Practice Pointers: Written Discovery
Learn helpful best practices for drafting and using written discovery:
A litigation attorney must think and act in a strategic and measured way to be successful. If you are searching for practice pointers on how to create and handle written discovery in civil litigation, read this article to learn more.
Specifically, we will discuss:
Important first steps to prepare for the process of written discovery.
When to copy and paste or customize when drafting written discovery, and how to automate repetitive drafting tasks.
The importance of crafting clear and concise language and some tips for making that happen.
A set of best practices for three main types of written discovery requests, including not underestimating requests for admission.
How to best respond and object to discovery requests from the opposing party.
Important first steps to prepare for written discovery
There are four, among other, important first steps that a litigation attorney should take when facing a discovery process.
Know the specific discovery rules that apply.
Do as much discovery as you can with your client.
Ask how written discovery will help you accomplish your goals.
Be realistic with your discovery timeline.
Know the specific discovery rules that apply
If you are in federal court, then the Federal Rules of Civil Procedure govern the discovery process. If you are in state court, then the civil procedure rules of that state apply. Important differences include, but are not limited to, the scope of permissible discovery requests and the number of interrogatories.
But those are not the only rules you have to study. Litigation attorneys should pay close attention to local district court rules. They sometimes hold different views even when interpreting the same rules of civil procedure.
Do as much discovery as you can with your client
Discovery for your case starts during intake. From the beginning your client is the best starting point for relevant information, evidence, witnesses, and documents. Talk to your client about what they need to do to help you propound and respond to discovery.
Ask how written discovery will help you accomplish your goals
Your own efforts to investigate the case help you know what the opposing party or a third party may have that you want to target during the discovery process. Think carefully about what type of information each source may have. At times, the answers might be unexpected. Because you never want to ask questions whose answers you don’t know at trial, the time to find the answers to your case’s critical questions starts with discovery.
In general, if you believe that asking for something might help your client, ask for it. The scope of what is admissible at trial is narrower than what you can put into the discovery process.
Garnering relevant facts and helpful information is only one goal you may have for written discovery. Other objectives can include testing the pleadings. Whatever you do, make sure you can provide support your decisions if necessary. In general, the rules of discovery consider the needs of the case as well as prejudice and negative impact on the parties involved. The more you understand the discovery needs of your client and the alternatives available, the better off you will be during – for example – motion practice.
Be realistic with your discovery timeline
Make a discovery timeline. Tailor it to the circumstances of your client and the case. Your discovery timeline should account for written discovery between the opposing parties as one aspect of a broader discovery process.
As an example, some cases may require third-party discovery via subpoenas. You may decide that depositions and documents with third parties would also be valuable. Understanding that third-party discovery can take a significant amount of time to execute is critical for you timeline – it may take you weeks to discuss and come to terms with third parties regarding their deposition dates and document productions.
Drafting written discovery: Copying, customizing, and automating
Use pre-approved discovery requests as much as you can
Use discovery requests that have been pre-approved in your jurisdiction. Depending on the jurisdiction, this could include, but may not be limited to, interrogatories asking for basic information and requests for admission seeking to admit the genuineness of documents. It will be difficult for the opposing party to objects on grounds of ambiguity or burden given the judicially-approved nature of the form interrogatories.
Tailor discovery requests to the case at hand
The more litigation experience that you have under your belt, the more you will encounter situations where you know exactly what information you need to win your case.
Until then, be as thoughtful as you can when drafting requests or interrogatories. Copying and pasting from discovery requests made by other practitioners can be a waste of your time and your client’s money because each case involves a unique nexus of facts. That being said, by evaluating the complaint and answer underlying sample discovery requests will be much more helpful because you’ll be able to determine what requests relate to what theories/facts.
Use software to save time on routine work
Options for software in the legal industry have improved significantly in recent years. This is especially true with the rise of artificial intelligence. Attorneys have access to great tools. The best legal industry software saves attorneys time on routine work. Litigation attorneys also have access to useful technology. Software can automate litigation tasks. This includes drafting discovery response documents.
Briefpoint, for example, automates the construction of discovery response documents.
Craft clear and concise language
Use clear and concise language as much as you can. Written discovery requests and responses should be technical – not inflammatory. Make your arguments in motions and in court – discovery requests are not the place to postulate the merits of your case.
Use standard English. Avoid legalese to the extent possible. If your discovery requests are shown to a jury, they will respond much better to simple, easy-to-understand language. This will be important if, for example, you use a request for admission response for purposes of impeachment via cross-examination. And it’s not just the jury who will appreciate simpler word choice and shorter sentences. The judge will too. Further, the more clearly you write, the less grounds for objection based on ambiguity.
If a term in your written discovery is ambiguous, either substitute it for clearer language or define the term. Depending on your jurisdiction, terms may be required to bein a centralized index or within each request or interrogatory wherein the defined term is used.
Avoid intricate subparts and multiple “and/or” operators
Written discovery requests can run into problems in two ways, among others. One, using subparts in written interrogatories and requests for admission. Two, multiple “and/or” operators. Both can create confusion and will ultimately expose your requests or interrogatories to objection. Keep your requests from becoming intricate. Try splitting the sentences or subparts into multiple questions.
Refer to the pleadings
When drafting discovery requests, refer to the pleadings. Paying close attention to them while you draft will keep you focused on the most important questions. Additionally, the more you can use opposing counsel’s own words in your requests/interrogatories, the less grounds they’ll have for objecting on ambiguity or relevance.
Let’s discuss three important types of written discovery requests:
Requests for admission
Requests for Production
Interrogatories are helpful tools for a variety of reasons, often for identifying and organizing facts including, but not limited to, the identification of witnesses and locations where evidence is stored.
You may find, however, that interrogatory answers from the opposing party are scripted and less helpful than documents related to your case’s fact pattern.
You will elicit answers from the opposing party that counsel likely played a substantial role in creating. Opposing counsel will also likely use their answers to your interrogatories to prepare their witnesses before testimony. You should do the same with the answers to interrogatories that you worked on.
Try the “interrogatory first” approach
Before propounding a document request, consider a propounding interrogatorries first. This is suggested because it tends to make the responding party’s production of documents more orderly for the requesting party. You would first propound interrogatories that ask the opposing party to identify documents. Then, after reviewing answers to those interrogatories, you would send a request for production of documents for the documents they identified.
Contention interrogatories will elicit answers from the responding party that may reveal the evidence and witnesses they will use to support their claims and undermine yours. Use of contention interrogatories may lead to objections, including of privilege. The opposing party’s counsel may object that it would be premature to answer the interrogatory. Eventually they will have to answer.
Requests for Production of Documents
Document discovery is potentially the most critical function of discovery. Requests for production of documents can elicit some of the strongest evidence in a case. Contemporaneous documents can offer a real-world, unscripted view into the facts of your case – unfiltered by the motives of your opposing counsel.
Try not to propound broad document requests without first understanding what you’re looking for. Instead, focus on crafting tailored document requests based on what you know about the case so far. These requests will lead to useful documents and you will appear more defensible should you find yourself compelling responses.
Requests for admission
Requests for Admissions have numerous benefits, which we will discuss after technical writing pointers.
Tips for when you draft requests for admission
Your requests for admission should be as carefully written as you can make them. Clear communication avoids confusion and prevents some obfuscation. Better writing is a ward against valid objections.
The language in your requests for admission should satisfy, among others, two criteria. First, write clearly: State the fact you want admitted. Second, tailor the language: State no more facts than what you want admitted; there is one fact described in the request.
Tips to write clear requests for admission:
Do not use adjectives.
Use plain words.
Avoid clauses as much as you can.
Strive to make the request one simple sentence.
Try not to rely on a definitions section to carry your burden. Definitions can help make drafting more efficient, but they can also become clunky and make reading difficult. Consider using helpful and simple language in parentheticals after a potentially ambiguous word. It is meant to be cited as it is written, with no additional aid needed to understand it.
Use requests for admission to settle uncontroversial facts
Requests for admission settle issues and provide some finality so the parties can focus on more important issues of fact. You are unlikely to get an admission of a highly-disputed fact (buy you should still try).
Depositions and cross examination
You can use an admission to take previously garnered deposition testimony and make it more firm.
An admission can be useful later on for cross examination because they are easy to quote.
If the opposing party has been evasive with interrogatories or production of documents, try a request for admission before depositions to make it so they can’t claim confusion. The opposing party has been focused on the key issues.
Three more ways to use requests for admission
Propounding requests for admission early in the discovery process may help you discover holes in the opposing party’s argument and buffer your own.
Requests for admission can help you figure out what exactly the opposing party is disputing factually.
You can send a request for admission near the close of discovery to admit facts for a motion for summary judgment or to help with negotiations to settle the case.
Objecting to written discovery requests
Objections are common during the discovery process. When objections are raised during the discovery process, parties in the majority of jurisdictions have to discuss the dispute (“meet and confer”). Be prepared to handle motion practice, as it is common when parties stand on their objections.
Telling the truth and advocating at the same time
When you do respond and answer discovery requests, make sure two things are true.
The words directly address the request and they state the truth.
You answered and gave no more than you needed; you stayed within the scope of the request.
At the same time, you are an advocate. If possible, frame the response with context that favors your client’s position. For example, consider a written interrogatory is a closed-ended question calling for a “no” or a “yes” and you want to say no, say no and then explain why. Tell the story. Whenever the opposing party’s counsel tries to use your response, your client’s side of the story is there too.
Answering written interrogatories
Learn two practice pointers for answering written interrogatories in civil cases.
First, draft every interrogatory answer knowing that any inconsistencies will be used for impeachment. Make sure that you and the witness are fully comfortable with the answer ahead of time.
Second, it can be difficult and costly to respond to interrogatories asking for identification of documents. A failure to identify documents may be acceptable, though regrettable, if the interrogatory is broadly framed or answering the interrogatory fully is burdensome.
Responding to requests for admission
Be reasonable when you respond and object to requests for admission. If the fact matters in some way and it’s not something you can really disagree with, admit it. If you agree with part but not all you may be required to state that in your response (depending on the jurisdiction).
If you deny a request for admission, then in federal courts and in California, among other jurisdictions, you could potentially be forced to pay the opposing party’s expenses incurred to prove the fact. Federal Rules of Civil Procedure 37(c)(2); California Code of Civil Procedure § 2033.420.
Make drafting written discovery responses easier
Written discovery is part of what litigation attorneys do. It has its own learning curve but, with enough time and practice, drafting discovery will become second nature.
If this article gave you helpful practice pointers, consider if there is room to automate the drafting of your discovery response documents. A free demo of Briefpoint’s software is an easy way to see how much time you will save: Schedule a Demo.
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