Monday, January 09, 2012

Written Discovery Requests: Preliminary Statements and Objections

This post is part of my litigation checklist.

Responding to discovery requests can be time consuming but requires considerable care.  If you’ve been diligent in developing and strategically executing your discovery plan, responding to discovery requests is much easier.  As you make your way through the process, it’s essential to keep in mind some potential pitfalls:

-        If written response to discovery is not made timely, any objections you may have, including claims of privilege, may be waived.

-        If a written discovery request is proper, do not withhold evidence or facts that are favorable to your case.  Failing to produce such information may preclude you from using it at trial. When responding, be sure to produce all information that you have or that can be reasonably obtained.  

-        Don't delegate the drafting of discovery requests to  your client.  They likely do not fully understand the language that is customarily used to respond to discovery requests, or the vital importance of a careful responses and objections, and it is incumbent upon you to make sure this is properly handled in your discovery responses.

Responses to written discovery requests normally start with a preliminary statement and objections.  While much of this is boilerplate, and I am not a fan of preliminary statements that run several pages, it can be helpful to set up preliminary objections to provide a fall-back in the event you fail to make a specific objection to a discovery request that becomes and unanticipated disputed issue at a later date.  Additionally, well-crafted preliminary statements and objections can facilitate shorter and more pointed responses to specific discovery requests, actually saving time and space in the long run.

A template saves time and is customizable to the needs of the case.  The following is some suggested wording: 


1.              Plaintiff objects to Defendant’s Interrogatories, Requests for Production, and Requests for Admission to the extent that they incorporate or set forth definitions,  instructions, or requirements that attempt to impose upon Plaintiff burdens and obligations beyond those contemplated by the Colorado Rules of Civil Procedure.  Plaintiff will respond as required by the applicable provisions of the Colorado Rules of Civil Procedure and any purported instructions, definitions, requirements, or requests to the contrary will be disregarded.

2.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek information protected by attorney-client privilege or work product doctrine.

3.              To the extent any Interrogatory can be interpreted as requiring Plaintiff to identify or produce any document or set forth any information which is in the possession, custody, or control of Defendant or otherwise, that has been available to or is otherwise not in the possession of Plaintiff, or is equally accessible to Defendant,  Plaintiff objects hereto.

4.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek documents or information not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence.

5.              Plaintiff has not completed discovery, investigation, or preparation for trial in this matter. Accordingly, documents and information are provided without prejudice to Plaintiff’s rights to make further objections and present additional information and documents which are hereafter discovered or which further discovery and investigation may indicate are relevant to this action and called for by Defendant.

6.              These general objections apply to each and every one of the following responses and objections, and failure to repeat an objection in response to a specific Interrogatory, Request for Production, or Request for Admission shall not be deemed a waiver of these general objections.

These General Objections are precisely that – general.  In particular, the blanket objection to attorney-client privilege and attorney work product should only be seen as a fallback position, and the contingent "to the extent" phrasing likely will not suffice--it's best to specifically object to each instance where there are responsive materials protected by privilege or work product.  It is generally still necessary to object to a specific interrogatory, RFA, or RFP.  The objection must be applicable to the case, stated clearly and concisely, and supported by legal authority.  And while a Pulitzer Prize has never been awarded for an objection to a discovery request, in the event a discovery dispute arises a judge is more likely to take note of clearly-stated, fully-supported objections, and will appreciate the careful analysis and attention that you have given to your response.

Responding effectively to requests for discovery can require many hours researching cases that support your position that a discovery request is overbroad, burdensome, vague, oppressive, subject to attorney-client (or other) privilege, or not likely to lead to admissible evidence. To this end, in the coming weeks I will be writing a series of articles that will address some of the common objections that are made to discovery requests. Hopefully this information will help make the task less cumbersome and daunting, and will assist you in tailoring your objections to some of the most common discovery issues.   

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

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