Responding to Written Discovery Requests: Fundamentals PDF

Responding to Written Discovery Requests: Do Not Provide Aid to the Enemy Luis General 11 Dec 2024  Responding to WRITTEN DISCOVERY REQUESTS (In General) Responding to Written Discovery Requests: In General APPROA...

Responding to Written Discovery Requests: Do Not Provide Aid to the Enemy Luis General 11 Dec 2024  Responding to WRITTEN DISCOVERY REQUESTS (In General) Responding to Written Discovery Requests: In General APPROACH to Responding 1. MUST I OBJECT? → Privileged? Work product? Irrelevant? 2. SHOULD I OBJECT? WHAT OBJECTIONS ARE AVAILABLE? 3. SHOULD I ANSWER THE QUESTION ONCE THE OBJECTION IS STATED? 4. —OR— If objections are improper or will serve no purpose, ANSWER THE QUESTION Responding to Written Discovery Requests: Must/Should I Object? RULE: objection not stated = waiver!!! State ALL applicable objections in the initial written response Over-objecting > Under-objecting Responding to Written Discovery Requests: Should I answer despite the objection? Almost no risk in stating an objection if the request is answered any way. BUT objecting w/o answers → defense motion to compel further responses Responding to Written Discovery Requests: Should I answer despite the objection? If an improper question seeks information that will not hurt your case and does not invade your client’s privacy, ANSWER the question Why? DC may think you’re hiding something important. Responding to Written Discovery Requests: Should I answer despite the objection? State the objection, but comply with the request → Judge may eventually grant “Subject to and without waiving said objections, plaintiff responds as follows...” Avoiding “Over-Responding” to Minimize Risks Avoid “Over-Responding”  GR: Over-objecting > Under-objecting  BUT over-responding is a different animal  Substantive responses MUST be concise, direct-to-the-point  You must not volunteer information  Answer only what is being asked “Over-Responding” = Aiding the Enemy  As you volunteer more info, more issues/questions arise  DEF to conduct more discovery to their advantage  In effect, you are “aiding the enemy” “Over-Responding” = Aiding the Enemy Discovery: The process of exchanging information between parties in a legal case to gather evidence that can be used at trial to support or refute a party’s claims or defenses. Example 1 DEF Interrogatory: “Were you employed at the time of the incident”? PL Response: “I was employed at Walmart in Compton, CA, earning $20 an hour.” Example 1  DEF Interrogatory: “Were you employed at the time of the incident”?  PL Response: “I was employed at Walmart in Compton, CA, earning $20 an hour.”  Likely Consequence: DC will subpoena Walmart’s records pertaining to PL and find out about worker’s compensation, etc. Example 1: What Response Should Be  DEF SROG: “Were you employed at the time of the incident”?  PL Response: [Applicable Objections, if any] “Yes.” Example 2  DEF FROG 20.8 →  PL Response: (b) At the time of the INCIDENT, Plaintiff was traveling eastbound on Michigan Avenue at approximately 30 mph, heading to a doctor’s appointment for a follow-up on a previous knee injury. Defendant’s vehicle, traveling northbound on Elm Street at an unknown speed, failed to stop at a red light and struck Plaintiff’s vehicle in the intersection. Example 2  DEF FROG 20.8 →  PL Response: (c) After the INCIDENT, Plaintiff felt immediate pain in their neck and back, was unable to move for several minutes, and had to be transported to the hospital by ambulance. Defendant appeared distraught and mentioned that they were late for work. Example 2: What Response Should Be  OVERDISCLOSURE: At the time of the INCIDENT, Plaintiff was traveling eastbound on Michigan Avenue at approximately 30 mph, heading to a doctor’s appointment for a follow-up on a previous knee injury. Defendant’s vehicle, traveling northbound on Elm Street at an unknown speed, failed to stop at a red light and struck Plaintiff’s vehicle in the intersection.  NO OVERDISCLOSURE: At the time of the INCIDENT, Plaintiff was traveling eastbound on Michigan Avenue within speed limit when Defendant’s vehicle, traveling northbound on Elm Street at an unknown speed, failed to stop at a red light and struck Plaintiff’s vehicle in the intersection. Example 2: What Response Should Be  OVERDISCLOSURE: After the INCIDENT, Plaintiff felt immediate pain in their neck and back, was unable to move for several minutes, and had to be transported to the hospital by ambulance. Defendant appeared distraught and mentioned that they were late for work.  NO OVERDISCLOSURE: Immediately after the INCIDENT, Plaintiff’s vehicle came to a stop in the intersection, and Defendant’s vehicle continued moving before coming to rest on the east side of Elm Street. Samples from Peer Review GC No. 01 For PL’s advantage but: it could also open the door for DC to request additional evidence or make arguments about the PL’s condition before or after the incident (e.g., medical history, other factors contributing to inability to work). Response should be: DoorDash, Inc. (2017 – June 14, 2022) 303 2nd St., South Tower Suite 800, San Francisco, CA 94107 Job Title: Delivery Driver Nature of Work: Delivering food to customers Samples from Peer Review GC No. 02 It specifies the pain but allows the defense to argue it’s situational or less impactful when at rest. Samples from Peer Review GC No. 03 new areas for DEF to investigate, like pre-existing weight or fitness- related issues Invites DEF to conduct sub rosa DEF to subpoena travel records or investigate whether the plaintiff has attempted similar activities post- incident  Generalize Where Possible Focus on Material Facts: Emphasize functional limitations rather than listing hobbies and specifics that could be scrutinized Eliminate Overly Personal Details: Statements about weight gain, fear of being pulled by the dog, or specific vacation destinations SUGGESTED REVISION: "As a result of the injuries sustained in the INCIDENT, PLAINTIFF has experienced significant limitations in performing daily activities, including recreational exercise, household chores, personal grooming, and routine errands. These activities, which she was able to perform independently prior to the INCIDENT, now require assistance or are performed with significant difficulty. PLAINTIFF reserves the right to supplement or amend this response as discovery is ongoing." Samples from Peer Review GC No. 04  Responding to WRITTEN DISCOVERY REQUESTS: Deadlines Responding to Written Discovery Requests: Deadline to Respond  A party must generally respond within 30 days of service.  A response is deemed complete on mailing.  The 30-day deadline is extended if the requests were delivered by non-personal service:  2 court days if served electronically or by overnight delivery  5 calendar days if served by mail within California  10 calendar days if served by mail from or to an address outside California, but within the US  20 calendar days if served from by mail from or to an address outside the United States Responding to Written Discovery Requests: Modification of Deadline  The time for responding may be shortened or lengthened by either a court order or stipulation.  As a matter of professional courtesy, and to avoid unnecessary and excessive requests for judicial intervention, parties should generally grant first requests for extensions of time, unless a party has abused such requests or deadlines are pressing.  Generally, it is sensible to grant a request for an extension because denying the request is likely to cause the other party to deny your future requests for extensions or other accommodations. Responding to Written Discovery Requests: Modification of Deadline  If the parties stipulate to shorten or extend the response deadline, court approval of the stipulation is unnecessary.  However, the stipulation must be:  In writing  Specify the new deadline –and–  Served on all parties who were served with the requests Responding to F/SROGS Responding to F/SROGs If both F/SROGs are received, they will need to be answered separately. The responses to both, however, are similar. Answers must be as complete and straightforward as possible Accurate to the best of party’s knowledge Same applicable objections – exc. subparts/compound Responding to F/SROGs Under oath → “verified” Must be signed by atty if there are objections No need for verification if responses are all objections Responding to F/SROGs Options in responding to each interrogatory:  Answer without objection  Object to all or part of the interrogatory, but provide an answer "subject to" the objections  Object and provide no answer  State: lack of personal knowledge to respond to all or part of the interrogatory and:  has made a reasonable and good faith effort to obtain the information and answer accordingly  —OR— the information is equally available to the propounding party and provide no further answer  Identify documents containing the requested information  Protective order Responding to RFAs Responding to RFAs  Under oath → “verified”  If a response includes any admission (in whole or in part) or denial, it must be verified  Otherwise, it will be considered untimely, allowing the requesting party to move for an order deeming the requests admitted  Must be signed by atty if there are objections  No need for verification if responses are all objections Responding to RFAs Options in responding to each RFA:  Answer the RFA without qualification/objection → “Admitted” or “Denied”  Answer the RFA with qualifications  Object to all or part of the interrogatory, BUT provide an answer "subject to" the objections  Object AND provide no answer  State: lack of info to respond to all or part of the RFA, AND despite reasonable and good faith effort to obtain the information, responding party is unable to answer  Protective order Effect of Admission  An answer that admits the request (or part of it) conclusively establishes that matter for trial.  Admissions can be offered as evidence at trial and in connection with motion practice, including MSJ.  If not withdrawn or amended → cannot be rebutted by contrary testimony OR ignored by the court simply because it finds the evidence presented by the party against whom the admission operates more credible. Motion to Withdraw/Amend Admission  If prior admission is incorrect or incomplete → file a noticed motion asking the court for an order allowing withdrawal or amendment of the admission  Court order NEEDED  Grounds:  Mistake  Inadvertence –or–  Excusable neglect Responding to RFPs Options in Responding to RFPs  Agreement to Produce  Statement of Inability to Comply  Object to All or Part of the Request  Motion for Protective Order Responding to RFPs: Agreement to Produce  When a request is straightforward and unobjectionable and your client has responsive documents → respond that all responsive documents that are in possession, custody, and control will be produced  When responding to a second or other subsequent set of RFPs, if your client has already produced the documents in response to an earlier request, the subsequent response should state that clearly (statement of compliance)  An incomplete statement of compliance may result in a motion to compel. Responding to RFPs: Statement of Inability to Comply  When a request seeks documents that are not in the responding party's possession, custody, or control, the responding party must clearly state that in the response:  Affirm that a diligent search and reasonable inquiry has been made in an effort to comply with the demand;  Explain that the responding party is unable to comply because one of the following:  The requested documents have never existed  The requested documents have been destroyed  The requested documents have been lost, misplaced, or stolen  The requested documents have never been in the responding party's possession, custody, or control  The requested documents are no longer in the responding party's possession, custody, or control  –AND– Identify any other person or entity known or believed to be in the possession, custody, or control of the requested items  Inadequate, evasive, or incomplete statement of inability to comply → motion to compel Responding to RFPs: Object to All or Part of the Request  If an objection is made to only part of a request, the responding party must provide a statement of compliance OR statement of inability to comply as to the remainder of the request.  In order to properly assert an objection, the response must specifically identify the document or category AND the specific grounds for the objection. Privilege Log  Whenever a responding party withholds documents or redacts a portion of a document based on a privilege, work product, or other objection, it must include sufficient information in the response OR a separate privilege log to allow the opposing party to evaluate the claim of protection. Privilege Log  In practice, most responses will identify the objection and the scope of materials to which it applies, while the details supporting the claim of protection from discovery will be provided in a privilege log.  A privilege log generally includes the following information for each document (or categories of documents):  Document identification (bates number)  Date of document  Authors  Recipients  Type of document (e.g., letter, email)  Privilege claimed Questions THANK YOU! ☺☺☺