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Category Archives: Requests for Admissions

Written Discovery Basics.

20 Saturday Aug 2016

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Interrogatories, Legal Writing, Requests for Admissions, Requests for Production

≈ 1 Comment

Tags

Definitions and Instructions, Discovery, Legal Writing, Motion to Compel, Objections

I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.

Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.

Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.

There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.

With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.

A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.

Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.

As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.

This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.

Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE

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Wise Advice on Drafting Definitions and Instructions in Discovery.

17 Sunday Jan 2016

Posted by Celia C. Elwell, RP in Discovery, Federal Rules of Discovery, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions

≈ Comments Off on Wise Advice on Drafting Definitions and Instructions in Discovery.

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Definitions and Objections, Discovery, Prof. Denis Stearns, Sanctions, Seattle University School of Law

Drafting & Using Effective Definitions for Interrogatories (And Other Ways To Make It Much Less Defensible To Object), by Prof. Denis Stearns, Seattle University School of Law, Of Counsel, Marler Clark, LLP, PS

https://www.regonline.com/custImages/260000/269600/CLEPresentation102111DraftingDefinitions-Stearns.pdf

Probably one of the best and most logical explanations on how and when to include Instructions or Definitions in your discovery requests and how to deal with boilerplate objections. Good advice and tips for even the most experienced litigator. -CCE

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Chief Justice Urges Judges To Impose More Management Over Their Cases.

01 Friday Jan 2016

Posted by Celia C. Elwell, RP in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility

≈ Comments Off on Chief Justice Urges Judges To Impose More Management Over Their Cases.

Tags

Case Management, Chief Justice Roberts, Discovery Abuse, Judges, Procedural Posturing

Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog

http://bit.ly/1JkhNf7

Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE

Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases.  Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .

Continue reading →

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Top Ten Checklist For Reviewing Discovery.

02 Saturday May 2015

Posted by Celia C. Elwell, RP in Discovery, Exhibits, Federal Rules of Discovery, Interrogatories, Requests for Admissions, Requests for Production, Trial Tips and Techniques

≈ Comments Off on Top Ten Checklist For Reviewing Discovery.

Tags

Carol Treasure, Discovery Responses, Privilege Log, The Bar Association of San Francisco, Trial Exhibits, Trial Tips & Techniques

Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco

http://www.sfbar.org/basf-bulletin/2012/dec-2012/discovery-responses.aspx

Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .

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Another Way To Number Discovery Documents With Microsoft Word.

21 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Bates Numbering, Discovery, Document Control, Interrogatories, Requests for Admissions, Requests for Production

≈ Comments Off on Another Way To Number Discovery Documents With Microsoft Word.

Tags

Auto-Numbering, Bates Numbering, Discovery, Document Control, Interrogatories, Matt Albrecht, Microsoft Word, Remedial Action Law Blog, Request for Production of Documents, Requests for Admission

Making Numbering Interrogatories and Requests for Production/Admission Easy (with Video), by Matt Albrecht, Remedial Action Law Blog (with hat tip to Sam Glover, Lawyerist Blog, and Patricia Lyons)

http://tinyurl.com/pg8aseh

Not surprisingly, Pat Lyons, RP, from Rhode Island, one of the sharpest paralegals I’ve ever met, knows a neat trick. Thanks, Pat! -CCE

Numbering requests for production and requests for admission is something that legal secretaries and attorneys loathe. It’s something that systems administrators loathe to see take so long to do. It’s an error-prone process that occasionally results in mis-numbering and confusion, and when mistakes occur, it just looks bad.

Microsoft Word has auto-numbering features that can make things like this easier. One way that we use auto-numbering is for legal-style numbered paragraphs. Properly applied to Styles in Word, numbered paragraphs are easy, automatic, and they update themselves. We use multilevel lists to accomplish numbered paragraphs, and it works wonderfully. . . .

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Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Boilerplate Forms, Discovery, Editing, Interrogatories, Legal Writing, Legalese, Plain Language, Readability, Requests for Admissions, Requests for Production

≈ Comments Off on Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”

Tags

Discovery, Discovery Disputes, Discovery Responses, Legal Writing, Oklahoma Bar Journal, U.S. Magistrate Paul J. Cleary

Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)

http://tinyurl.com/mjfawqa

Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma.  He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. 

It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE

“What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967).

There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.

The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .

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Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.

08 Sunday Jun 2014

Posted by Celia C. Elwell, RP in Court Rules, Courts, Depositions, Discovery, E-Discovery, Federal District Court Rules, Federal Rules of Discovery, Interrogatories, Preservation, Requests for Admissions, Requests for Production

≈ Comments Off on Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.

Tags

Court Rules, Federal Rules of Civil Procedure, K&L Gates, Standing Committee

Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.

http://tinyurl.com/myroxzm

The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE

Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.  The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule).  Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.

The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.

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When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques

≈ Comments Off on When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

Tags

Boilerplate Objections, Discovery, Litigation and Trial Blog, Matthew Jarvey, Max Kennerly, Meet and Confer, Motion to Compel, Requests for Admission

Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog

http://tinyurl.com/m7wk9mz

Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).  -CCE

‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .

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Use Requests for Admission For Authentication of Trial Exhibits.

17 Monday Feb 2014

Posted by Celia C. Elwell, RP in Discovery, Exhibits, Requests for Admissions, Trial Tips and Techniques

≈ Comments Off on Use Requests for Admission For Authentication of Trial Exhibits.

Tags

Discovery, Evan Schaeffer, Requests for Admission, The Trial Practice Tips Blog, Trial Exhibits, Trial Tips and Techniques

Using Requests for Admission to Simplify Your Case, by Evan Schaeffer, The Trial Practice Tips Blog

http://tinyurl.com/m3y82eq

I have never understood why this is not used more frequently. It saves time and aggravation for the parties and the court, especially if you want an exhibit to be part of the record. – CCE

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