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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 afte