Scope:

• Documents and electronically stored information (ESI) - Cal. Code Civ. Proc. § 2031.010(a)–(b), (e)
• Tangible things - Cal. Code Civ. Proc. § 2031.010(a)–(c)
• Land or other property - Cal. Code Civ. Proc. § 2031.010(a), (d)
• Subject to limitations of discovery - Cal. Code Civ. Proc. § 2031.010(a); Cal. Code Civ. Proc. § 2017.010

Scope of Documents:

• Broad interpretation - Cal. Code Civ. Proc. §§ 2016.020(c), 2031.010(a); Cal. Evid. Code § 250
• Includes audio recordings, photographs, films, and written or recorded analyses of physical evidence - Coito v. Superior Ct., 54 Cal. 4th 480, 488 (2012); Ignat v. Yum! Brands, Inc., 214 Cal. App. 4th 808, 810 n.1 (2013); Cassel v. Superior Ct., 51 Cal. 4th 113, 125 (2011)

Included in ESI:

• Information stored in a medium with electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities - Cal. Code Civ. Proc. § 2016.020(d)–(e)

Possession, Custody, or Control:

• Requires production of documents in actual possession, legal right to obtain from a third party, or possessed by a subsidiary that the parent corporation owns or controls - Roche v. Hyde 51 Cal. App. 5th 757, 814 (2020)
• Burden on requesting party to demonstrate possession, custody, or control - Cal. Code Civ. Proc. § 2031.310

Deadline to Respond:

• 30 days of service, with extensions for non-personal service - Cal. Code Civ. Proc. § 2031.260(a); Cal. Code Civ. Proc. §§ 1010.6, 1013, 2016.050
• Modification of deadline through court order or stipulation of parties - Cal. Code Civ. Proc. §§ 2031.260(a), 2031.270(a)

Effect of Failure to Timely Respond:

• Waiver of objections unless relief granted by court - Cal. Code Civ. Proc. § 2031.300(a)–(c)
• Monetary sanctions if motion to compel filed - Cal. Code Civ. Proc. § 2031.300(d)

Format and Content of Responses:

• Numbering, response to each request, and objections - Cal. Code Civ. Proc. § 2031.210(c); Cal. Code Civ. Proc. §§ 2031.060, 2031.210(a), 2031.220–2031.240
• Verification and signature - Cal. Code Civ. Proc. § 2031.250(a), (c)

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:
   • Attorney-client privilege (Cal. Evid. Code §§ 950–962)
   • Confidential marital communications (Cal. Evid. Code §§ 980–987)
   • Government privileges (Cal. Evid. Code §§ 1040–1047)
   • Physician-patient privilege (Cal. Evid. Code §§ 990–1007)
   • Psychotherapist-patient privilege (Cal. Evid. Code §§ 1010–1028)
   • Counselor- or caseworker-victim privilege (Cal. Evid. Code §§ 1035–1038.2)
   • Trade secrets privilege (Cal. Evid. Code §§ 1060–1063)
   • Privilege against self-incrimination (Cal. Evid. Code § 940)
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:

• Serve on parties, not filed - Cal. Code Civ. Proc. § 2031.260(a); Cal. Rules of Ct., Rule 3.250(a)(9)
• Copies served within 30 days of service - Cal. Code Civ. Proc. §§ 1013a, 1013b, 2031.260(c)

Production:

• Identify specific request number for each document or category - Cal. Code Civ. Proc. § 2031.280(a)
• Produce ESI in specified format or reasonably usable form - Cal. Code Civ. Proc. § 2031.280(c), (d)
• Translate data compilations at demanding party's expense - Cal. Code Civ. Proc. § 2031.280(e)

Privilege Log:

• Provide sufficient information for a ruling on the privilege - Cal. Code Civ. Proc. § 2031.240(c)

Motion for Protective Order:

• Limit scope, extend deadline, change place of production, set terms or conditions, prevent or circumscribe production of confidential information, order in camera review - Cal. Code Civ. Proc. § 2031.060(b)(1)(6)
• Monetary sanctions if unsuccessful without substantial justification - Cal. Code Civ. Proc. §§ 2017.020(b), 2031.060(h)

Deadline to Respond:

• Respond within 30 days of service (Cal. Code Civ. Proc. § 2030.260(a))
• Extensions for non-personal service:
  • 2 court days for electronic or overnight delivery
  • 5 calendar days for mail within California
  • 10 calendar days for mail from/to an address outside California
  • 20 calendar days for mail from/to an address outside the United States (Cal. Code Civ. Proc. §§ 1010.6, 1013, 2016.050)

Modification of Deadline:

• Deadline can be shortened or lengthened by court order or stipulation (Cal. Code Civ. Proc. §§ 2030.260(a), 2030.270)
• Stipulation must be in writing and specify the new deadline (Cal. Code Civ. Proc. § 2030.270(b))

Effect of Failure to Timely Respond:

• Waiver of objections and right to produce writings in lieu of a narrative response (Cal. Code Civ. Proc. § 2030.290(a))

Duty to Provide Information:

• Provide all information reasonably available (Cal. Code Civ. Proc. § 2030.220(a), (c))
• Answer to the extent possible if the interrogatory cannot be answered completely (Cal. Code Civ. Proc. § 2030.220(b); § 2030.240(a))

Format and Content of Responses:

• Number each response to correlate to the number of the interrogatory (Cal. Code Civ. Proc. § 2030.210(c))
• Answer options include answering without objection, objecting with or without an answer, stating lack of personal knowledge, identifying documents containing the requested information, or seeking a protective order (Cal. Code Civ. Proc. §§ 2030.210-2030.240)

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:

• Responses must be signed under oath by the party and, if objections are included, by the party's attorney (Cal. Code Civ. Proc. § 2030.250(a), (c))

Service of Response:

• Serve responses on all parties within 30 days of service, along with proof of service (Cal. Code Civ. Proc. §§ 1013a, 1013b, 2030.260(c))
• Responses are not filed with the court unless relevant to a motion or hearing (Cal. Code Civ. Proc. § 2030.260; Cal. Rules of Ct., Rule 3.250(a)(8))

Amended or Supplemental Answer:

• Serve amended or supplemental answer if the prior answer is incorrect or incomplete (Cal. Code Civ. Proc. § 2030.310(a))

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)).

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).

Applicable Rules:

• Governed by C.R.C.P. 33 and subject to limitations of C.R.C.P. 26(b)(1)
• Served upon parties only (C.R.C.P. 33(a))
• Seek any information, not privileged, relevant to any claim or defense, and proportional to the needs of the case (C.R.C.P. 26(b)(1); C.R.C.P. 33(c))

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

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

1. Timing/Deadlines:

• Respond within 60 days of certification of service of the RFPs or as allowed by the court (Conn. Practice Book § 13-10(a))
• Deadline may be altered by stipulation or court order (Conn. Practice Book § 13-10(a)(1), (2))
• File objections within the 60-day response period (Conn. Practice Book § 13-10(a)(3), (e), (f))

2. Scope:

• Must be material to the subject matter of the action (Conn. Practice Book § 13-2)
• Cannot request privileged or protected work product materials (Conn. Practice Book § 13-2, 13-3(a))
• Must be within responding party's possession, custody, or control (Conn. Practice Book § 13-9(a))

3. Limitations:

• Overly general or insufficiently clear or specific RFPs may be objected to (Conn. Practice Book § 13-10(d))
• Unduly burdensome or expensive requests may be objected to (Conn. Practice Book § 13-5)
• Destructive testing requires court discretion.

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.

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)

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)).

• Overly broad or not reasonably calculated to lead to the discovery of admissible evidence: If an interrogatory seeks information that is too general or not directly related to the claims and defenses, it may be objectionable (Roberts-Douglas v. Meares, 624 A.2d 405, 415 (D.C. 1992); D.C. Super. Ct. Civ. R. 26(b)(1)).
• Privileged information: If the interrogatory seeks information protected by attorney-client privilege, work product doctrine, or other recognized privileges, it may be objectionable (D.C. Super. Ct. Civ. R. 26(b)(1)).
• Vague, ambiguous, or unintelligible: If an interrogatory is unclear or impossible to understand, it may be objectionable (Roberts-Douglas v. Meares, 624 A.2d 405, 415 (D.C. 1992); D.C. Super. Ct. Civ. R. 26(b)(1)).
• Unduly burdensome or oppressive: If the interrogatory imposes an excessive burden on the responding party, it may be objectionable (D.C. Super. Ct. Civ. R. 26(c)(1)).
• Violates a protective order: If the interrogatory seeks information or documents protected by a court-imposed protective order, it may be objectionable (D.C. Super. Ct. Civ. R. 26(c)(1)).
• Outside the responding party's possession, custody, or control: If the interrogatory seeks information or documents that the responding party does not have access to or control over, it may be objectionable (D.C. Super. Ct. Civ. R. 26(b)(1)).
• Publicly available information or documents: If the interrogatory seeks information or documents that are readily accessible to the public, it may be objectionable (D.C. Super. Ct. Civ. R. 26(b)(1)).

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)).

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

• Document requests may be delivered as early as 21 days after the summons and complaint are served (Fed. R. Civ. P. 26(d)(2)(A))
• Responses due within 30 days of the date the requests were served (Fed. R. Civ. P. 34(b)(2)(A))
• Additional 3 days added if requests were served by mail or other means specified in Rule 6(d) (Fed. R. Civ. P. 6(d))
• No time limit to bring a motion to compel, but it should be filed within a reasonable time (Fed. R. Civ. P. 37(a)(3)(B)(iii))

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

• Duty to preserve all evidence, including ESI, relevant to any present or future litigation (John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216–218 (S.D.N.Y. 2003))

Deadlines

• Responses due within 30 days after service of the request (Fed. R. Civ. P. 34(b)(2)(A))
• Additional 3 days added if requests were served by mail or other means specified in Rule 6(d) (Fed. R. Civ. P. 6(d))

Format and Content

• Responses should be organized and labeled to correspond to the categories of the request (Fed. R. Civ. P. 34(b)(2)(e)(i))
• Responses must be signed by the attorney or the party if unrepresented (Fed. R. Civ. P. 26(g)(1))

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

• Documents are typically stamped or labeled with a sequential letter and numeric designation known as a "Bates stamp" or "document control number" (Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1139–40 (9th Cir. 2003))

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

• Responding party bears the expense of complying with discovery requests, including gathering responsive documents and making them available for inspection (Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978))

Duty to Supplement or Correct Responses

• Party must supplement or correct its response in a timely manner if it learns that the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing (Fed. R. Civ. P. 26(e)(1)(A))
• Duty to supplement continues even after the discovery period has closed (Star Direct Telecom, Inc. v. Glob. Crossing Bandwidth, Inc., 272 F.R.D. 350, 358 (W.D.N.Y. 2011))

- 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))

Entities

• Depose any entity (Fed. R. Civ. P. 30(b)(6))
• Entity must produce knowledgeable person to testify (Fed. R. Civ. P. 30(b)(6))

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

• Relevance: You can object to a subpoena if the requested materials are not relevant to the case (Fed. R. Civ. P. 26(b)(1)).
• Overly Broad or Unduly Burdensome: If the subpoena seeks an excessive amount of information or imposes an undue burden or expense on your client, you can object on these grounds (Fed. R. Civ. P. 45(d)(1)). In Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139 (D.D.C. 2007), the court considered factors such as the specificity of the discovery request, the quantity of information available from more easily accessed sources, and the importance of the issues at stake in the litigation.
• Privileged or Protected Information: The subpoena may request information that is privileged or subject to protection as trial preparation material (Fed. R. Civ. P. 45(e)(2)(A)). The burden of establishing the privilege applies falls on the party responding to the subpoena (In re Subpoena Duces Tecum, 439 F.3d 740, 751 (D.C. Cir. 2006)).
• Geographical Limitations: Rule 45 imposes geographical limitations on subpoenas (Fed. R. Civ. P. 45(c)). If the subpoena requires your client to comply beyond these limits, you can object on this basis.
• Insufficient Time to Comply: A subpoena must allow a reasonable time for compliance (Fed. R. Civ. P. 45(d)(3)(A)(i)). If the subpoena fails to provide enough time, you can object on the grounds of insufficient notice.
• Electronically Stored Information: If the subpoena requests electronically stored information that is not reasonably accessible due to undue burden or cost, you can object under Rule 45(e)(1)(D). The burden of showing inaccessibility falls on the responding party. In Auto Club Family Insurance Company v. Ahner, CIVIL ACTION NO: 05-5723, SECTION: "J" (2) (E.D. La. Aug. 31, 2007), the court emphasized the need for actual evidence of inaccessibility due to undue burden or cost.

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. 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))

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

• - Interrogatories exceed the number authorized (Fla. R. Civ. P. 1.340(a)).
• - Interrogatories not in supreme court approved form (Fla. R. Civ. P. 1.340(a); Fla. R. Civ. P. Form 1.976).
• - Interrogatory subjects party to annoyance, embarrassment, oppression, undue burden, or expense (Fla. R. Civ. P. 1.280(c)).
• - Interrogatory seeks irrelevant subject matter (Fla. R. Civ. P. 1.280(b)(1)).
• - Interrogatory seeks improper subject matter or expert witness information (Fla. R. Civ. P. 1.280(b)(5)(A); Fla. R. Civ. P. 1.280(b)(5)(B)).
• - Interrogatory is vague or overbroad (Krypton Broad. v. MGM-Pathe Commc'ns Co., 629 So. 2d 852 (Fla. 1st DCA 1993)).
• - Interrogatory amounts to obtaining the ultimate relief requested (Travelers Protective Ass'n v. Hackett, 438 So. 2d 1074 (Fla. 2d DCA 1983)).

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).

I. Overview

• Subpoena ad testificandum: requires a person to testify at a proceeding (Fla. R. Civ. P. 1.310(a))
• Subpoena duces tecum: requires the production of books, papers, and other things (Fla. R. Civ. P. 1.350(a))
• Information subpoena: enforces a money judgment obtained through successful litigation (Newman v. Brown, 252 So. 3d 755 (Fla. 4th DCA 2018))

II. Issuing a Subpoena

• Can be issued by the clerk of court or attorney of record (Fla. R. Civ. P. 1.410)
• Notice of deposition constitutes authorization for issuing a deposition subpoena (Fla. R. Civ. P. 1.410(e)(1))

III. Basic Format Requirements

• Must state the name and address of each person to be examined (Fla. R. Civ. P. 1.310(b)(1); Fla. R. Civ. P. 1.410(e)(1); Fla. R. Civ. P. 1.351(a))
• Specify address where deposition will be taken and documents will be produced or delivered (Fla. R. Civ. P. 1.410(e)(2); Fla. R. Civ. P. 1.351(c))
• Specify date and time of deposition with document production (Fla. R. Civ. P. 1.410(b)(1))
• Describe nature of deposition, rights and duties of deponent, penalties for disobedience (Fla. R. Civ. P. 1.351(a); Fla. R. Civ. P. 1.410(c); Fla. R. Civ. P. 1.410(e))
• If directed to a minor, inform of the right to be accompanied by a parent or guardian (Fla. R. Civ. P. 1.410(h))
• Describe materials to be produced by item or category (Fla. R. Civ. P. 1.351(a); Fla. R. Civ. P. 1.350(a))

IV. Service Requirements

• Serve notice of production and copy of proposed subpoena on all parties at least 10 days before issuing the subpoena (Fla. R. Civ. P. 1.351(b); Fla. R. Jud. Admin. 2.516(b))
• llow objection period to lapse (Fla. R. Civ. P. 1.351(b); Fla. R. Civ. P. 1.310)
• Personal service of notice of deposition and subpoena on the deponent (Fla. R. Civ. P. 1.410(e))

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.

1. When Appropriate

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

• A deponent fails to answer a question or offers an evasive/incomplete answer (Fla. R. Civ. P. 1.310, 1.320)
• A corporation or entity fails to make a designation (Fla. R. Civ. P. 1.310(b)(6), 1.320(a))
• A party fails to answer an interrogatory (Fla. R. Civ. P. 1.340)
• A party fails to permit inspection or respond to a request for inspection (Fla. R. Civ. P. 1.350)
• A party objects to or fails to permit examination of a person (Fla. R. Civ. P. 1.360(a))

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:

• Failure to answer a question (Fla. R. Civ. P. 1.380(a)(2))
• Dealing with organization (Fla. R. Civ. P. 1.380(a)(2))
• Interrogatories (Fla. R. Civ. P. 1.380(a)(2))
• Requests for production or inspection (Fla. R. Civ. P. 1.380(a)(2))

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

• Personal finances and personnel files are considered private information and should be narrowly tailored in discovery to protect privacy rights (Rappaport v. Mercantile Bank, 17 So. 3d 902 (Fla. 2d DCA 2009); Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936 (Fla. 2002); Brooks v. Brooks, 239 So. 3d 758 (Fla.1st DCA 2018); Sovereign Healthcare of Port St. Lucie v. Fernandes, 132 So. 3d 855 (Fla. 4th DCA Dec. 18, 2013); Walker v. Ruot, 111 So. 3d 294 (Fla. 5th DCA 2013)).

1. Scope of Electronic Discovery

• Responding party must perform diligent search and reasonable inquiry to comply with demand for production of documents and things (Fla. R. Civ. P. 1.280(b)(3); Fla. R. Civ. P. 1.350).
• Duty to produce electronic evidence unless burden, expense, or intrusiveness outweighs the likelihood of discovering admissible evidence (Fla. R. Civ. P. 1.280(d); Fla. R. Civ. P. 1.350).

2. Need for Electronic Discovery

• Fla. R. Civ. P. 1.280(b)(3) authorizes requesting documents in electronic form.
• Economical to review searchable electronic versions of documents.
• No less intrusive means to obtain the information (Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 669 So. 2d 1142 (Fla. 4th DCA 1996); Fla. R. Civ. P. 1.280, 1.350).

3. Form of Production

• Request for ESI may specify the form or forms in which electronically stored information is to be produced (Fla. R. Civ. P. § 1.350(a), (b)).
• If undue expense related to the form requested, responding party must specify a proposed form of production (Fla. R. Civ. P. 1.350(a); Fla. R. Civ. P. 1.350(b)).

4. Inspection of Entire Computer or Hard Drive

• Requesting party may seek production of client's hard drive or other electronic storage devices for inspection (Fla. R. Civ. P. 1.350(a)).
• Generally not permitted absent special circumstances (William Hamilton Arthur Architect, Inc. v. Schneider, 342 So. 3d 757 (Fla. Dist. Ct. App. 2022); Holland v. Barfield, 35 So. 3d 953, 955 (Fla. 5th DCA 2010)).
• Negotiate a stipulated protective order to protect use and disclosure of confidential information (Fla. R. Jud. Admin. 2.505(d); Dorson v. Dorson, 393 So. 2d 632 (Fla. 4th DCA 1981)).

5. Cost-Shifting

• Generally, responding party pays for the production of electronic discovery.
• Costs may be shifted to the requesting party when production requires significant or special costs (Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I)).
• Consider factors such as tailored request, availability of information, total cost, resources, control of costs, importance of issues, and relative benefits (Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I)).

6. Discovery from Nonparties

• Discovery from a nonparty may be conditioned on payment of cost of production (Fla. R. Civ. P. 1.351(c)).
• Failure to make provision for cost to nonparty in order requiring production constitutes departure from essential requirement of law (First Call Ventures, LLC v. Nationwide Relocation Servs., 127 So. 3d 691 (Fla. 4th DCA 2013)).
• Exception for persons or entities with substantial financial interests in assigned claims (Newman v. Brown, 252 So. 3d 755 (Fla. 4th DCA 2018)).

Calendaring Timely Responses to Requests for Discovery and Inspection

• Serve a written response within 30 days after the service of the request (O.C.G.A. § 9-11-34(b)(2))
• Defendants may serve the response within 45 days after service of the summons and complaint (O.C.G.A. § 9-11-34(b)(2))
• Time for responding may be lengthened or shortened by the court upon motion (O.C.G.A. § 9-11-34(b)(2))
• Add three days to the time to respond if requests served by mail or email (O.C.G.A. § 9-11-6(e))

Preparing Written Responses to Requests for Discovery and Inspection

• Responses must be in writing (O.C.G.A. § 9-11-34(b)(2))
• Make requested documents available for inspection and copying (O.C.G.A. § 9-11-34(b)(2))
• State, with respect to each item or category, that inspection or related activities will be permitted as requested, unless there is a written objection (O.C.G.A. § 9-11-34(b)(2))

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

• The court can grant a protective order upon motion and for good cause shown (O.C.G.A. § 9-11-26(c))

Preparing Notice of Motion and Complying with Timing Requirements

• Serve and file the correct papers within time limits established by rule (O.C.G.A. § 9-11-6(d) and Ga. Unif. Super. Ct. R. 6.2)

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

• Pretrial motions in civil actions are generally decided without oral argument (Ga. Unif. Super. Ct. R. 6.3)

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

• Serve the motion for a protective order on each party (O.C.G.A. § 9-11-5(a))

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

• Provide a privilege log and/or move for a protective order to avoid waiving privilege (Georgia Cash America, Inc. v. Strong, 649 S.E.2d 548 (2007))

Objections to Production of Medical Records

• File objection with the court within 20 days of service of the request (O.C.G.A. § 9-11-34(c)(2))

Amending and Supplementing Responses to Requests for Discovery and Inspection

• Duty to seasonably supplement response limited to certain circumstances (O.C.G.A. § 9-11-26(e))
• Propounding party should serve requests for supplementation as necessary (O.C.G.A. § 9-11-26(e)(3))

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))

Determine the Validity of the Subpoena:

1. Properly issued and signed by:
   • The clerk of court (O.C.G.A. § 24-13-21(c)) –or–
   • The representing attorney if for a deposition (O.C.G.A. § 9-11-45(a)(1)(B))
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)

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.

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.

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))

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.

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

• Governed by Md. Rule 2-422(a) and Md. Rule 2-402(a)
• Schedule a pretrial discovery conference if a substantial amount of electronic discovery is expected

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))

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. Written response requirements

• Must be in writing (Mass. R. Civ. P. 34(b)(2)(A))
• State response to each item/category (Mass. R. Civ. P. 34(b)(2)(A))
• Serve within 30 days of receiving RFP (Mass. R. Civ. P. 34(b)(2)(A))

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)

• State objection to requested form, if any (Mass. R. Civ. P. 34(b)(2)(B))
• Produce ESI in the form it is ordinarily maintained or in a reasonably usable form (Mass. R. Civ. P. 34(b)(2)(C)(ii), (iii))

4. Objections

• Privilege: If the requests seek information subject to attorney-client privilege, you may object on this basis. See generally Mass. R. Civ. P. 26 and Mass. R. Civ. P. 34.
• Protective Order: If the requests seek information protected by a court-imposed protective order, you can object on this ground. See generally Mass. R. Civ. P. 26 and Mass. R. Civ. P. 34.
• Relevance: If the requests are not reasonably calculated to yield discoverable evidence, you may object on the grounds of relevance. However, keep in mind that the scope of discovery under Mass. R. Civ. P. 26 is broad, as seen in LNV Corp. v. Duzan, 2014 Mass. App. Div. 78.
• Possession, Custody, or Control: If the requests seek information that is not in your client's possession, custody, or control, you can object on these grounds. See generally Mass. R. Civ. P. 26 and Mass. R. Civ. P. 34; OneBeacon Am. Ins. Co. v. Narragansett Elec. Co., 90 Mass. App. Ct. 123, 57 N.E.3d 18 (Mass. App. Ct. 2016).
• Overly Broad or Unduly Burdensome: If the requests are overly broad or would impose an undue burden or expense on your client, you can object on these grounds, as supported by Mass. R. Civ. P. 26(c).
• Timing: If the requests seek information from a time period outside the relevant scope, you can object on the grounds of improper timing. See generally Mass. R. Civ. P. 26 and Mass. R. Civ. P. 34.
• Confidentiality: If the requests seek confidential information, such as trade secrets or proprietary information, you can object on these grounds and seek a protective order under Mass. R. Civ. P. 26(c).
• Repetitive or Duplicative: If the requests are repetitive or duplicative of previously served discovery requests, you can object on these grounds. See generally Mass. R. Civ. P. 26 and Mass. R. Civ. P. 34.

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

• Provide a privilege log or equivalent description of withheld documents (Mass. R. Civ. P. 26(b)(5))
• Move for a protective order, if necessary (Mass. R. Civ. P. 26(c))

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

• Serve upon the requesting party and other parties to the litigation (Mass. R. Civ. P. 5(b))
• Serve by personal delivery, mail, or electronically with consent (Mass. R. Civ. P. 5(b)(1)-(2))

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
   • - Draft an introduction to the set of interrogatories that defines terms and sets rules for answers.
   • - Use standard definitions provided by Mass. Super. Ct. R. 30A(1)(c) and incorporate them into all discovery requests by reference (Mass. Super. Ct. R. 30A(1)(a)).
   • - Define other terms specific to the particular litigation, use abbreviations, or narrow the definition of a term defined in Mass. Super. Ct. R. 30A(1)(c).
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
   • - Seek information that is reasonably calculated to lead to the discovery of admissible evidence (Mass. R. Civ. P. 26(b)(1)).
   • - Use contention interrogatories to seek the basis for allegations in pleadings (Mass. R. Civ. P. 33(b)).
5. Limit the Number of Interrogatories
   • - Serve no more than 30 interrogatories total on any other party without leave of court (Mass. R. Civ. P. 33(a)(2)).
   • - Number all interrogatories consecutively (Mass. R. Civ. P. 33(a)(2)).

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
   • - Follow the formal requirements for interrogatory responses as set forth in Mass. R. Civ. P. 33(a)(1), (a)(3), and Mass. Super. Ct. R. 30.
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
   • - In a theft of trade secrets case, the plaintiff must identify the allegedly stolen trade secrets with reasonable particularity (Alnylam Pharms. v. Dicerna Pharms., Inc., 33 Mass. L. Rep. 495 (Mass. Super. 2016)).

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
   • - Serve answers within 45 days after being served with interrogatories (Mass. R. Civ. P. 33(a)(3)).
   • - If necessary, move to enlarge or shorten the time to respond (Mass. R. Civ. P. 33(a)(3)).
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.

1. Basics of Responding to a Subpoena

• Four options for responding: comply, object, move to quash or modify, or move for a protective order (Mass. R. Civ. P. 45)
• Ignoring or refusing to comply can result in contempt and sanctions (Liseno v. Fallon Clinic, No. 20041117B (Mass. Cmmw. Sep. 9, 2009); Capital Site Mgt. v. Inland Underwriters, 61 Mass. App. Ct. 14, 806 N.E.2d 959 (Mass. App. Ct. 2004))

2. Duty to Preserve Evidence

• Service of a subpoena imposes a duty to preserve the material requested (Fletcher v. Dorchester M. Ins. Co., 437 Mass. 544, 773 N.E.2d 420 (Mass. 2002))

3. Complying with a Subpoena

• Subpoena may seek testimony, production of documents, inspection of premises, or a combination (Mass. R. Civ. P. 45)
• Geographical limitations apply (Mass. R. Civ. P. 45(d)(2))

4. Producing Documents or Electronically Stored Information

• Must produce documents as kept in the ordinary course of business or organized and labeled to correspond with categories in the subpoena (Mass. R. Civ. P. 45(f)(1)(A))
• Special rules for electronically stored information (Mass. R. Civ. P. 45(b), 45(f)(1)(B), 45(f)(1)(C))

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

• Responding party bears the burden of showing inaccessibility (Mass. R. Civ. P. 45(f)(1)(D))
• Requesting party can obtain production with a showing of good cause (Disability Rights Council v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 (D.D.C. 2007))

7. Privilege

• Responding party has the burden of establishing privilege (Swartz v. Cartwright, No, No. 000059 (Mass. Cmmw. Jul. 19, 2002))

8. Annoyance, Embarrassment, Oppression, or Undue Burden or Expense

• Rule 45 provides protections against unwarranted burdens (Mass. R. Civ. P. 45(b), 45(d)(1), 45(f)(3)(A))

9. Methods of Resisting a Subpoena

• Objecting: must serve objections before the specified response date and within 10 days of service (Mass. R. Civ. P. 45(d)(1))
• Motion to Quash or Modify: must serve the motion promptly and no later than the specified compliance time (Mass. R. Civ. P. 45(b))
• Motion for Protective Order: responding party bears the burden of showing good cause (Alnylam Pharmaceuticals, Inc. v. Dicerna Pharmaceuticals, Inc., MICV2015-4126 (Mass. Super. Oct. 23, 2017)); court may consider various factors in determining undue burden or expense (Mass. R. Civ. P. 26(c))

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)).