Tips for Writing Effective Discovery Requests

COLUMN > Write to Counsel

BY DARCY COVERT

Written discovery is often a lawyer’s least favorite part of a case. It can feel rote, especially because discovery in similar cases often seeks similar information. As a result, many lawyers send out stock initial discovery requests, do not look closely at what they receive in return, and do not seek additional rounds of discovery.

The problem with this approach is that you often do not receive complete answers to your discovery request if the language in the request isn’t clear, simple, and specific enough to your case. Additionally, if you wait until the discovery deadline is approaching to review the other party’s responses and productions, you may realize too late how little substance—and how many vagueness objections—you have received.

Of course, there are some objections, like those based on undue burden, that are fairly subjective and that you may not be able to avoid without overly constraining your discovery requests. But you can obviate many objections with discovery requests that are simple, that use specific terminology, and that are broad without being vague. This approach, moreover, is likely to get you the answers you are seeking, rather than under-disclosure and later excuses that opposing counsel did not understand what you were looking for. What follows are a few approaches to writing effective discovery requests that will save you time and get you valuable information.

Avoid Complex and Compound Questions

In a deposition or at trial, asking complex and compound questions will likely catch an objection. In written discovery, things may be muddier. You may receive incomplete responses that make it difficult to identify whether you have received everything you requested.

This interrogatory is a good example:

Do you attribute any loss of income or earning capacity to the incident alleged in your complaint? If so, then provide the following:

(a) The nature of your work, your job title at the time of the incident, and the date your employment began;

(b) The date you last worked for compensation before the incident;

(c) The amount of monthly income at the time of the incident and how the amount was calculated;

(d) The date you returned to work at each place of employment following the incident;

(e) The dates you did not work and for which you claim lost income as a result of the incident; and

(f) The total income you claim to have lost to date as a result of the incident and how the amount was calculated.

(g) State your income from employment and your income from self-employment for each year beginning three years prior to the incident until the present.

This interrogatory is definitely specific. But it asks for too much information, and the recipient may answer in a way that leaves you unsure of whether you have received a complete response. For example, if the responding party does not provide information about self-employment, are they representing that they have no income from self-employment, or did they just overlook the second half of the seventh subpart of your interrogatory?

Specificity is important, but you should also make sure that your written discovery requests are simple and straightforward. If you are requesting more than three items of information within one interrogatory, assess whether you can break it up into two or more interrogatories. (Sometimes that will not be possible, and sometimes the type of information you are requesting is digestible enough that breaking the interrogatory up is not necessary.) Generally speaking, you will only benefit from shorter, simpler requests. This will not affect how close you are to any limit on interrogatories, as courts typically count each subpart of an interrogatory as its own interrogatory anyway.

The previous interrogatory would have been more effective had it broken out the requests for date information, the requests for information about the person’s income at the time of the incident, and the requests for information about lost income.

Avoiding complex and compound questions in written discovery will help you minimize the need for CR 26(i) conferences to clarify your requests and make easier the subsequent tracking, reviewing, and sending of supplemental discovery requests that follows. It will also minimize ambiguity that may result in intentionally or unintentionally incomplete responses.

Use The Opposing Party’s Own Documents

We have all received responses and objections to discovery that object to almost every word except “the,” “that,” and “which” as vague or ambiguous. In these types of cases, you are unlikely to be able to come up with words definite enough for opposing counsel to agree to answer your questions. Worse, sometimes opposing counsel will answer with the caveat that they are responding only to the extent that they understand a term at issue, leaving you unsure what else they have that is responsive and how to get it.

One remedy to this problem is to refer opposing counsel back to their client’s own documents for terminology. Depending on what you have received from your client and other means of gathering documents authored by the opposing party (e.g., public disclosure requests), this may be difficult to do in initial discovery. But once you receive basic discovery, you have ample fodder for this exercise.

I’ll use an example from a civil rights case I worked on where we regretted not using this strategy, because vague discovery requests ultimately allowed opposing counsel to plausibly deny having violated the discovery rules. In our first discovery, we requested documentation from all “internal affairs” investigations into the police officer who shot our client. In response to a separate request about policies and procedures, we received documents showing that there were two types of internal review processes within this police department: investigations performed by the professional standards unit, and reviews where a board of department higher-ups reviews an already complete external investigation and assesses whether any policy violations occurred. The department responded to our request for internal affairs investigations that no such investigations were conducted in the case. In the CR 30(b)(6) deposition, we learned that the internal board of higher-ups had reviewed an external investigation to look for policy violations. When confronted about what from our perspective were incomplete discovery responses, the department responded that the investigations by the professional standards unit are what they consider to be “internal affairs” investigations, and none was conducted here. They took the position that the internal reviews were not investigations and therefore information about the review of this incident was not responsive to our discovery request.

Once we received the department policies outlining the two types of internal review processes, we should have re-issued the request clarifying that we were requesting documents related to either process, using the nomenclature that the department uses in its policy documents. Had we done so, opposing counsel would have no plausible deniability about their discovery violation.

Make your discovery requests specific by referencing the opposing party’s own documents. It will save you time and avoid misunderstandings.

Be Broad Without Being Vague

Your discovery requests should be specific, but that does not mean they should be narrow. Although it can be a trope, “including but not limited to” is a useful phrase. That is because in many instances you will know some, but not all, of the documents you are seeking.

I will use as an example a case I worked on against an insurance company and the subrogation company with which it contracted. I knew there would be a Business Associate Agreement because HIPAA requires one between companies like this. I also knew there would be at least one contract governing the provision of subrogation reimbursement services. But I did not know whether and how many times that agreement had been amended. I also did not know what other contracts existed between the companies. In requesting all contracts between the companies related to subrogation services, I would specify that the request includes, but is not limited to, the Business Associate Agreement, any contracts governing the provision of subrogation reimbursement services, and any amendments to those contracts.

Specifying a broad category of information or documents makes it more likely that you will receive what you are looking for without narrowing your request to only the limited subset of information and documents that you know exist. Review the discovery you receive and look for information that allows you to make your future discovery requests more specific or to follow up on prior discovery requests to ask for the information and documents you now know about but have not yet received.

Think About What Objections You Would Make

Before you send out discovery, read your draft from opposing counsel’s perspective. If you received these requests, what objections would you make? You can probably improve your draft by anticipating and accounting for likely objections. You can save yourself the time and hassle of conferencing (and arguing) about interrogatories and requests for production, potentially re-issuing them, and tracking this process by carefully crafting what you issue in the first instance.

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