Drafting Basic Legal Documents: Discovery
This lesson introduces the fundamentals of discovery documents, specifically focusing on interrogatories and requests for production of documents. You'll learn how to draft basic requests and responses, building the foundational skills needed for litigation support.
Learning Objectives
- Define and differentiate between interrogatories and requests for production of documents.
- Identify the components of a well-drafted interrogatory and request for production.
- Draft basic interrogatories and requests for production.
- Understand the basic principles of responding to discovery requests.
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Lesson Content
Introduction to Discovery
Discovery is the process where parties in a lawsuit gather information from each other. It's a crucial part of litigation, allowing each side to understand the other's case and prepare for trial. There are several methods of discovery, including interrogatories, requests for production of documents, depositions, and requests for admission. Today, we'll focus on interrogatories and requests for production.
Interrogatories: Questions Under Oath
Interrogatories are written questions sent to the opposing party. They must be answered in writing, under oath, and within a specific timeframe (usually 30 days, but this can vary by jurisdiction).
Components of an Interrogatory:
- Heading: Includes the court name, case number, and parties' names.
- Introduction: Often states the party propounding the interrogatories and the party to whom they are addressed. It also might include definitions of terms used.
- Interrogatories: The questions themselves. They should be clear, concise, and related to the facts of the case. Each interrogatory is numbered.
- Closing: A statement requiring the party to respond under oath.
Example Interrogatory:
Caption: (Court Name, Case Number, etc.)
Introduction: Plaintiff, [Plaintiff's Name], by and through counsel, propounds the following Interrogatories to Defendant, [Defendant's Name], to be answered fully, in writing, and under oath, within thirty (30) days of service of these Interrogatories.
Interrogatories:
1. State your full name, current address, and date of birth.
2. Identify all witnesses to the events described in the Complaint.
3. Describe in detail the events that occurred on [Date of Incident].
Closing:
These Interrogatories are submitted to you, pursuant to [Relevant Rule of Procedure], and require a sworn response.
Requests for Production of Documents: Providing Evidence
Requests for Production of Documents (or just "Requests for Production") are written requests to the opposing party to produce documents and other tangible things. This can include documents, photos, videos, emails, electronic files, and other physical evidence. Similar to interrogatories, the responding party must produce the requested items within a specified timeframe.
Components of a Request for Production:
- Heading: Similar to interrogatories (court, case number, parties).
- Introduction: States the requesting party and the party from whom documents are requested. Might include a definition of 'documents' as used.
- Requests: Specific requests for documents. Each request is numbered and should clearly describe the documents being sought.
- Closing: A statement specifying the requested timeframe and manner of production.
Example Request for Production:
Caption: (Court Name, Case Number, etc.)
Introduction: Plaintiff, [Plaintiff's Name], by and through counsel, requests that Defendant, [Defendant's Name], produce the following documents for inspection and copying within thirty (30) days of service of these Requests. For purposes of these Requests, "documents" includes any written, recorded, or electronic material.
Requests:
1. Produce all documents related to the contract between Plaintiff and Defendant.
2. Produce all emails sent or received by Defendant concerning the events described in the Complaint.
3. Produce all photographs taken of the scene of the incident.
Closing: These Requests are made pursuant to [Relevant Rule of Procedure]. Documents should be produced to [Location or Method of Production].
Responding to Discovery
Responding to discovery involves more than just answering questions or providing documents. You must conduct a reasonable search for the requested information and documents. Responses should be timely and, in general, responses to discovery must be signed by the party under oath or by their attorney, to attest to the accuracy and truthfulness of the responses and to certify that the responding party has fully complied with all obligations to produce discovery.
Key Considerations when responding to Discovery:
- Objections: A party may object to an interrogatory or a request for production if it is irrelevant, seeks privileged information (e.g., attorney-client communications), or is unduly burdensome.
- Providing Responsive Information: If a question is not objected to, you must provide a complete and accurate answer, based on the information available to you.
- Document Production: Documents must be produced as they are kept in the usual course of business or organized by the categories of requests.
- Signing Under Oath: As mentioned, discovery responses are usually signed under oath, so truthfulness is paramount.
Deep Dive
Explore advanced insights, examples, and bonus exercises to deepen understanding.
Deep Dive: Nuances of Discovery – Beyond the Basics
Building upon the fundamentals of interrogatories and requests for production, let's explore some subtle but crucial aspects of drafting and responding to discovery.
Specificity and Breadth
The art of discovery lies in finding the right balance between specificity and breadth. While you want to ask targeted questions that elicit relevant information, you also need to ensure you cast a wide enough net to uncover all potentially relevant documents and facts. Overly narrow interrogatories or requests risk missing crucial information, while overly broad ones can be met with objections and may be burdensome for the opposing party to answer. Consider the following:
- Specificity: Focus on specific events, individuals, and documents. Use precise dates, locations, and terminology.
- Breadth: Don't be afraid to ask for "all documents" relating to a specific topic, but remember to define the scope appropriately to avoid overreach. Consider including phrases like "including, but not limited to..." to expand the types of documents requested.
The Importance of Definitions
Clearly defining key terms within your discovery requests is paramount. Ambiguous language can lead to misunderstandings, disputes, and objections. A well-crafted definition section will ensure both parties are on the same page. For example, if you're asking for "communications," define what that means (e.g., "any oral, written, or electronic exchanges").
Preserving Your Record
Discovery responses are crucial evidence. Always maintain copies of all discovery requests and responses. Pay close attention to dates. Organize all documents methodically for easy retrieval. Many legal professionals use document management systems to organize discovery.
Bonus Exercises: Putting Knowledge into Action
Exercise 1: Refining Your Requests
You've drafted an interrogatory asking for all facts supporting a specific claim. Now, refine it. How can you make it more specific and less prone to a vague response? Consider adding a follow-up question asking for the identity of any witnesses. What language can you use to ensure it is clear what information is requested?
Exercise 2: Drafting Definitions
Draft a definition section for a set of requests for production relating to "financial records". Include at least three key terms that need defining, such as "financial record," "transaction," and "account." Be as specific as possible to avoid any ambiguity.
Real-World Connections: Discovery in Action
Discovery isn't just a legal formality; it's a critical component of nearly every civil lawsuit and sometimes criminal cases. Consider how these skills apply outside of hypothetical scenarios:
- Understanding the Story: Discovery helps you understand the opposing party’s perspective and gather the narrative needed to build a strong case.
- Early Assessment: Early discovery allows you to assess the strengths and weaknesses of a case, helping determine if settlement is a good strategy.
- Settlement Negotiations: The information gained through discovery significantly impacts settlement negotiations, helping to determine the value of a case.
Think about how discovery documents are used by lawyers in movies and TV shows. While often dramatized, these portrayals illustrate the strategic importance of asking the right questions and obtaining the correct documents.
Challenge Yourself: Advanced Application
Imagine you're preparing discovery in a breach of contract case. Your client alleges that the opposing party failed to deliver goods as agreed. Draft a set of five interrogatories and five requests for production aimed at uncovering evidence related to the contract, the goods, and the breach. Consider including requests related to communications, delivery schedules, and payment.
Further Learning: Expanding Your Knowledge
Explore these YouTube videos for additional insights:
- Document Review Training For Paralegals — Overview of document review principles.
- How to Respond to Discovery Requests — Tips for the recipient of discovery requests.
- Introduction to Electronic Discovery (eDiscovery) — eDiscovery in modern litigation.
Interactive Exercises
Interrogatory Drafting Exercise
Imagine you represent the plaintiff in a car accident case. Draft three interrogatories to the defendant asking about: (1) their insurance information; (2) whether they were using a cell phone at the time of the accident; and (3) the names and addresses of any other witnesses to the accident. Your response should include the full heading, introduction, and the three interrogatories.
Request for Production Drafting Exercise
Continuing with the car accident scenario. Draft three requests for production of documents to the defendant, requesting: (1) their driver's license; (2) any photographs of the accident scene; and (3) their cell phone records from the date and time of the accident. Include the full heading, introduction, and the three requests for production.
Objection Challenge
Consider the following interrogatory: 'Describe every single thought you had on the day of the accident.' Identify at least two reasons why a party might object to this interrogatory. Write your response, explaining your rationale.
Practical Application
Imagine you're a paralegal in a small personal injury law firm. Your supervising attorney asks you to prepare a set of interrogatories and a request for production of documents in a straightforward car accident case. Use the exercises from this lesson as a starting point, and tailor your requests to the specific facts of the fictional case (e.g., the accident happened at a certain intersection, and the client was injured).
Key Takeaways
Discovery is the process of gathering information from the opposing party.
Interrogatories are written questions, and Requests for Production seek documents and other tangible evidence.
Drafting clear and concise interrogatories and requests is crucial.
Responding to discovery involves a reasonable search and, in general, responses must be truthful and accurate.
Next Steps
Prepare for the next lesson by reviewing the basic structure of a complaint and answer.
Start thinking about the different elements needed in a formal legal document.
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