages are allowed under specific circumstances (Pa. R. Civ. P. 4003.1(c), 4003.2, 4003.7)

    Service of Interrogatories:

    Interrogatories must be served upon every other party to the action (Pa. R. Civ. P. 440(a)(1))
    Service may be made by hand, mail, facsimile, or electronic means (Pa. R. Civ. P. 440, 205.4)

    Continuing Duty to Disclose:

    A party has a duty to supplement a prior response with respect to any prior question concerning the location or identity of persons with discoverable knowledge, or the location or identity of an expert witness and/or the subject matter or substance of that expert witness' testimony (Pa. R. Civ. P. 4007.4(1))

    Sufficiently Specific and Meritorious Objections:

    Objecting party must provide specific and detailed objections (Hilton v. Willought, 13 Pa. D. & C.3d 587 (C.P. Philadelphia 1980))
    Objecting party has the burden of establishing the right to refuse discovery (Koken v. One Beacon Ins. Co., 911 A.2d 1021 (Pa. Cmmw. Ct. 2006))

    Motions to Compel and Sanctions:

    The court may make an appropriate order if a party fails to serve answers, sufficient answers, or objections to written interrogatories (Pa. R. Civ. P. 4019(a)(1))
    The decision whether to sanction a party for a discovery violation and the severity of the sanction imposed are matters vested in the sound discretion of the trial court (Rohm & Haas Co. v. Lin, 992 A.2d 132, 142, 2010 PA Super 26, at *8–*10 (Pa. Super. Ct. 2010))

    Request for Adverse Inference Instruction:

    Pennsylvania courts have permitted jury instructions regarding a party's discovery violations such as the destruction and withholding of documents (Pennsylvania Suggested Standard Jury Instructions (Civil) 5.06)

    Using Interrogatory Answers at Trial:

    Answers to interrogatories may be used at trial to the same extent as answers provided under Pa R. Civ. P. 4020 pertaining to the use of depositions at trial (Pa. R. Civ. P. 4005(c))
    Depositions and interrogatories may be used only insofar as they are also admissible under the Rules of Evidence (Jistarri v. Nappi, 378 Pa. Super. 583, 549 A.2d 210 (Pa. Super. Ct. 1987))

    Subpeonas
    • Overview
    Necessity for Obtaining Testimony or Other Evidence from Nonparties by Subpoena

    A subpoena is required to depose a nonparty or obtain documents or evidence in their possession (Pa. R.C.P. 234.1).

    Subpoena Directed to Pennsylvania Resident

    A subpoena may require any person who resides in Pennsylvania to attend and give a deposition, produce documents, or permit inspection (Pa. R.C.P. 234.1(a)-(b)).

    Subpoena Directed to Nonresident

    A court has subpoena power over a nonresident served within Pennsylvania, but service outside the state will be ineffective (Pa. R.C.P. 234.1; Branham v. Rohm & Haas Co., 2011 PA Super 78, 19 A.3d 1094, 1103-04).

    Subpoena Directed to Corporation or Other Organization

    A subpoena may be directed to a corporation or other organization, which must then designate one or more individuals to testify on its behalf (Pa. R.C.P. 4007.1(e)).

    Determine Timing of Deposition and Necessity for Leave of Court

    The plaintiff may not schedule a deposition without leave of court until 30 days after service of original process, unless certain exceptions apply (Pa. R.C.P. 4007.2(b)(1), (2)).

    Determine Whether to Seek Production of Documents or Things or Inspection of Premises

    A subpoena may command the person to produce documents or tangible things or permit inspection of premises (Pa. R.C.P. 234.1; Pa. R.C.P. 4009.21).

    Consider Burden Imposed on Witness

    A party or an attorney responsible for the issuance and service of a subpoena must take reasonable steps to avoid imposing an undue burden or expense on the person subject to the subpoena (Pa. R.C.P. 234.4(b)).

    Preparing a Subpoena

    A subpoena should be substantially in the form specified by Pa. R.C.P. 234.6 and comply with all of Pennsylvania's requirements.

    Contents of Subpoena Directed to Corporation or Other Organization

    A subpoena directed to a nonparty organization must advise the organization of its duty to designate one or more individuals to testify on its behalf (Pa. R.C.P. 4007.1(e)).

    Additional Requirements for Subpoena Duces Tecum

    A subpoena that requires the production of books, documents, or tangible things for inspection or copying must designate the items to be produced (Pa. R.C.P. 4009.1).

    Issuance of Subpoena

    Only the prothonotary may issue a subpoena upon a party's request (Pa. R.C.P. 234.2(a)).

    Who May Serve Subpoena

    A subpoena may be served by an officer authorized to serve process or by any suitable person over age 18 (Pa. R.C.P. 234.2(b)).

    Manner of Service

    Service must be in hand or left with a suitable adult at the person's place of abode, or by certified or ordinary mail (Pa. R.C.P. 402(a); Pa. R.C.P. 234.2(b)(2), (3)).

    Timing Requirements

    The party seeking nonparty discovery must serve a notice of intent to serve the subpoena upon all parties at least 20 days before the service of the subpoena (Pa. R.C.P. 4009.21(a), (d)(2); Pa. R.C.P. 4007.1).

    Payment of Witness Fees and Allowances

    The fee for one day's attendance and round-trip mileage must be tendered upon demand at the time the subpoena is served (Pa. R.C.P. 234.2(c); 42 Pa. C.S. §5903).

    Proof of Service

    If the subpoena is served by any person other than an officer authorized to serve process, proof of service must be made by affidavit or by declaration under penalty of perjury (Pa. R.C.P. 234.6).

    Notice of Deposition on Oral Examination

    If the deposition will be on oral examination, the party taking the deposition must serve on every other party reasonable notice in writing (Pa. R.C.P. 4007.1).

    Notice of Deposition on Written Questions

    If the deposition will be taken on written questions, the party taking the deposition must serve a copy of the questions on every other party, with a notice stating certain information (Pa. R.C.P. 4004(a)).

    Notice Concerning Video Deposition

    A party may seek to videotape and simultaneously record a deposition by stenographic means, and the notice or subpoena must include specific information (Pa. R.C.P. 4017.1).

    Serve Copy of Subpoena Duces Tecum on Parties if Testimony Is Not Required

    If the subpoena commands the production of documents and things or inspection of premises without a command to appear for a deposition, comply with the requirements of Pa. R.C.P. 4009.21.

    Responding to Subpoena

    In the absence of a valid objection or court order quashing or modifying the subpoena, the person subpoenaed must appear and provide testimony and otherwise comply with the subpoena (Pa. R.C.P. 234.5).

    Assert Claims of Privilege or Work-Product Protection as Appropriate

    If information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial-preparation material, that claim must be made expressly and supported by a description of the nature of the documents (Pa. R.C.P. 4009.12(b)(2)).

    Objections to Subpoena

    If the subpoena requires the witness to produce documents or things or to allow inspection of premises, the witness may assert any objections in writing in advance of the time for production or inspection (Pa. R.C.P. 234.1, 4009.21).

    Motion for a Protective Order or Motion to Quash

    A nonparty in receipt of a subpoena for documents or a deposition, who believes the subpoena is objectionable, can either move for a protective order under Pa. R.C.P. 4012 or move to quash the subpoena under Pa. R.C.P. 234.4(b).

    Obtaining Discovery Outside Pennsylvania

    Nonparty depositions of witnesses outside of Pennsylvania must proceed either on consent or by use of commissions or letters rogatory (42 Pa. C.S. §5325).

    Motions to Compel
    • Overview
    Informal Meeting Required:

    Many courts require a certification that counsel has conferred or attempted to confer with all interested parties before filing a motion to compel. (PA Philadelphia Cty. Civ. LR 208.2(c); Protocol for Discovery Motions Filed on/after March 15, 2021)

    Rules:

    Courts have broad authority to compel parties to comply with discovery obligations. (Appleman v. Feathers, 79 Pa. D. & C.4th 353, 360–61)
    Motions to compel are governed by the general motion rules. (Pa. R. Civ. P. 208.1 et seq.)
    Review local rules, standing orders, and judge-specific procedures and policies. (Pa. R. Civ. P. 239.3)

    Grounds & Standards:

    General, improper, or vague objections are likely to be overruled. (Hilton v. Willought, 13 Pa. D. & C.3d 587, 591; Epstein v. Safeway Trails, 68 Pa. D. & C.2d 175, 176–77; Ruddy v. Polaris Indus., 3:17-CV-0423 (M.D. Pa. Mar. 3, 2022))
    The burden of persuasion rests on the objecting party to demonstrate why discovery should not be ordered. (Blum v. Parkview Hosp., 2 Pa. D. & C.3d 345, 347–48)

    Contents:

    Motions to compel must follow Pa. R. Civ. P. 208.2–208.4 and their local equivalents.
    Request a specific order compelling discovery for specified information within a specified deadline. (Pa. R. Civ. P. 4019)

    In Camera Review:

    Request an in camera review when seeking information that has been withheld on the basis of privilege. (CLL Acad., Inc. v. Acad. House Council, 231 A.3d 884; Berg v. Nationwide Mut. Ins. Co., 44 A.3d 1164, 1179; Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 812; T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063; In re Estate of Wood, 818 A.2d 568, 573; Fisher v. Erie Ins. Exch., 2021 Pa. Super. 130 (Pa. Super. Ct. 2021))

    Sanctions:

    Courts have broad discretion regarding sanctions for discovery violations. (City of Philadelphia v. Fraternal Order of Police Lodge No. 5, 985 A.2d 1259)
    Obtain sanctions by obtaining an order compelling discovery and asking for sanctions if the party does not comply. (Pa. R. Civ. P. 4019(g)(1); Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916)
    Sanctions may include establishing facts, refusing to allow claims or defenses, striking pleadings, staying proceedings, entering judgment, imposing contempt, or other just orders. (Pa. R. Civ. P. 4019(c)(1)–(c)(5))

    Attorney's Fees and Expenses for Discovery Sanctions:

    Courts may order the responding party or the party's attorney, or both, to pay reasonable expenses, including attorney's fees, caused by the failure to comply with discovery obligations. (Pa. R. Civ. P. 4019(g)(1))
    Expenses may be awarded for failure to admit a requested admission, failure to attend a deposition, or failure to serve a subpoena on a witness. (Pa. R. Civ. P. 4019(d), (e), (f))
    Expenses may also be awarded if the filing of a motion for sanctions is for the purpose of delay or in bad faith. (Pa. R. Civ. P. 4019(h))

    South Carolina Discovery Cheat Sheet

    • Requests for Production
    • Interrogatories
    • Subpoenas
    Requests for Production
    • Responding
    • Propounding
    Preserve Relevant Evidence

    - Prevent routine purging or deletion of relevant information once litigation is reasonably probable (Kershaw County Bd. of Educ. v. United States Gypsum Co., 302 S.C. 390, 394 (1990); Pioneer Elecs. (USA) Inc. v. Cook, 294 S.C. 135, 138 (Ct. App. 1987))
    - No sanctions for lost electronically stored information due to routine, good-faith operation of an electronic information system (S.C. R. Civ. P. 37(f))

    Scope of Discovery

    - Relevant to the subject matter involved in the pending action (S.C. R. Civ. P. 26(b)(1))
    - Liberal construction of relevancy (Samples v. Mitchell, 329 S.C. 105, 110 (Ct. App. 1997))
    - Information need not be admissible to be discoverable (S.C. R. Civ. P. 26(b)(1))
    - Court's power to limit discovery (S.C. R. Civ. P. 26(b))

    Protective Orders

    - Limit scope of discovery and ensure proper use (S.C. R. Civ. P. 26(c))
    - Protect from annoyance, embarrassment, oppression, or undue burden by expense (S.C. R. Civ. P. 26(c))

    Responding to Document Requests

    - Produce only documents in your possession, custody, or control (S.C. R. Civ. P. 34(a))

    Procedure

    - Request must be signed by attorney of record or party (S.C. R. Civ. P. 26(g))
    - Describe items with reasonable particularity (S.C. R. Civ. P. 34(b))

    Deadline to Respond

    - 30 days for a party, 45 days for a defendant after service of the summons and complaint (S.C. R. Civ. P. 34(b))
    - Court may shorten or enlarge the time for responses

    Discovery of Electronic Evidence

    - Requests for ESI may specify the form or forms (S.C. R. Civ. P. 34(b))
    - Produce information in a form or forms in which it is ordinarily maintained or reasonably usable (S.C. R. Civ. P. 34(b))
    - State the form or forms you intend to use if objecting to the requested form (S.C. R. Civ. P. 34(b))

    Timing

    - Request for production may be served without leave of court (S.C. R. Civ. P. 34(b))

    Drafting the Response

    - State inspection and related activities will be permitted or state grounds for objection with specificity (S.C. R. Civ. P. 34(b))
    - Specify the part subject to objection and permit inspection of the rest (S.C. R. Civ. P. 34(b))

    Objections

    1. Nonexistence of the document
    • Document never created, lost, or destroyed (S.C. R. Civ. P. 34(a))
    • Describe efforts made to find the document or client's record retention policy if applicable

    2. Document not in possession, custody, or control
    • Party cannot be compelled to produce materials they do not possess, custody, or control (S.C. R. Civ. P. 34(a))
    • Documents in possession of a party's attorney are within the party's control and custody (S.C. R. Civ. P. 34(a))

    3. Request beyond the scope of discovery
    • Explain why the material requested is not reasonably calculated to lead to the discovery of admissible evidence (S.C. R. Civ. P. 26(b)(1))
    • Scope of discovery limited to matters relevant to any party's claim or defense (S.C. R. Civ. P. 26(b)(1))

    4. Request is vague and not described with "reasonable particularity"
    • Explain why you cannot respond with the description provided in the request (S.C. R. Civ. P. 34(b))

    5. Request is unduly burdensome
    • Party need not provide discovery of electronically stored information from sources identified as not reasonably accessible due to undue burden or cost (S.C. R. Civ. P. 26(b)(6)(A))
    • Show that the information is not reasonably accessible because of undue burden or cost, and the court may order discovery if the requesting party shows good cause (S.C. R. Civ. P. 26(b)(6)(A))

    6. Requested material is privileged
    • Matters that are privileged are not subject to inquiry through document requests (S.C. R. Civ. P. 26(b)(1))
    • Provide a privilege log for attorney-client privilege or work product doctrine objections (S.C. R. Civ. P. 26(b)(5)(A))

    Motion Practice

    - Move for a protective order if request is burdensome or improper (S.C. R. Civ. P. 26(c))
    - Motion to compel production if objection is lodged (S.C. R. Civ. P. 37)

    Serving Responses

    - Respond in writing within 30 days of service of the request, or within 45 days for a defendant after service of summons and complaint (S.C. R. Civ. P. 34(b))
    - Shorter or longer time may be stipulated or ordered (S.C. R. Civ. P. 29; S.C. R. Civ. P. 34(b))
    - Do not file responses with the court unless relevant to a pending motion or ordered by the court (S.C. R. Civ. P. 5(d); S.C. R. Civ. P. 26)

    Applicable Rules:
    Procedure:
    1. Document request must be signed by an attorney of record or by the party if not represented by counsel (S.C. R. Civ. P. 26(g)).
    2. Request must describe each item or category of items to be inspected with reasonable particularity and specify a reasonable time, place, and manner for the inspection (S.C. R. Civ. P. 34(b)).
    Deadline to Respond:
    • 30 days for a party served with a request, 45 days for a defendant after service of the summons and complaint (S.C. R. Civ. P. 34(b)).
    • Court may shorten or enlarge the time for responses.
    Improper Responses:
    • Motion to compel discovery under S.C. R. Civ. P. 37 if a party fails to adequately respond to discovery requests.
    • Court may require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both, to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees (S.C. R. Civ. P. 37(a)(4)).
    Discovery of Electronic Evidence:
    • Requests for ESI may specify the form or forms in which electronically stored information is to be produced (S.C. R. Civ. P. 34(b)(1)).
    • Consider scheduling a pretrial discovery conference for cases involving substantial electronic discovery.
    Timing:
    • A request for production may be served on another party without leave of court (S.C. R. Civ. P. 34(b)).
    Drafting Document Requests:
    • Include a caption and title, demand, definitions, instructions, and requests.
    • Requests must specify items to be inspected with reasonable particularity, a reasonable time, place, and manner for the inspection, and the form or forms in which ESI is to be produced (S.C. R. Civ. P. 34(b)).
    Instructions:
    • RFP instructions can define the scope of the requests and specify the form(s) in which ESI is to be produced (S.C. R. Civ. P. 34(b)(1)).
    Requests:
    Service Requirements:
    • Service must be made on the attorney if a party is represented, unless the court orders service on the party (S.C. R. Civ. P. 5(b)(1)).
    • Service of a document request under the rule means delivering a copy to the person, mailing it to the person at their last known address, or leaving it with the clerk of court if no address is known (S.C. R. Civ. P. 5(b)(1)).
    • "Delivery" means handing it to the person, leaving it at their office or dwelling place, or leaving a copy at their dwelling place or usual place of abode with someone of suitable age and discretion (S.C. R. Civ. P. 5(b)(1)).
    • Special rules apply to service on Sundays (S.C. R. Civ. P. 5(b)(2)).
    Interrogatories
    • Responding
    • Propounding
    1. Protective Orders (S.C. R. Civ. P. 26(c))
    • Limit the scope of discovery
    • Protect from annoyance, embarrassment, oppression, or undue burden by expense
    2. Standard Interrogatories (S.C. R. Civ. P. 33(b))
    • 8 standard interrogatories provided by the South Carolina Rules
    • Do not count toward the permitted 50 interrogatories
    3. Applicable Rules (S.C. R. Civ. P. 33)
    • Interrogatories must be answered by the party to whom they are directed
    • Each interrogatory must be answered separately and fully in writing under oath
    • Grounds for objecting to an interrogatory must be stated
    • The person who makes the answers must sign them, and an attorney who objects must sign any objections
    4. Timing for Response (S.C. R. Civ. P. 33(a))
    • Answers to interrogatories must be served within 30 days of the service of the interrogatories
    • A defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant
    5. Limitations (S.C. R. Civ. P. 33(b)(9))
    • Total number of interrogatories is limited to 50, including all discrete subparts
    6. Answering with Business Records (S.C. R. Civ. P. 33(c))
    • A party may produce records in lieu of answering an interrogatory, but these must be the "business records" of the party answering the interrogatories
    7. Scope of Interrogatories (S.C. R. Civ. P. 26(b) and S.C. R. Civ. P. 33(d))
    • Limited to matters which can be inquired into under Rule 26(b)
    • All relevant facts may be explored, but privileged matters are not subject to inquiry
    8. Objections (S.C. R. Civ. P. 33(a) and 33(d))
    • a. Not reasonably calculated to lead to the discovery of admissible evidence
      • Interrogatory is overly broad or irrelevant to the case
      • S.C. R. Civ. P. 26(b)(1) states that discovery should be limited to matters relevant to the subject matter involved in the action
    • b. Privileged information
      • Interrogatory seeks information protected by a recognized privilege (e.g., attorney-client privilege, work product doctrine)
      • S.C. R. Civ. P. 26(b)(1) states that privileged matters are not discoverable
    • c. Vague, ambiguous, or unintelligible interrogatory
      • Interrogatory is unclear or confusing, making it difficult for the responding party to provide a proper answer
      • S.C. R. Civ. P. 33(a) requires that the grounds for objecting to an interrogatory be stated
    • d. Opinion or contention that relates to fact or the application of law to fact
      • Interrogatory seeks an opinion or contention that may not be necessary at the current stage of the case
      • S.C. R. Civ. P. 33(d) states that the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial hearing or other later time
    • e. Cumulative, duplicative, or unduly burdensome
      • Interrogatory seeks information that has already been provided or can be obtained through other means, or the burden of answering the interrogatory outweighs its potential benefit
      • S.C. R. Civ. P. 26(b)(2)(C) allows the court to limit the frequency or extent of discovery if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive
    • f. Violation of the 50 interrogatories limit (S.C. R. Civ. P. 33(b)(9))
      • Interrogatory exceeds the permitted 50 interrogatories, including all discrete subparts, without leave of court or agreement of the answering party
    9. Service Requirements (S.C. R. Civ. P. 33(a))
    • Responding party must serve answers and objections within 30 days after being served with the interrogatories
    • A defendant may serve answers or objections within 45 days after service of the summons and complaint on that defendant
    • Interrogatory answers and objections must not be filed with the court, unless relevant to a pending motion or ordered by the court (S.C. R. Civ. P. 5(d) and S.C. R. Civ. P. 26)
    Applicable Rules:

    S.C. R. Civ. P. 33(b)(9): A party may serve up to 50 written interrogatories, including all discrete subparts, unless otherwise stipulated or ordered by the court.
    S.C. R. Civ. P. 33(d): Interrogatories may relate to any matter within the scope of discovery, as defined by S.C. R. Civ. P. 26(b).
    S.C. R. Civ. P. 37: Sanctions for failure to provide interrogatory answers.

    Number of Interrogatories Allowed:

    Limited to 50, including all discrete subparts (S.C. R. Civ. P. 33(b)(9)).
    Standard interrogatories in S.C. R. Civ. P. 33(b) do not count toward the 50 interrogatories limit.

    Answering with Business Records:

    Allowed under S.C. R. Civ. P. 33(c), but must be the business records of the party answering the interrogatories.

    Scope of Interrogatories:

    Limited to the bounds of inquiry delineated under Rule 26 (S.C. R. Civ. P. 33(d)).
    Relevant facts, not objectionable if reasonably calculated to lead to the discovery of admissible evidence (S.C. R. Civ. P. 26(b)(1)).
    Privileged matters are not subject to inquiry (S.C. R. Civ. P. 26(b)(1)).
    Opinion or contention relating to fact or application of law to fact allowed, but court may order delay in answering (S.C. R. Civ. P. 33(d)).

    Standard Interrogatories (S.C. R. Civ. P. 33(b)):
    • Names and addresses of known witnesses, statements taken, and statement possession.
    • List of photographs, plats, sketches, or other prepared documents related to the claim or defense.
    • Names and addresses of treating physicians and hospitals, and statement of medical costs (personal injury cases).
    • Names and addresses of insurance companies, policy numbers, and coverage amounts.
    • Itemized statement of all damages, exclusive of pain and suffering.
    • Names and addresses of expert witnesses for trial.
    • Summary of important facts known to or observed by witnesses or copies of written or recorded statements.
    • Proper identification for improperly identified defendants and acceptance of service for amended summons and pleadings.
    Drafting Interrogatories:

    Review S.C. R. Civ. P. 26 for guidance on the discovery process, scope, and limitations.

    Service Requirements (S.C. R. Civ. P. 33(a)):

    Interrogatories may be served upon any other party after the commencement of the suit without leave of court.
    Answers must be served within 30 days of the service of interrogatories, or within 45 days after service of the summons and complaint for a defendant.

    Subpeonas
    • Responding
    • Propounding
    Evaluate Subpoena:

    - Failure to respond to a valid subpoena can result in punishment by the issuing court (S.C. R. Civ. P. 45(e)).

    - The court must quash or modify a subpoena if it fails to allow a reasonable time to comply, requires excessive travel, requires disclosure of privileged or protected matter, or subjects a person to undue burden or cost (S.C. R. Civ. P. 45(c)(3)(A)).

    Responding:

    - Deadline to comply with a discovery subpoena is the date indicated in the subpoena (S.C. R. Civ. P. 45(a)(1)).

    - Options before the compliance date include interposing objections, moving to quash or modify the subpoena, or moving for a protective order (S.C. R. Civ. P. 45(c)(2)(B), 45(c)(3)(A), 26(c)).

    Deposition Subpoenas:

    - Ensure the client appears at the requested time and location, understands the format of a deposition, and is prepared to testify on relevant topics (S.C. R. Civ. P. 45(a)(1)(C)).

    Entity Depositions:

    - The entity must designate one or more officers, directors, managing agents, or other persons to testify on its behalf (S.C. R. Civ. P. 30(b)(6)).

    Subpoena Duces Tecum Responses:

    - Produce documents as they are kept in the usual course of business or organized and labeled to correspond with the categories in the demand (S.C. R. Civ. P. 45(d)(1)(A)).

    - Special rules apply for electronically stored information (S.C. R. Civ. P. 45(d)(1)(B), 45(d)(1)(C), 45(d)(1)(D), 26(b)(6)).

    Objections:
    1. Insufficient time for compliance:
    2. Excessive travel requirements:
      • Object to a subpoena if it requires a nonparty witness to travel more than 50 miles from where they reside, are employed, or regularly transact business in person (S.C. R. Civ. P. 45(c)(3)(A)(ii)).
    3. Privileged or protected matter:
      • Object to a subpoena if it requires disclosure of privileged or other protected matter, and no exception or waiver applies (S.C. R. Civ. P. 45(c)(3)(A)(iii)).
    4. Undue burden or cost:
    5. Trade secret or confidential information:
      • Object to a subpoena if it requires the disclosure of a trade secret or other confidential research, development, or commercial information (S.C. R. Civ. P. 45(c)(3)(B)(i)).
    6. Unretained expert's opinion or information:
      • Object to a subpoena if it requires the disclosure of an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party (S.C. R. Civ. P. 45(c)(3)(B)(ii)).
    7. Substantial expense for nonparty travel:
      • Object to a subpoena if it requires a nonparty to incur substantial expense to travel from the county where they reside, are employed, or regularly transact business in person (S.C. R. Civ. P. 45(c)(3)(B)(iii)).
    8. Unreasonable or oppressive subpoena:
    9. Procedural defects:
    Privilege and Work Product Protection:

    - Expressly assert the privilege and describe the nature of each withheld document in a privilege log (S.C. R. Civ. P. 45(d)(2)(A)).

    Motion Practice:

    - Motions in response to a subpoena include motions to quash, modify, or for a protective order (S.C. R. Civ. P. 45(c)(3)(A); S.C. R. Civ. P. 26(c)).

    - Reach out to the serving party to try to resolve the dispute before making a motion (S.C. R. Civ. P. 11(a)).

    Motions to Quash or Modify the Subpoena:

    - Must be made within 14 days after service or before the date of compliance (Babb v. Estate of Watson, Appellate Case No. 2010-166467 (S.C. Ct. App. Oct. 31, 2012); S.C. R. Civ. P. 45(c)(3)(A)).

    Motion for Protective Order:

    - Can be made by the recipient of a subpoena or any party to the action in the court where the action is pending (S.C. R. Civ. P. 26(c)).

    Appeal:

    - Discovery orders are interlocutory and not appealable as of right (Ex parte Whetstone, 347 S.E.2d 881, 881 (S.C. 1986)).

    - A contempt order is final and appealable (Tucker v. Honda of S.C. Mfg., 582 S.E.2d 405, 406 (S.C. 2003)).

    Types of Subpoenas:

    a. Subpoena ad testificandum (subpoena for testimony) - requires a person to testify at a proceeding (S.C. R. Civ. P. 45(a)(1)).

    b. Subpoena duces tecum (subpoena for documents) - requires the subpoenaed entity to produce books, papers, and other things (S.C. R. Civ. P. 45(a)(1)).

    c. Information subpoena - enforces a money judgment obtained through successful litigation, typically a set of written questions that the subpoenaed entity must answer under oath (S.C. R. Civ. P. 45(a)(1)).

    Drafting a Subpoena:

    a. State the name of the court from which it is issued, the title of the action, the name of the court in which it is pending, and its civil action number (S.C. R. Civ. P. 45(a)(1)).

    b. Command each person to attend and give testimony or produce and permit inspection and copying of designated books, documents, or tangible things (S.C. R. Civ. P. 45(a)(1)).

    c. Set forth the text of subdivisions (c) (Burden) and (d) (Duties in Responding) of S.C. R. Civ. P. 45 (South Carolina Civil Procedure § 45.B.1 (2014); S.C. R. Civ. P. Form 254).

    Identifying the Subject of a Subpoena:

    a. A "person" includes natural persons and juristic persons, such as corporations or governments (S.C. R. Civ. P. 45(a)(1)(C)).

    Minimizing the Burden on Recipient of Subpoena:

    a. Take reasonable steps to avoid undue burden or expense on a person subject to a subpoena (S.C. R. Civ. P. 45(c)).

    b. Nonparty can be compelled to attend a deposition only in the county in which the witness resides, is employed, or regularly transacts business in person, or another convenient place fixed by a court order (S.C. R. Civ. P. 30(a)(2)).

    c. No discovery subpoena can require a nonparty to travel more than 50 miles from the county where that person resides, is employed, or regularly transacts business in person (S.C. R. Civ. P. 45(c)(3)(A)(ii)).

    Out-of-State Subpoenas:

    a. South Carolina has adopted the Uniform Interstate Depositions and Discovery Act (S.C. Code Ann. § 15-47-100 et seq.).

    b. If seeking discovery in a state that is not a party to the Uniform Interstate Depositions and Discovery Act, follow the rules of that state for issuing and serving a subpoena.

    Subpoenas Duces Tecum:

    a. Subject of the subpoena does not need to appear in person and simply needs to arrange for the subpoenaed material to be delivered (S.C. R. Civ. P. 45(C)(2)(a)).

    b. Special rules for electronically stored information (S.C. R. Civ. P. 45(d)).

    c. Party subpoenaing documents from a nonparty without a deposition must provide copies of the documents to other requesting parties upon written request (S.C. R. Civ. P. 45(c)(2)(A)).

    Issuing and Serving a Subpoena:

    a. Discovery subpoena may be served anywhere within the state by any person who is not a party and at least 18 years old (S.C. R. Civ. P. 45(b)(1)).

    b. Service of subpoenas must be made in the same manner as a summons and complaint under S.C. R. Civ. P. 4(d) or 4(j).

    Response Deadline:

    a. Subpoena must be served at least 10 days before the time specified for compliance (Taylor v. Taylor, 434 S.C. 307, 322 (2021); In re Fabri, 418 S.C. 384, 388 (2016)).

    b. Person must file a motion to quash a subpoena within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service (Babb v. Estate of Watson, Appellate Case No. 2010-166467 (S.C. Ct. App. Oct. 31, 2012)).

    Enforcing a Subpoena:

    a. Court may hold a person in contempt if they refuse to comply with a subpoena or an order relating to a subpoena without adequate excuse (S.C. R. Civ. P. 45(e)).

    b. Adequate cause for failure to obey exists under certain circumstances (S.C. R. Civ. P. 45(e)).

    Appealing Subpoena-Related Rulings:

    a. Discovery orders are interlocutory and not appealable as of right (Ex parte Whetstone, 289 S.C. 580, 580 (1986)).

    b. Contempt order is final in nature and appealable (Tucker v. Honda of S.C. Mfg., 354 S.C. 574, 576 (2003)).

    c. To challenge specific rulings of discovery orders, the subpoena recipient must refuse to comply, be found in contempt, and appeal from the contempt finding (Davis v. Parkview Apartments, 409 S.C. 266, 280–81 (2014); Whetstone, 289 S.C. at 580).

    Texas Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    Requests for Admission
    • Responding
    • Propounding
    Timing:

    - Serve a written response within 30 days after the RFAs were served on your client (Tex. R. Civ. P. 198.2(a)).
    - Calculate the response time period according to Tex. R. Civ. P. 4 and 21a.
    - Time periods may be modified by agreement or court order (Tex. R. Civ. P. 191.1).

    Failure to Timely Respond:

    - Matter is deemed admitted without further court order (Tex. R. Civ. P. 198.2(c)).
    - Applies to pro se litigants and represented parties (Goss v. Bobby D. Assoc., 94 S.W.3d 65, 69).

    Responding:

    - Set forth each individual request, followed by your answer, objection, or other response (Tex. R. Civ. P. 193.1, 198.2(b)).
    - Permissible responses: admit, deny, qualify, object, assert a claim of privilege, or explain why the party cannot admit or deny the request due to lack of information (Tex. R. Civ. P. 198.2(b)).

    Objections:
    1. Request pertains to a matter outside the permissible scope of discovery:
      • If the request is not relevant to the subject matter of the action, you may object on the grounds that it is outside the permissible scope of discovery (Tex. R. Civ. P. 192.3).
    2. Request is not a proper subject for an RFA under Tex. R. Civ. P. 198:
      • If the request calls for the responding party to admit or deny a pure question of law, you may object that the matter is not a proper subject for an RFA (ReadyOne Indus. v. Flores, 460 S.W.3d 656, 664–65; Boulet v. State, 189 S.W.3d 833, 838).
    3. Request exceeds the maximum number permitted in a Level 1 case:
      • In a case governed by a Level 1 discovery plan, you may object if the request, along with other RFAs served on the responding party by the requesting party in the case, exceeds the maximum number (15) permitted in a Level 1 case (Tex. R. Civ. P. 190.2(b)(6)).
    4. Request is vague, ambiguous, or overly broad:
      • If the request is vague, ambiguous, or overly broad, you may object on the grounds that it is not reasonably calculated to lead to the discovery of admissible evidence (Tex. R. Civ. P. 192.3(a)).
    5. Request is unduly burdensome or harassing:
      • If the request imposes an undue burden or expense on the responding party, or if it is intended to harass, you may object on these grounds (Tex. R. Civ. P. 192.4).
    6. Request seeks information protected by privilege:
      • If the request seeks information that is protected by a privilege, such as attorney-client privilege or work product doctrine, you may object and assert the privilege (Tex. R. Civ. P. 193.1, 198.2(b)).
    Signature Requirement:

    - Must be signed by an attorney or the responding party (Tex. R. Civ. P. 191.3(a)).
    - Certification that the response or objection is consistent with the rules, has a good faith factual basis, is not interposed for any improper purpose, and is not unreasonable or unduly burdensome (Tex. R. Civ. P. 191.3(c)).

    Serving and Filing the Response:

    - Do not initially file RFAs and responses with the court clerk (Tex. R. Civ. P. 191.4(a)(1), (2)).
    - File if relevant to a discovery motion or needed for use at trial or in another court proceeding (Tex. R. Civ. P. 191.4(b)(2), (c)(2)).
    - Serve copies of the response on the requesting party and all other parties of record (Tex. R. Civ. P. 191.5, 198.2(a)).
    - Retain an original or exact copy of the response during the pendency of the case and any related appellate proceedings (Tex. R. Civ. P. 191.4(d)).

    Motion to Withdraw or Amend Admission:

    - Apply to the court for an order permitting withdrawal or amendment of the admission if good cause exists, the party relying on the responses and deemed admissions will not be unduly prejudiced, and the presentation of the merits of the action will be subserved (Tex. R. Civ. P. 198.3).
    - Moving party has the burden of proving all three conditions exist (In re Sewell, 472 S.W.3d 449, 455).
    - Procedure for motion: confer with the opposing party, certify reasonable efforts to resolve the matter without court intervention, and file a motion with supporting affidavits if necessary (Tex. R. Civ. P. 191.2).
    - Review of court's decision on motion: trial court's power to permit or deny the withdrawal of admissions is discretionary and will be reversed on appeal only if the court acted arbitrarily, without reference to guiding rules or principles, or unreasonably (Stelly v. Papania, 927 S.W.2d 620, 622).

    Overview:

    RFAs are written documents served by one party to a civil action on another, demanding the other party admit or deny a particular matter within the scope of discovery (Tex. R. Civ. P. 198.1)

    Purpose: to simplify trials by eliminating matters about which there is no real controversy (Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950))

    Useful for addressing uncontroverted or evidentiary matters (Marino v. King, 355 S.W.3d 629, 630, 632–34 (Tex. 2011))

    Failure to Respond:

    If no timely response, matter is deemed admitted without further court order (Tex. R. Civ. P. 198.2(c))

    Requesting party must ensure RFAs were timely and properly served (Rent America, Inc. v. Amarillo Nat. Bank, 785 S.W.2d 190, 194 (Tex. App.—Amarillo 1990, writ denied))

    Effect of Admissions:

    Matters admitted are conclusively established as to the party making the admission, unless court permits withdrawal or amendment (Tex. R. Civ. P. 198.3)

    Admissions apply only to the party making the admission (Tex. R. Civ. P. 198.3) and only for the pending action (Tex. R. Civ. P. 198.3; Osteen v. Glynn Dodson Inc., 875 S.W.2d 429 (Tex. App. 1994))

    Permissible Scope of RFAs:

    RFAs may request the opposing party to admit the truth of any matter within the scope of discovery (Tex. R. Civ. P. 198.1)

    RFAs may request admission of statements of opinion, fact, application of law to fact, and genuineness of documents (Tex. R. Civ. P. 198.1)

    Timing:

    RFAs may be served at any time after the commencement of the action but no later than 30 days before the end of the discovery period (Tex. R. Civ. P. 198.1)

    Limits:

    Level 1 discovery control plan: each party may serve no more than 15 RFAs on any other party (Tex. R. Civ. P. 190.2(b)(5))

    Level 2 and Level 3 plans: no express limits on the number of RFAs (Tex. R. Civ. P. 190.3(b), 190.4(b)(3))

    Drafting RFAs:

    RFAs must be in writing and each matter for which an admission is requested must be stated separately (Tex. R. Civ. P. 198.1)

    RFAs must be signed by an attorney or the requesting party (Tex. R. Civ. P. 191.3(a))

    Serving and Filing RFAs:

    RFAs and responses should not be filed with the court clerk initially (Tex. R. Civ. P. 191.4(a)(1), (2))

    RFAs must be served on the responding party and all other parties of record (Tex. R. Civ. P. 191.5, 198.1)

    Motion to Determine Sufficiency of Response:

    If the responding party objects or provides an evasive or incomplete answer, the requesting party may move for an order determining the sufficiency of the objection or response (Tex. R. Civ. P. 215.4(a))

    Motion for Award of Expenses Incurred in Proving Matters Not Admitted:

    If the responding party fails to admit the genuineness of any document or the truth of any matter, the requesting party may apply for an order requiring the responding party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees (Tex. R. Civ. P. 215.4(b))

    Requests for Production
    • Responding
    • Propounding
    Overview:
    Timing for Response:
    Required Scope of Response:
    Contents of Response:
    Objections:
    1. Relevance Objection
      • Object to a request on the grounds that the requested information is not relevant to the subject matter of the pending action (Tex. R. Civ. P. 192.3(a))
      • The scope of discovery is limited to matters that are relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party (Tex. R. Civ. P. 192.3(a))
    2. Overly Broad or Unduly Burdensome Objection
      • Object to a request on the grounds that it is overly broad or unduly burdensome (Tex. R. Civ. P. 192.4(a))
      • The discovery request must not be unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient, less burdensome, or less expensive (Tex. R. Civ. P. 192.4(a))
    3. Time and Place of Production Objection
      • Object to the requested time and place of production (Tex. R. Civ. P. 193.2(b))
      • State a reasonable alternative time and place for complying with the request and comply at that time and place without further request or order (Tex. R. Civ. P. 193.2(b))
    4. Electronically Stored Information (ESI) Format Objection
      • Object to the request for ESI in a specified format if your client is unable, through reasonable efforts, to retrieve the requested information or data or produce it in the requested format (Tex. R. Civ. P. 196.4)
    5. Privilege Objection
      • Withhold privileged material or information from the response and inform the requesting party that it has been withheld (Tex. R. Civ. P. 193.3(a))
      • Notification must include a statement that information or material responsive to the request has been withheld, an identification of the request to which the withheld information or material relates, and a specification of the privilege(s) asserted (Tex. R. Civ. P. 193.3(a))
    6. Work Product Objection
    7. Trade Secret Objection
      • Object to a request on the grounds that the requested information constitutes a trade secret (Tex. R. Civ. P. 192.5(b))
      • The party seeking to avoid discovery of a trade secret must make a specific, verified denial of the matters in question and provide the legal and factual basis for the denial (Tex. R. Civ. P. 192.5(b))
    8. Privacy Objection
      • Object to a request on the grounds that it seeks information that would violate a person's right to privacy (Tex. R. Civ. P. 192.6(b))
      • The court may make any order in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights (Tex. R. Civ. P. 192.6(b))
    Privilege:
    • Withhold privileged material and inform requesting party (Tex. R. Civ. P. 193.3(a))
    • Notification must include a statement that information has been withheld, identification of the request, and specification of the privilege(s) asserted (Tex. R. Civ. P. 193.3(a))
    Requesting Ruling on Objection or Privilege Claim:
    Seeking Protective Order as Alternative:
    Signature Requirement:
    Filing and Service of Response:
    Amending or Supplementing Response:
    • Amend or supplement the response if it was incomplete or incorrect when made or has become incomplete or incorrect (Tex. R. Civ. P. 193.5(a))
    Production of Requested Documents and Items:
    • Produce requested items within the person's possession, custody, or control at the time and place requested or stated in the response (Tex. R. Civ. P. 196.3(a))
    Production of Copies vs. Originals:
    Organization of Produced Materials:
    • Produce requested items as they are kept in the usual course of business or organized and labeled to correspond with the categories in the RFP (Tex. R. Civ. P. 196.3(c))
    Allocation of Expenses:
    • Expense of producing items borne by the responding party; expense of inspecting, sampling, testing, photographing, and copying items produced borne by the requesting party (Tex. R. Civ. P. 196.6)
    Overview:

    A Request for Production of Documents (RFP) is a discovery device that allows a party to request the other party to produce documents and tangible items within the scope of discovery (Tex. R. Civ. P. 196.1(a)). RFPs are not appropriate for obtaining discovery from nonparties; instead, use a subpoena under Tex. R. Civ. P. 205 (Tex. R. Civ. P. 205.1).

    Scope of Discoverable Documents and Tangible Things:

    A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending case (Tex. R. Civ. P. 192.3(a)). Items within the scope of discovery include papers, books, accounts, drawings, graphs, charts, photographs, electronic or videotape recordings, and data compilations (Tex. R. Civ. P. 192.3(b)).

    Timing Considerations:

    An RFP may be served after the beginning of and no later than 30 days before the end of the applicable discovery period (Tex. R. Civ. P. 196.1(a)). The end of the discovery period depends on the discovery control plan level that is applicable to the case (Tex. R. Civ. P. 190.2(b)(1), 190.3(b)(1), 190.4(b)(2)).

    Limitations in Level 1 Cases:

    In a Level 1 discovery control plan, a party may not serve more than 15 RFPs on any other party (Tex. R. Civ. P. 190.2(b)(4)).

    Drafting an RFP:
    Service and Filing:
    Handling Responses and Objections to RFPs:

    The responding party must serve a written response within 30 days after service of the RFPs (Tex. R. Civ. P. 196.2(a)). Assess the validity of the stated grounds for the objection and attempt to resolve the dispute before seeking court intervention (Tex. R. Civ. P. 191.2, 193.4).

    Special Requirements for RFPs Requesting Medical or Mental Health Records of Nonparties:

    If a party requests another party to produce medical or mental health records regarding a nonparty, the requesting party must serve the nonparty with the request for production (Tex. R. Civ. P. 196.1(c)(1)).

    Interrogatories
    • Responding
    • Propounding
    Timing:

    - Respond within 30 days after service of interrogatories (Tex. R. Civ. P. 197.2(a))
    - Deadline may be altered by agreement or court order (Tex. R. Civ. P. 191.1)

    Who Will Respond:

    - Both attorney and client involved in preparation and signing of the response (Tex. R. Civ. P. 197.2(d), 191.3(a))

    Required Scope of Response:

    - Complete response based on all reasonably available information (Tex. R. Civ. P. 193.1)
    - Ongoing duty to update responses (Tex. R. Civ. P. 193.5)

    Objections:

    - State objections within the time for response (Tex. R. Civ. P. 193.2(a), (e))
    - Potential objections include exceeding permissible number, scope, privilege, unavailability, or undue burden (Tex. R. Civ. P. 190.2(b)(3), 190.3(b)(3), 190.4(b), 197.1, 193.1, 192.3(a), 192.4(a), 192.5, 192.6)

    Contents of Response:

    - Set forth each interrogatory and corresponding answer or objection (Tex. R. Civ. P. 193.1, 197.2(b))

    Option to Produce Business Records:

    - Allowed if the burden of deriving the answer is substantially the same for both parties (Tex. R. Civ. P. 197.2(c))

    Objections:

    1. Exceeding Permissible Number of Interrogatories:
    • Level 1 discovery control plan: maximum 15 interrogatories (Tex. R. Civ. P. 190.2(b)(3))
    • Level 2 discovery control plan: maximum 25 interrogatories (Tex. R. Civ. P. 190.3(b)(3))
    • Level 3 discovery control plan: limit set by the court (Tex. R. Civ. P. 190.4(b))

    2. Exceeding Permissible Scope of Discovery:
    • Interrogatories must be relevant to the subject matter of the action and within the scope of permissible discovery (Tex. R. Civ. P. 197.1, 192.3)

    3. Information Sought is Privileged or Subject to Work Product Protection:
    • Privileged matters and work product are outside the scope of permissible discovery (Tex. R. Civ. P. 192.3(a), 192.5)
    • To assert privilege, follow the procedure set forth in Tex. R. Civ. P. 193.3, rather than "objecting" (Tex. R. Civ. P. 193.2(f))

    4. Information Sought is Unavailable to Responding Party:
    • Responding party must provide information reasonably available at the time of the response (Tex. R. Civ. P. 193.1)
    • Object if the information requested is not reasonably available

    5. Interrogatories are Unduly Burdensome:
    • Responding party may seek protection from unduly burdensome or expensive discovery requests (Tex. R. Civ. P. 192.4, 192.6)

    Signature Requirement:

    - Signed by attorney or party, including contact information (Tex. R. Civ. P. 191.3(a), (d))

    Verification by Responding Party:

    - Signed under oath by the responding party, with exceptions (Tex. R. Civ. P. 197.2(d))

    Filing and Service of Response:

    - Do not file with the court unless needed for a motion or proceeding (Tex. R. Civ. P. 191.4(a)(2), (c))
    - Serve copies on all parties of record (Tex. R. Civ. P. 191.5)

    Amending or Supplementing Response:

    - Amend or supplement if the response was incomplete or incorrect when made (Tex. R. Civ. P. 193.5(a))
    - Made reasonably promptly after discovering the necessity for such a response (Tex. R. Civ. P. 193.5(b))

    Overview:

    Interrogatories are written questions directed to another party in a lawsuit to obtain discoverable information relevant to the lawsuit (Tex. R. Civ. P. 197.1, 197.2(d)). Potential topics include identity of persons expected to testify, discoverable consulting experts, location of documents and tangible evidence, and basic information concerning a party's contentions, claims, or defenses (Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974); Fisher v. Continental Ill. Nat. B. & T. Co. of Chicago, 424 S.W.2d 664, 669 (Tex. Civ. App.—Houston [14th Dist.] 1968)).

    Permissible Scope of Interrogatories:

    Interrogatories may inquire about any matter within the scope of discovery, except for certain matters relating to testifying experts (Tex. R. Civ. P. 197.1). Discoverable matters appropriate for interrogatories include identity and location of documents, photographs, and other tangible things (Tex. R. Civ. P. 192.3(b); Limas v. De Delgado ex rel. Delgado Jasso, 770 S.W.2d 953 (Tex. App. 1989)).

    Timing:

    Interrogatories may be served after the beginning of and no later than 30 days before the end of the applicable discovery period (Tex. R. Civ. P. 197.1). The discovery period depends on the discovery control plan level that is applicable to the case (Tex. R. Civ. P. 190.2(b)(1), 190.3(b)(1), 190.4(b)(2)).

    Limits on Interrogatories:

    Level 1: A party may serve no more than 15 written interrogatories on any other party (Tex. R. Civ. P. 190.2(b)(3)).
    Level 2: A party may serve no more than 25 written interrogatories on any other party (Tex. R. Civ. P. 190.3(b)(3)).
    Level 3: A custom discovery plan may set limits on the number of interrogatories higher or lower than the limits for Level 1 or Level 2 cases (Tex. R. Civ. P. 190.4(b)).

    Drafting Interrogatories:
    • Set a deadline for service of the responding party's written response, which is generally 30 days after service of the interrogatories (Tex. R. Civ. P. 197.2(a)).
    • Include instructions or definitions, if appropriate.
    • Number interrogatories sequentially (e.g., Interrogatory No. 1, Interrogatory No. 2, etc.).
    • Include attorney's signature (or propounding party's signature, if not represented) and required contact information (Tex. R. Civ. P. 191.3(a)).
    Serving and Filing Interrogatories:

    Interrogatories should not be filed with the court unless needed for a motion or other proceeding (Tex. R. Civ. P. 191.4(a)(1), (c)). Copies of the interrogatories must be served on the responding party and on all other parties of record (Tex. R. Civ. P. 191.5, 197.1).

    Motion to Compel:

    If the responding party fails to answer or object to properly served interrogatories, consider making a noticed motion to compel a full and proper response (Tex. R. Civ. P. 215.1(b)(3), (c)).

    Exclusion of Evidence:

    A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed (Tex. R. Civ. P. 193.6(a)).

    Use of Interrogatory Answers:

    The evidentiary use of interrogatory answers is subject to the general rules of evidence (Sammons Enterprises, Inc. v. Manley, 540 S.W.2d 751 (Tex. Civ. App. 1976); Ford Motor Credit v. Draper, 401 S.W.2d 848 (Tex. Civ. App. 1966)). Interrogatory answers may be used as evidence only against the responding party (Tex. R. Civ. P. 197.3).

    Virginia Discovery Cheat Sheet

    • Requests for Production
    • Interrogatories
    • Subpoenas
    • Motions to Compel
    Requests for Production
    • Responding
    • Propounding
    Overview:

    - A party must produce any responsive item within their possession, custody, or control (Va. Sup. Ct. R. 4:9(a); Va. Sup. Ct. R. 4:1(b)).

    - Control is defined broadly, often focusing on practical ability to obtain documents as well as legal right (Wilson v. Norfolk & Portsmouth Belt Line R.R. Co., 69 Va. Cir. 153, 182 (Va. Cir. Ct. 2005); Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 472 (S.D. Fla. 2011)).

     
    Privilege:

    - When privileged material will be withheld, the responding party must identify the items with enough particularity to demonstrate that the privilege exists, without revealing the protected information (Va. Sup. Ct. R. 4:1(b)(6), 4:9(b)(ii)).

     
    Timing:

    - The responding party must serve a written response within 21 days of service of the RFP or within a shorter or longer time as the court may allow (Va. Sup. Ct. R. 4:9(b)(ii)).

    - The deadline may be altered by stipulation of the parties or by order of the court on motion (Va. Sup. Ct. R. 1:18(b), 4:4, and 4:13).

     
    Format of Response:

    - Responses and objections are served on the opposing party but not filed with the court (Va. Sup. Ct. R. 4:9(d)).

    - The response document should comply with general format requirements applicable to litigation documents generally.

    - Consider entering into stipulations regarding the format of RFPs and responses (Va. Sup. Ct. R. 4:4).

     
    Content Requirements:

    - The responding party must produce documents either as they are kept in the usual course of business or organized and labeled to correspond with the categories of the request (Va. Sup. Ct. R. 4:9(b)(iii)).

    - If the request does not specify the form for the production of ESI, the responding party must produce the ESI as it is ordinarily maintained if it is in a reasonably usable form or in another reasonably usable form (Va. Sup. Ct. R. 4:1(b)(7)-(8)).

     
    Objections:
    1. Nonexistence of the document:
      • The document was never created, lost, or destroyed.
      • If the document was lost or destroyed, describe the efforts made to find the document or the client's record retention policy.
      • No specific citation, but the responding party must make a diligent search for the requested document (Hirsch v. CSP Nova, LLC, 98 Va. Cir. 286, 287 n.3 (Cir. Ct. 2018)).
    2. Document not in possession, custody, or control:
    3. Beyond the scope of discovery:
      • Explain why the material requested is beyond the scope of discovery as defined by the rules.
      • Va. Sup. Ct. R. 4:1(b).
    4. Vague and not described with reasonable particularity:
    5. Privileged material:
     
    Serving the Response:

    - Service must be made on parties under Va. Sup. Ct. R. 1:12. Electronic service is governed by Va. Sup. Ct. R. 1:17.

     
    Protective Orders:

    - Counsel should confer with opposing counsel in an attempt to resolve the dispute without resorting to the courts (Va. Sup. Ct. R. 4:9(b), 4:1(b)(8)).

    - A responding party may move for a protective order from "annoyance, embarrassment, oppression, or undue burden or expense" (Va. Sup. Ct. R. 4:1(c)).

     
    Supplementing RFP Responses:

    - The responding party must supplement its response in certain circumstances, such as if the opponent serves a request for supplementation before trial, if a court order or stipulation of the parties requires it, or if the party obtains information that makes the response incorrect or no longer true (Va. Sup. Ct. R. 4:1(e)).

    - Failure to seasonably supplement a response may subject the responding party to sanctions (Va. Sup. Ct. R. 4:12).

    Rules:
    Relevance:
    Possession, Custody, or Control:
    Proportionality:
    • Discovery must be proportional to the needs of the case (Va. Sup. Ct. R. 4:1(b)(1))
    • Consider proportionality factors, including importance of issues, amount in controversy, parties' relative access to information, parties' resources, importance of discovery in resolving issues, and whether burden or expense outweighs benefit (Va. Sup. Ct. R. 4:1(b)(1))
    Timing:
    Requests:
    • Describe items to be inspected with reasonable particularity (Va. Sup. Ct. R. 4:1(b)(1), 4:9(b)(i))
    • Avoid overbroad requests that may draw objections based on relevance and proportionality
    Interrogatories
    • Responding
    • Propounding
    Who Responds

    Both the client and the attorney must be involved in the preparation of the written response to interrogatories and will sign the document. The person who answers interrogatories must sign the answers under oath, and the attorney who makes any objections must sign the objections (Va. Sup. Ct. R. 4:1(g), 4:8(d)).

    Available Information

    The party answering interrogatories is required to provide information that is "available" to the responding party (Va. Sup. Ct. R. 4:8(a)).

    Timing

    A party served with interrogatories generally must respond, in writing, within 21 days after service of the interrogatories (Va. Sup. Ct. R. 4:8(d)). One exception is that a defendant may serve answers and objections within 28 days after service of the bill of complaint or motion for judgment against that defendant (Va. Sup. Ct. R. 4:8(d)).

    Objections
    1. Interrogatories Exceed Numerical Limits: A party may object if the number of interrogatories served exceeds the allowed limit of 30 (Va. Sup. Ct. R. 4:8(g)).
    2. Relevance: A party may object if the information requested in the interrogatory is not relevant to the subject matter of the action (Va. Sup. Ct. R. 4:1(b), 4:8(e)).
    3. Privilege: A party may object if the information requested is privileged or protected work product (Va. Sup. Ct. R. 4:1(b)).
    4. Unavailable to Responding Party: A party may object if the information requested is not available to the responding party, including its officers and agents (Va. Sup. Ct. R. 4:8(a)).
    5. Unduly Burdensome: A party may object if the interrogatory imposes an unreasonable burden on the responding party (Va. Sup. Ct. R. 4:1(b)(1)).
    6. Call for Legal Conclusions: Although not automatically objectionable, a party may object if the interrogatory calls for pure legal conclusions unrelated to the facts of the case (Va. Sup. Ct. R. 4:8(g)).
    7. Poorly Drafted or Compound Interrogatories: A party may object if the interrogatory is too poorly drafted to be comprehensible or is impermissibly compound (U.S. v. Chapman University, 245 F.R.D. 646 (C.D. Cal. 2007)).
    8. Served After Discovery Cutoff Date: A party may object if the interrogatories were served after the discovery cutoff date set forth in a discovery or scheduling order (Va. Sup. Ct. R. 4:13; 1:18(a))
    Interrogatories Exceed Numerical Limits

    Absent a stipulation or court order providing otherwise, a party may serve no more than 30 interrogatories on any other party (Va. Sup. Ct. R. 4:8(g)).

    Relevance and Privilege

    Parties propounding interrogatories are entitled only to information that falls within the permissible scope of discovery (Va. Sup. Ct. R. 4:1(b), 4:8(e)).

    Unavailable to Responding Party

    A responding party may object to an interrogatory if it requests information that is not available to that party, including its officers and agents (Va. Sup. Ct. R. 4:8(a)).

    Unduly Burdensome

    A responding party may seek protection from unduly burdensome discovery requests (Va. Sup. Ct. R. 4:1(b)(1)).

    Call for Legal Conclusions

    An interrogatory is not objectionable merely because the answer "involves an opinion or contention that relates to fact or the application of law to fact" (Va. Sup. Ct. R. 4:8(g)).

    Comply with Format Requirements

    When answering each interrogatory, the party shall restate the interrogatory, insert the word "Answer," then provide the response (Va. Sup. Ct. R. 4:8(b)).

    Produce Business Records

    Under certain circumstances, Va. Sup. Ct. R. 4:8(f) authorizes a party to respond to an interrogatory by producing business records, or a compilation, summary, or abstract based on those records, instead of formulating a written answer.

    Responding

    Each interrogatory must be answered separately or fully in writing and under oath, unless it is objected to (Va. Sup. Ct. R. 4:8(d)).

    Sign Response

    The person who answers the interrogatories must sign the response, and if there are objections, the attorney who makes the objections must sign the objections (Va. Sup. Ct. R. 4:8(d)).

    Serve Response; Generally Do Not File

    The responding party must generally serve the answers and objections on the propounding party and on all other parties within 21 days after the interrogatories are served (Va. Sup. Ct. R. 4:8(d)).

    Court Intervention

    Before filing a discovery motion, counsel should confer with opposing counsel (in person or by telephone) in an attempt to resolve the dispute without a need to resort to the courts (Va. Sup. Ct. R. 4:8(g), 4:1(b)(8)).

    Supplementing Interrogatory Answers

    The responding party must supplement its response in certain circumstances (Va. Sup. Ct. R. 4:1(e)).

    Nature and Purpose of Interrogatories:

    Efficient and cost-effective method for gathering information concerning facts, evidence, and contentions (Va. Sup. Ct. R. 4:8(a))
    Directed only to parties, not nonparties (Va. Sup. Ct. R. 4:8(d))

    Permissible Scope of Interrogatories:

    Relate to any matter within the scope of discovery under Va. Sup. Ct. R. 4:1(b) (Va. Sup. Ct. R. 4:8(3))
    Relevant to any party's claim or defense, reasonably calculated to lead to the discovery of admissible evidence, and proportional to the needs of the case (Va. Sup. Ct. R. 4:1(b)(1))

    Fact and Contention Interrogatories:

    Contention interrogatories involve opinions or contentions related to fact or application of law to fact (Va. Sup. Ct. R. 4:8(e))
    Court may order contention interrogatories to be answered after designated discovery, pretrial conference, or other later time (Va. Sup. Ct. R. 4:8(e))

    Limitation on Number of Interrogatories:

    Maximum of 30 interrogatories, unless agreed upon by parties or ordered by the court (Va. Sup. Ct. R. 4:8(g))

    Timing for Response:

    21 days after service of interrogatories (Va. Sup. Ct. R. 4:8(d))
    Exception: defendant may serve answers and objections within 28 days after service of the bill of complaint or motion for judgment (Va. Sup. Ct. R. 4:8(d))

    Use of Interrogatory Answers:

    May be used as permitted under Virginia Rules of Evidence and Va. Sup. Ct. R. 3:20 (motions for summary judgment) (Va. Sup. Ct. R. 4:8(e))

    Format Requirements:

    Number each interrogatory separately and leave space between each (advisable)
    Comply with general format requirements for litigation documents under statewide and local rules

    Limitations:

    Only 30 interrogatories allowed unless stipulated or ordered by the court (Va. Sup. Ct. R. 4:8(g))
    Court may curb unduly burdensome discovery requests (Va. Sup. Ct. R. 4:1(c))

    General Drafting Standards:

    Evaluate whether definitions and instructions clarify complicated matters or further complicate the discovery process

    Preparing Contention Interrogatories:

    May be useful for narrowing issues and less burdensome than depositions (Cable & Computer Tech., Inc. v. Lockheed Saunders, 175 F.R.D. 646, 652 (C.D. Cal. 1997))
    Federal cases recognize two limits on contention interrogatories: usefulness after substantial discovery and excessive burden imposed by overly broad interrogatories

    Signature Requirement:

    At least one attorney of record must sign interrogatories propounded on behalf of a represented party in the attorney's individual name (Va. Sup. Ct. R. 4:1(g))
    Unrepresented parties must sign in their own name (Va. Sup. Ct. R. 4:1(g))

    Serving and Filing Interrogatories:

    Serve on the responding party and all counsel of record (Va. Sup. Ct. R. 1:12)
    Do not file interrogatories unless directed by the court or requested by any party (Va. Sup. Ct. R. 4:8(c)(1))

    Addressing Inadequate Response to Interrogatories:

    Attempt to resolve disagreements without involving the court
    If necessary, move to compel a response or for sanctions (Va. Sup. Ct. R. 4:8(d), 4:12(a), 4:12(b)(2), 4:12(d))

    Requesting Supplemental Answers:

    Duty to supplement responses in certain circumstances specified by statute (Va. Sup. Ct. R. 4:1(e))
    Duty to supplement may be imposed by the court, by agreement of the parties, or at any time before trial by requests from the propounding party for supplementation of responses (Va. Sup. Ct. R. 4:1(e)(3))

    Subpeonas
    • Responding
    • Propounding
    Overview:

    - In Virginia, the terms summons and subpoena can both be used for the forms that must be issued and served on a nonparty to compel testimony or production in discovery (Virginia Rules of Coourt).

    Required Content for Attorney-Issued Subpoenas:

    - Must be on a form approved by the Supreme Court

    - Must be signed by the attorney

    - Must include the attorney's address (Va. Code Ann. § 8.01-407(A))

    Required Content for Subpoenas Duces Tecum:

    - Designate the materials to be produced (Va. Sup. Ct. R. 4:5(b)(1))

    - Command the person to whom it is directed to produce the designated materials and to permit inspection, copying, testing, or sampling (Va. Sup. Ct. R. 4:9A(b))

    - Specify a time and place for production, inspection, etc. (Va. Sup. Ct. R. 4:9A(b))

    Service in Virginia:

    - Multiple methods of service for subpoenas within Virginia (Va. Code Ann. §§ 8.01-292, 8.01-296, 8.01-298)

    Service Outside Virginia:

    - Virginia does not have subpoena power over non-parties who do not reside in Virginia (Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, 443 (Va. 2015))

    No Undue Burden to Witness:

    - The party issuing the subpoena must take reasonable steps to avoid undue burden or expense on the person subject to a subpoena (Va. Sup. Ct. R. 4:1(c))

    Reasonable Time to Respond:

    - The party issuing the subpoena must give sufficient time to respond for due process (Va. Sup. Ct. R. 4:5(b)(1))

    Provision of Witness Fees:

    - The party that subpoenas a witness for a deposition must reimburse the witness for daily mileage and tolls (Va. Code Ann. §§ 2.2-2823, 17.1-612)

    Objections:

    1. Improper Service:

    • Object to a subpoena if it was not properly served according to the methods outlined in Virginia Code (Va. Code Ann. §§ 8.01-292, 8.01-296, 8.01-298)

    2. Insufficient Time to Respond:

    • Object to a subpoena if it does not provide sufficient time to respond, as required for due process (Va. Sup. Ct. R. 4:5(b)(1))

    3. Undue Burden or Expense:

    • Object to a subpoena if it imposes an undue burden or expense on the person subject to the subpoena (Va. Sup. Ct. R. 4:1(c))

    4. Improper Location for Testimony:

    • Object to a subpoena for testimony if it is not noticed in the proper location, as specified in Virginia Code and Supreme Court Rules (Va. Code Ann. § 8.01-420.4(B); Va. Sup. Ct. R. 4:5(a1))

    5. Privileged or Confidential Information:

    • Object to a subpoena if it seeks privileged or confidential information, such as attorney-client communications or trade secrets (Va. Sup. Ct. R. 4:1(b))

    6. Overly Broad or Irrelevant Requests:

    • Object to a subpoena if it requests information that is overly broad, irrelevant, or not reasonably calculated to lead to the discovery of admissible evidence (Va. Sup. Ct. R. 4:1(a))

    7. Violation of Privacy Rights:

    • Object to a subpoena if it seeks information that violates a person's privacy rights, such as medical records or personal financial information (Va. Sup. Ct. R. 4:1(c))

    8. Failure to Comply with the Uniform Interstate Deposition and Discovery Act:

    • Object to a foreign subpoena if it does not comply with the requirements of the Uniform Interstate Deposition and Discovery Act (Va. Code Ann. §§ 8.01-412.8 - 8.01-412.15)

    Moving for a Protective Order for the Witness:

    - Move to protect the person from annoyance, embarrassment, oppression, or undue burden or expense with a protective order under Va. Sup. Ct. R. 4:1(c)

    Conditional Denial of Subpoena:

    - If a subpoena is unduly burdensome or expensive, move the court to modify or conditionally deny any of the subpoena's terms (Va. Sup. Ct. R. 4:9A(c)(3))

    Foreign Subpoenas:

    - Virginia has adopted the Uniform Interstate Deposition and Discovery Act (Va. Code Ann. §§ 8.01-412.8 - 8.01-412.15)

    - Move to quash, modify, or apply for a protective order for subpoenas issued under this Act in the same manner and method as all other subpoenas (Va. Sup. Ct. R. 4:5(a1)(iv), 4:5(d))

    Overview:

    - A subpoena can compel someone to appear and testify, produce documents or ESI, or permit inspection of premises (Va. Sup. Ct. R. 4:5 and 4:9A).

    - Subpoenas can be used for depositions, hearings, or trials (Va. Sup. Ct. R. 4:5, Va. Code Ann. §§ 8.01-407(A), 16.1-89, and 16.1-265).

    Drafting a Subpoena:

    - An attorney-issued summons must be on a form approved by the Supreme Court, signed by the attorney, and include the attorney's address (Va. Code Ann. § 8.01-407(A)).

    - A subpoena duces tecum must designate the materials to be produced, command the person to produce the materials and permit inspection, and specify a time and place for production (Va. Sup. Ct. R. 4:5(b)(1) and 4:9A(b)).

    Identifying the Subject of a Subpoena:

    - A party may depose any person, including nonparties and entities such as corporations, partnerships, associations, or governmental agencies (Va. Sup. Ct. R. 4:5(a) and 4:5(b)(6)).

    - For deposition testimony, identify the topics with reasonable particularity (Va. Sup. Ct. R. 4:5(b)(6)).

    Minimizing the Burden on the Subpoenaed Witness:

    - Take reasonable steps to avoid undue burden or expense on a person subject to a subpoena (Va. Sup. Ct. R. 4:1(c)).

    - For nonparty depositions, the deposition may be taken only in the county or city where the nonparty witness resides, is employed, or has a principal place of business, or at a place agreed upon or designated by the court for good cause (Va. Code Ann. § 8.01-420.4(B); Va. Sup. Ct. R. 4:5(a1)).

    ESI Considerations:

    - A subpoena may specify the form or forms in which ESI is to be produced (Va. Sup. Ct. R. 4:9A(b)).

    - If not specified, the person responding must produce the materials in a form or forms in which the ESI is ordinarily maintained or in a reasonably usable form or forms (Va. Sup. Ct. R. 4:9A(c)).

    Deposition Subpoenas:

    - The clerk of court, officer taking the deposition, or attorney seeking the witness's attendance may issue a summons for attendance in a proceeding (Va. Code Ann. § 8.01-407(A)).

    Subpoenas Duces Tecum:

    - A subpoena duces tecum may be issued by the clerk of court or an attorney who is an active member of the Virginia State Bar (Va. Sup. Ct. R. 4:9A(a)).

    Service:

    - A summons can be served by delivering it to any sheriff in Virginia, delivering a copy in writing to the party in person, substituted service, mailing the summons in civil actions brought in a general district court or circuit court, or delivering a copy of the summons to the witness's usual place of business or employment during business hours (Va. Code Ann. §§ 8.01-292, 8.01-296, and 8.01-298).

    Service Outside Virginia:

    - Virginia does not have subpoena power over non-parties who do not reside in Virginia or over materials located outside Virginia in the possession or control of nonparties who are not Virginia residents (Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, 443 (Va. 2015)).

    Deadlines and Notices for Service:

    - A party desiring to take the deposition of any person upon oral examination must give reasonable notice in writing to every other party to the action (Va. Sup. Ct. R. 4:5(b)(1)).

    - A sheriff does not need to serve an attorney-issued subpoena that is issued less than five business days before attendance is desired (Va. Code Ann. § 8.01-407(A)).

    Deposition Witness Fees:

    - The party that subpoenas a witness for a deposition must reimburse the witness for daily mileage and tolls (Va. Code Ann. §§ 2.2-2823 and 17.1-612).

    Nonparty Noncompliance:

    - If a nonparty witness fails to comply with a subpoena, the party may move for an order compelling a nonparty to comply with a discovery subpoena in the court in the county or city where the deposition is being taken (Va. Sup. Ct. R. 4:12(a)(1)).

    - Failure to comply with an order to compel may result in contempt proceedings (Va. Sup. Ct. R. 4:12(b)(1)).

    Party Noncompliance:

    - If the noncompliant deponent is a party, additional remedies are available, such as taking matters as established, prohibiting certain claims or defenses, striking pleadings, or dismissing the case in favor of the deposing party (Va. Sup. Ct. R. 4:12(b)(2) and 4:12(d)).

    Appealing Subpoena-Related Rulings:

    - Discovery orders in suits brought in Virginia are interlocutory and not subject to immediate appeal but are subject to appellate review at the conclusion of the underlying suit (Am. Online v. Anonymous Publicly Traded Co., 542 S.E.2d 377, 382 (Va. 2001)).

    - The standard of review on a discovery order is abuse of discretion (O'Brian v. Langley Sch., 507 S.E.2d 363, 366 (Va. 1998)).

    Motions to Compel
    • Overview
    Meet and Confer:

    - All discovery motions must be accompanied by a certification of good faith efforts to resolve the dispute without court action (Va. Sup. Ct. R. 4:1(b)(8); Va. Sup. Ct. R. 4:15(b)).

    - The certification should detail the attempts made or the results of any conferences held between the parties (Va. Sup. Ct. R. 4:1(b)(8); Va. Sup. Ct. R. 4:15(b)).

    Grounds to Compel Discovery:

    - A party may move for an order compelling discovery if a deponent fails to answer a question, a corporation fails to designate a person to give deposition testimony, a party fails to answer an interrogatory, or a party fails to produce documents or permit inspection (Va. Sup. Ct. R. 4:12(a)(2)).

    - Incomplete or evasive answers are treated as a failure to respond (Va. Sup. Ct. R. 4:12(a)(3)).

    Sanctions for Failure to Obey Discovery Order:

    - The court may issue further just orders, such as directing that matters be taken as established, prohibiting the disobedient party from supporting or opposing designated claims, striking pleadings, staying proceedings, dismissing the action, or rendering a default judgment (Va. Sup. Ct. R. 4:12(b)(2)).

    - The court must order the disobedient party or attorney to pay reasonable expenses, including attorney's fees, unless the failure was substantially justified or other circumstances make an award unjust (Va. Sup. Ct. R. 4:12(b)).

    Sanctions for Failure to Provide Discovery:

    - The court may order sanctions for failing to appear for a deposition, failing to serve answers to interrogatories, or failing to serve a written response to a request for inspection (Va. Sup. Ct. R. 4:5(g), 4:12(a)(2)).

    - Sanctions may include orders directing that matters be taken as established, prohibiting the sanctioned party from supporting or opposing designated claims, striking pleadings, staying proceedings, dismissing the action, or rendering a default judgment (Va. Sup. Ct. R. 4:12(b)(2)).

    - The court must require the party failing to provide discovery or the attorney advising that party to pay reasonable expenses, including attorney's fees, unless the failure was substantially justified or other circumstances make an award unjust (Va. Sup. Ct. R. 4:12(a)(4)).

    Sanctions for Failure to Make Admissions:

    - If a party fails to make a requested admission and the requesting party later proves the matter true, the requesting party may move for the failing party to pay reasonable expenses, including attorney's fees, incurred in making that proof (Va. Sup. Ct. R. 4:12(c)).

    - The court must grant the motion unless the request was held objectionable, the admission sought was of no substantial importance, the failing party had a reasonable ground to believe they might prevail on the matter, or there were other good reasons for the failure to admit (Va. Sup. Ct. R. 4:12(c)).

    Washington Discovery Cheat Sheet

    • Requests for Admission
    • Requests for Production
    • Interrogatories
    • Subpoenas
    Requests for Admission
    • Responding
    • Propounding
    1. Timing:
    • Respond within 30 days after service of the requests for admission (Wash. CR 36(a))
    • Defendant cannot be required to respond until at least 40 days after the complaint and summons have been served (Wash. CR 36(a))
    • Extension of time to respond can be granted by the court (Wash. CR 36(a))
    2. Responding:
    • Answer Request: Admit, Deny, or Explain (Wash. CR 36(a))
    • Object to Request: Improper format, untimely request, excessive number of requests, undue burden, improper subject, request outside scope of discovery, or failure to provide document (Wash. CR 36(a))
    • Seek a Protective Order (Wash. CR 26(c))
    Objections:
    1. Improper format of request
      An objection may be based on the request's noncompliance with format requirements, such as the requirement that each matter on which an admission is requested be set forth separately. See Wash. CR 36(a).
    2. Untimely request
      An objection may be based on the propounding party's service of the requests in violation of the applicable time constraints, such as discovery cut-off dates established by local rules or by court order. See generally Wash. CR 26(d), 36(a).
    3. Excessive number of requests
      An objection may be made to requests that exceed any applicable limit on the number of requests for admission set out by the court or by local rules. See Wash. CR 26(b)(1), (f); see, e.g., Wash. King Super. Ct. LCR 26(b)(4) (limiting number of requests for admissions in case subject to case schedule).
    4. Undue burden
      Undue burden may provide a ground for objection. Requests that are repetitive, voluminous, convoluted, vague, or ambiguous, or that otherwise require extensive analysis or explanation, may potentially be objectionable. See Wash. CR 26(b)(1), (c); see also Fed. R. Civ. P. 36(a), Committee Note of 1970. In appropriate cases, in lieu of objecting to an unduly burdensome set of requests for admission, consider moving for a protective order. See Wash. CR 26(c).
    5. Improper subject of request
      Requests for admission are limited to statements or opinions of fact or the application of law to fact, including the genuineness of documents. Wash. CR 36(a). A request that seeks an admission on other matters, for example, the propounding party's subjective state of mind or legal conclusions, is objectionable. See Brust v. Newton, 70 Wn. App. 286, 70 Wash. App. 286, 852 P.2d 1092 (Wash. Ct. App. 1993).
    6. Request outside scope of discovery or seeks privileged matter
      Requests for admission are limited to matters within the permissible scope of discovery. Wash. CR 36(a). Thus, the responding party may validly object to a request to admit a matter that is irrelevant to the claims and defenses asserted in the case. See Wash. CR 26(b); In re Disciplinary Proc. Against Sanai, 167 Wn.2d 740, 753–54, 225 P.3d 203 (2009). Likewise, the responding party may properly object to a request pertaining to a matter that is privileged (see Wash. CR 26(b)(1)), such as matters within the attorney-client privilege or the privilege against self-incrimination. See United States v. One Tract of Real Prop., 95 F.3d 422, 428 n.10 (6th Cir. 1996).
    7. Failure to provide document
      An objection may be based on the propounding party's failure to serve a document whose genuineness is the subject of the request if the document has not already been produced or is not otherwise available to the responding party. See Wash. CR 36(a).
    3. Drafting, Service, and Filing of Responses:
    • Response must be in writing and signed by the attorney or party (Wash. CR 26(g))
    • Serve response on the propounding party before the deadline (Wash. CR 5(a), 36(a))
    • Responses not to be filed until used in a proceeding or trial, or if the court orders filing (Wash. CR 5(i))
    4. Supplementation:
    • Duty to seasonably amend a prior response if the response was incorrect when made or is now untrue (Wash. CR 26(e)(2))
    • Duty to supplement or amend a prior response if ordered by the court, agreed to by the parties, or in response to a request for supplementation (Wash. CR 26(e)(3))
    5. Motion for Withdrawal or Amendment of Admission:
    • Court may allow withdrawal or amendment of an admission if presentation of the merits will be subserved and the propounding party will not be prejudiced (Wash. CR 36(b))
    • Moving party has the burden of convincing the court that allowing the amendment or withdrawal will "subserve" the presentation of the merits (Wash. CR 36(b))
    • Propounding party has the burden of convincing the court that it will be prejudiced if the amendment or withdrawal is allowed (Wash. CR 36(b))
    1. Overview
    2. Determining Proper Subjects of Requests for Admission
    3. Determining Timing of Request
    4. Drafting Requests for Admission
    5. Serving and Filing Requests for Admission
    6. Motion to Determine Sufficiency of Responses
    • File motion if dissatisfied with responses (Wash. CR 36(a))
    • Confer in good faith with opposing counsel before bringing the motion (Wash. CR 26(i))
    • Court may order the responding party to serve an answer or deem the matter admitted (Wash. CR 36(a))
    7. Motion for Order Requesting Reasonable Expenses of Proving Unadmitted Matter at Trial
    Requests for Production
    • Responding
    • Propounding
    1. Possession, Custody, or Control (Wash. CR 34(a)(1))

    - Produce documents or things in possession, custody, or control.

    - Control is the legal right to obtain the documentation or permission to enter on demand (Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 78, 265 P.3d 956 (2011)).

    2. Adequate Search for Requested Discovery Items

    - Make a "reasonable inquiry" to acquire information or documentation (Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn. 2d 299, 343, 858 P.2d 1054 (1993)).

    3. Objections

    a. Request exceeds the proper scope of discovery or seeks privileged material (Wash. CR 26(b), 34(a))

    b. Request is repetitious or cumulative, imposes undue burden or expense, or is unreasonably annoying, oppressive, or embarrassing (Wash. CR 26(b)(1), (c))

    c. Request does not comply with the requirements of CR 34

    4. Preparing Written Response (Wash. CR 34(b)(3)(A), (B))

    - Answer or object to each item or category of items requested.

    - Serve written response within 30 days after the service of the request, or within 40 days for a defendant served at the outset of litigation (Wash. CR 34(b)(3)(A)).

    5. Contents of Response (Wash. CR 34(b)(3)(B))

    - Address each item or category of items in the request.

    - State objections and provide reasons for the objection.

    6. Signature and Service (Wash. CR 26(g))

    - Sign the written response and serve it on counsel for all other parties (or directly on any unrepresented parties).

    7. Protective Orders (Wash. CR 37(a))

    - Move for a protective order if the responding party does not agree with the scope of the request or does not want to respond to a request.

    8. Production of Documents and Other Tangible Items (Wash. CR 34(b)(3)(F)(i))

    - Produce documents and other items as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.

    9. Production of ESI (Wash. CR 34(b)(2)(C), (b)(3)(F)(ii), (iii))

    - Produce ESI in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

    10. Supplement Response as Required (Wash. CR 26(e))
    1. Purpose of Request for Production
    • Allows a party to request another party to produce documents, data, and other tangible items of evidence for inspection, copying, testing, and other purposes (Wash. CR 34(a)(1))
    • Allows a party to request entry on another party's land to inspect the property and for other specified purposes (Wash. CR 34(a)(2))
    2. Permissible Objects of Rule 34 Requests
    • Requesting party may request production of documents and electronically stored information (Wash. CR 34(a)(1))
    • Requesting party may request production of "things" (Wash. CR 34(a)(1))
    • Requesting party may seek entry on land or other property for inspection (Wash. CR 34(a)(2))
    3. Response Requirements
    4. Timing
    • Requests for production may be served on the plaintiff at any time after the summons and complaint have been served on the defendant, or the complaint has been filed, whichever occurs first (Wash. CR 34(b)(1))
    5. Content of Request
    • Request for production must describe the documents or other items to be produced with reasonable particularity (Wash. CR 34(b)(2)(A))
    • Request must also specify a "reasonable" time, place, and manner for the production and related activities (Wash. CR 34(b)(2)(B))
    6. Electronic Discovery Considerations
    • Wash. CR 34 permits a party to request production of ESI from another party (Wash. CR 34(a)(1))
    • Requesting party may specify the form or forms in which ESI is to be produced (Wash. CR 34(b)(2)(C))
    7. Evidence Destruction
    • Take appropriate steps to ensure preservation of evidence, such as sending notices to clients and/or opposing parties as soon as it becomes apparent that a claim or lawsuit is likely
    8. Drafting
    • Clearly identify the documents or things to be produced or the property and any operations to be inspected (Wash. CR 34(b)(2)(A))
    • Describe every designated item or category with "reasonable particularity" (Wash. CR 34(b)(2)(A))
    9. Format Requirements
    • Check local rules for any format requirements
    10. Sign Request
    • The request must be signed by at least one attorney of record individually or by an unrepresented party (Wash. CR 26(g))

    Remember to always include the actual timing for the response and any other specific details required by the Washington State Civil Procedure rules.

    Interrogatories
    • Responding
    • Propounding
    Overview

    • Both the client and attorney must be involved in the preparation of the written response to interrogatories and will sign the document (Wash. CR 33(a)).
    • If the party is an individual, the individual party will normally sign and verify the answers to the interrogatories. If the party is an entity, any agent or officer of the party may answer interrogatories (Wash. CR 33(a)).
    • In Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 265 P.3d 956 (2011), a corporation could not exercise a privilege against self-incrimination to avoid providing answers to interrogatories that were propounded to the corporation.

    Available Information

    • The party answering interrogatories is required only to provide "available" information, not to undertake the propounding party's research (Wash. CR 33(a)).
    • When an interrogatory is directed to a corporation, available information means all information available to the corporation's officers, directors, employees, and attorneys (Diaz v. Wash. State Migrant Council, 165 Wn. App. 59, 80, 265 P.3d 956 (2011)).

    Timing

    • A party served with interrogatories generally must respond, in writing, within 30 days after service of the interrogatories. However, a defendant served with interrogatories need not respond until 40 days after the service of the complaint and summons on that defendant (Wash. CR 33(a)).
    • The parties may alter this deadline by stipulation (Wash. CR 29).

    Objections
    Exceed Permissible Scope of Discovery: Relevance and Privilege

    • Parties propounding interrogatories are entitled only to information that falls within the permissible scope of discovery (Wash. CR 26(b)(1), 33(b)).
    • Examples: Senear v. Daily J. Am., 27 Wn. App. 454, 473, 618 P.2d 536 (1980) (qualified privilege existed limiting right to compel interrogatory answers concerning news media's source).

    Information Unavailable to Responding Party

    • A party may object to an interrogatory if it requests information that is not available to that party, including its officers and agents (Wash. CR 33(a)).

    Interrogatories Are Unduly Burdensome

    • A responding party may seek protection from unduly burdensome discovery requests (Wash. CR 26(b), (c)).
    • Example: Wash. State Physicians Ins. Exch. & Assn. v. Fisons Corp., 122 Wn.2d 299, 353–54, 858 P.2d 1054 (1993) (party who does not agree with the scope of a discovery request or does not want to respond must move for a protective order).

    Call for Legal Conclusions

    • An interrogatory that calls for a legal conclusion that extends to legal issues unrelated to the facts of the case is objectionable (Thomas v. Cate, 715 F. Supp. 2d 1012, 1029–30 (E.D. Cal. 2010)).
    Violation of Local Rules

    • Objections may be based on violations of local rules regarding the number, format, or timing of interrogatories.
    • Example: United States ex. rel. Connell v. Chapman Univ., 245 F.R.D. 646, 649 (C.D. Cal. 2007) (compound interrogatory).

    Ambiguity or Impermissibly Compound

    • The responding party may object if the interrogatories are too poorly drafted to be comprehensible or are impermissibly compound (United States ex. rel. Connell v. Chapman Univ., 245 F.R.D. 646, 649 (C.D. Cal. 2007)).
    • Example: Johnson v. Mermis, 91 Wn. App. 127, 134, 955 P.2d 826 (1998) (if complaining of ambiguity, responding party must indicate how question is ambiguous).

    Format Requirements

    • The propounding party must leave a reasonably-sized blank space for the responding party to enter its answers (Wash. CR 33(a)).
    • If the responding party chooses to respond on a separate page, the responding party must "clearly denote the number of the question to which the response relates, including the subpart thereof if applicable" (Wash. CR 33(a)).

    Produce Business Records

    • Under certain circumstances, Wash. CR 33 authorizes a party to respond to an interrogatory by producing business records, including electronically stored information, or a compilation, summary, or abstract based on those records, instead of formulating a written answer (Wash. CR 33(c); Lang v. Dental Quality Assurance Comm'n, 138 Wn. App. 235, 254, 156 P.3d 919 (2007)).

    Responding

    • Each interrogatory must be answered separately or fully in writing and under oath, unless it is objected to (Wash. CR 33(a)).
    • If there are objections, the reasons for those objections must be stated in the response in lieu of the answer (Wash. CR 33(a)).

    Boilerplate Language

    • "Boilerplate" objections are unacceptable. The objection should indicate how a question is ambiguous or irrelevant (Johnson v. Mermis, 91 Wn. App. 127, 134, 955 P.2d 826 (1998)).

    Sign Response

    • The person who answers interrogatories must sign the response. If there are objections, the attorney who makes the objections must sign the objections (Wash. CR 33(a)).
    • Interrogatories must be answered under oath (Wash. CR 33(a)).

    Court Intervention

    • Before filing a discovery motion, counsel must comply with the requirements of Wash. CR 26(i) by conferring with opposing counsel in an attempt to resolve the dispute without resorting to the courts (Wash. CR 26(i)).

    Supplementing Interrogatory Answers

    • The responding party must supplement answers as required by a court order or stipulation of the parties, or if the propounding party makes a request for supplementation of prior responses (Wash. CR 26(e)(1)–(3)).

    Overview

    - Interrogatories are written questions served on another party in a civil action (Wash. CR 33(a))
    - They are used to gather information about the facts of the case, available evidence, and another party's contentions
    - Interrogatories cannot be directed to nonparties (Wash. CR 33(a))

    Scope

    - Interrogatories can relate to any matter within the scope of discovery under Wash. CR 26(b)
    - They can be used to obtain relevant, nonprivileged information (Wash. CR 26(b)(1); Bushman v. New Holland Div. of Sperry Rand Corp., 83 Wn.2d 429, 433–34, 518 P.2d 1078 (1974))
    - Courts may limit the use of interrogatories if they are abusive, duplicative, or unduly burdensome (Wash. CR 26(b)(1), (c))

    Use of Interrogatory Answers

    - Answers to interrogatories may be used at trial, subject to the Rules of Evidence (Wash. CR 33(b); In re Marriage of Farmer, 172 Wash. 2d 616, 259 P.3d 256, 172 Wn. 2d 616 (Wash. 2011))
    - Interrogatory answers are not conclusive against the responding party but can be challenged (Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir. 1968))

    Timing

    - Interrogatories may be served on the plaintiff after the complaint is filed or the plaintiff serves the summons and a copy of the complaint on the defendant, whichever occurs earlier (Wash. CR 33(a))
    - Interrogatories may be served on any other party with or after the service of summons and a copy of the complaint on that party (Wash. CR 33(a))
    - Leave of court is necessary for earlier service (Wash. CR 33(a))

    Format Requirements

    - Interrogatories must be arranged so that a blank space appears after every question, with space for the answering party to insert a written response (Wash. CR 33(a))

    Limitations

    - Wash. CR 33 does not limit the number of interrogatories that may be served, but local rules may impose limitations (e.g., Wash. King Super. Ct. LCR 26(b)(2); Wash. CRLJ 26(b))

    Fact Interrogatories

    - Fact or identification interrogatories seek strictly factual information (Wash. CR 26(b)(1), 33(a))

    Contention Interrogatories

    - Contention interrogatories involve mixed questions of fact and law (Wash. CR 33(b))
    - Courts may limit the use of contention interrogatories if they are served too early in the proceeding or impose excessive burden (Wash. CR 33(b); In re Convergent Techs. Secs. Litig., 108 F.R.D. 328, 332–36 (N.D. Cal. 1985))

    Inadequate Response

    - If efforts to resolve disputes over interrogatory responses fail, consider moving to compel a response (Wash. CR 33(a), 37(a))
    - In appropriate cases, the propounding party may also move for sanctions (Wash. CR 26(g); Wash. CR 37(b), (d))

    Supplemental Answers

    - A party may have a duty to supplement their interrogatory responses in certain circumstances (Wash. CR 26(e)(1), (2), (3))

    Subpeonas
    • Overview
    1. Overview

    - A subpoena is a formal written order commanding a person to attend a hearing or deposition, produce documents, allow inspection of premises, or a combination of these actions (Wash. CR 45(a), (d)-(f), (h)).

    - Failure to obey a properly issued and served subpoena may result in contempt of court (Wash. CR 45(g)).

    2. Subpoena Directed to Washington Resident

    - A subpoena may require a Washington resident to attend a deposition, produce documents, or permit inspection (Wash. CR 30(a), 45(e)(2)).

    - The subpoena generally requires attendance, production, or inspection in the county where the person resides, is employed, or transacts business (Wash. CR 45(e)(2)).

    3. Subpoena Directed to Nonresident

    - A subpoena may require a nonresident to attend a deposition, produce documents, or permit inspection in the county where the person is served within 40 miles from the place of service (Wash. CR 30(a), 45(e)(2)).

    - Service of a Washington subpoena on a nonresident must be accomplished within Washington (Young v. Key Pharms., 63 Wn. App. 427, 432, 819 P.2d 814 (1991)).

    4. Subpoena Directed to Corporation or Other Organization

    - A subpoena may be directed to a corporation, partnership, association, or government agency, which will then designate one or more individuals to testify on its behalf (Wash. CR 30(b)(6), 31(a)).

    5. Timing for Deposition and Necessity for Leave of Court

    - No party may take a deposition until after the summons and a copy of the complaint have been served or the complaint has been filed (Wash. CR 30(a), 31(a)).

    - The plaintiff may not take any deposition on oral examination until the expiration of 30 days after service of the summons and complaint on any defendant (Wash. CR 30(a)).

    6. Determine Whether to Seek Production of Documents or Things, or Inspection of Premises

    - A subpoena may command the person to produce designated books, documents, or tangible things in that person's possession, custody, or control, or to permit inspection of premises (Wash. CR 45(a)(1)(C)).

    7. Consider Burden Imposed on Witness

    - A party or attorney responsible for the issuance and service of a subpoena must take reasonable steps to avoid imposing an undue burden or expense on the person subject to the subpoena (Wash. CR 45(c)(1)).

    8. Drafting the Subpoena

    - A subpoena should be substantially in the form specified by Wash. CR 45.

    9. Issuance by Attorney

    - An attorney of record for a party may issue and sign a subpoena (Wash. CR 45(a)(4)).

    10. Manner of Service

    - A subpoena may be served by giving a copy of it to the person named in the subpoena or by leaving a copy at the person's dwelling house or usual place of abode (Wash. CR 45(b)(1)).

    11. Timing for Service

    - If the subpoena is for a deposition, it must be served on the deponent at least five days before the deposition (Wash. CR 30(b)(1)).

    12. Witness Fees and Allowances

    - The person to whom the subpoena is directed is entitled to receive a witness fee for one day's attendance, plus an allowance for mileage (Rev. Code Wash. § 2.40.020; Wash. CR 45(e)(1)).

    13. Proof of Service

    - If the subpoena is served by any person other than an officer authorized to serve process, proof of service must be made by affidavit or declaration under penalty of perjury (Wash. CR 45(b)(1)).

    14. Objections
    • a. Insufficient time for compliance: A subpoena may be quashed or modified if it fails to allow reasonable time for compliance (Wash. CR 45(c)(3)(A)(i)).
    • b. Improper location for deposition, production, or inspection: A subpoena may be quashed or modified if it fails to comply with requirements limiting the place of the deposition (Rev. Code Wash. § 5.56.010; Wash. CR 45(e)(2)).
    • c. Privileged or protected information: A subpoena may be quashed or modified if it requires disclosure of privileged or other protected matter and no exception or waiver applies (Wash. CR 45(c)(3)(A)(iii)).
    • d. Undue burden: A subpoena may be quashed or modified if it subjects a person to undue burden (Wash. CR 45(c)(3)(A)(iv)).
    • e. Trade secrets or confidential information: The court may quash or modify a subpoena to protect a person subject to or affected by the subpoena if it requires disclosure of a trade secret or other confidential research, development, or commercial information (Wash. CR 45(c)(3)(B)(i)).
    • f. Unretained expert's opinion: The court may quash or modify a subpoena if it requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party (Wash. CR 45(c)(3)(B)(ii)).
    • g. Infringement of First Amendment rights: The court may quash a subpoena that would infringe on the subpoenaed person's First Amendment rights (Eugster v. City of Spokane, 121 Wn. App. 799, 807, 91 P.3d 117 (2004); Thomson v. Doe, 189 Wn. App. 45, 49–60, 356 P.3d 727 (2015)).
      15. Obtaining Discovery Outside Washington

    - If the place of examination, production, or inspection is in another state, territory, or country, the party desiring to take the deposition, obtain production, or conduct inspection may secure the issuance of a subpoena or equivalent process in accordance with the laws of that state, territory, or country (Wash. CR 45(e)(3)).

    How Briefpoint Can Help You

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