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Written Discovery

The more work a client does initially to accurately answer questions or provide requested documents will ultimately save the client in attorney’s fees and the more likely the ultimate legal result will be satisfactory to the client.

Often times during a litigated case, the parties will send written documents to each other. We lawyers call these documents written discovery. These “discovery requests” require a party to answer under oath, much the way a witness answers questions at a “deposition” or in trial.  Discovery requests typically include: Interrogatories, Requests for Admission and Requests for Production of Documents.

Interrogatories are written questions seeking written answers that are provided under oath, and they come in two “flavors”: “Form Interrogatories” and “Special Interrogatories.” Responses consist of four types of answers:

(1) Objections—Often interrogatory questions are not proper, meaning they disobey certain court rules. Attorneys recognize these issues and state objections to the interrogatory. Objections are not generally the client’s concern.

(2) A factual statement—A factual statement requires the client’s input. Although the attorneys draft the answer, it is essential that the client read the interrogatory and provide as much information as possible to answer it factually. Once final answers are drafted, the client must read the answers again carefully because the client will be required to state under oath (under penalty of perjury) that the answers are true to the best of the client’s knowledge.

(3) A statement that the party does not know the answer—A statement that the party does not know the answer can only be made if the party has conducted a reasonable inquiry to try to determine the answer but is still unable to respond.

(4) A statement that the answer can be found in documents that are identified—A statement that the answer can be found in documents that are being produced is appropriate when the party asking the interrogatories is asking for information that exists on detailed schedules or business records, and it would be just as easy for either side to summarize the contents of those records in response.

Requests for Production of Documents are often served simultaneously with Interrogatories. They ask the party to produce all documents in their possession or control that are of the type asked for. Again, often times the requests are improper and the attorney will provide objections. What is important for our client to know about Requests for Production of Documents is that the client must make a thorough inspection of all documents in the client’s possession to make sure that we are producing all documents that are called for in the request.  This includes electronically stored information like emails and financial records, if requested.

Our clients sometimes do not wish to do the work required to look for the requested documents.  That can and often does prove very damaging at trial when one of two things happens. Either the lawyer on the other side produces a document we said we did not have or we later decide to produce a document at trial that we never produced during discovery. In the latter case, the Court will never let us offer the document at trial if we did not produce it during discovery. So it is critical that we do our best to obtain all responsive documents. The client will be called on to sign under penalty of perjury that he/she has produced all responsive documents.

Requests for Admission are the easiest requests for a client to answer, but the penalty for a wrong answer can be very damaging. In a Request for Admission, the party is typically asked to admit or deny a fact. [Example: admit that you stole money.] Hopefully our client would respond with a “deny.” J Sometimes Requests for Admission include attached documents to which the client is asked to admit that they are “genuine.”

If a client refuses to answer the Requests for Admission, the Court can “deem” them all admitted. If a client admits a Request or they are deemed admitted, the client can never again deny the request.  So it is critical to make sure our answer is correct.

Conclusion
We recognize that responding to written discovery mean more work for our client. But the more work the client does to accurately answer the questions or provide the documents early on, ultimately the more the client will save in attorney’s fees and the more likely the ultimate result will be satisfactory to the client. Please call us if you have any questions about how to respond to any of the questions. Our sole purpose here is to help clients get through litigation in a successful and economical manner.