Drafting Written Discovery

Concepts and checklists for preparing well-drafted written discovery.

The Purpose of Written Discovery

Written discovery typically precedes oral discovery (depositions), though occasionally very early depositions may be tactically advisable (such as when it is necessary to quickly learn or pin down key testimony before a witness departs a jurisdiction, or before opposing counsel fully understands a matter or issue and has time to prepare a client or witness).

There are two types of written discovery: (1) that which is propounded upon other parties in a civil action, consisting of interrogatories, requests for production and requests for admissions; and (2) that which is propounded upon non-parties, consisting of subpoenas duces tecum (subpoenas to produce records). The rules and caselaw recognize other types of written discovery, such as deposition upon written examination and form questionnaires, but in these are rarely used.

Power Tool: Well-drafted written discovery, including requests for admissions, can have a massive impact on how your case turns out, particularly when coupled with skillful motions practice.

When written discovery is conducted skillfully, it equips a trial lawyer with more information and documentation to prepare for and complete oral discovery. Moreover, based upon the duty of seasonably supplementation of discovery responses, the early issuance of thorough and carefully drafted written discovery can create a barrier to prevent opposing counsel from being able to use evidence at trial that was not disclosed in a timely fashion even when it is listed properly in a final trial exhibit list. This is why our Case Planning Checklists and related Daylite activity sets (our pre-designed task lists based upon the checklists) prod us to review and supplement our own written discovery responses, and to consider the possibility of seeking supplementation (as opposed to moving to exclude undisclosed or late-disclosed evidence).

Guidelines For Drafting

Caveat regarding pattern discovery requests and forms. Drafting written discovery requires careful forethought. While even a hastily issued set of form interrogatories may be far better than nothing, it is vastly inferior to a well-thought-out set of written discovery requests that contain requests for admission with negative parallel interrogatories and requests for production. With this in mind, less experienced practitioners often ask us if we have examples of written discovery they can use. The problem with this request is that the attorney is sometimes looking for sources of questions, rather than examples of concepts. An attorney looking for sources of questions is not using his or her own analytical skills to draft questions that are tailored to the case. The material set forth here is designed to aid in that thought process.

Thinking through a case in its earliest stages is part of what is required under our Case Planning Procedure, which explains how to develop a Theory of the Case and other early case planning that leads to trial planning. The process of thinking through a case in its early stages requires that an attorney first study with care all information obtained at the outset of a case, including the client’s materials, any existing pleadings and other records that are available. With that information in mind, the attorney then commences the interrogative process, which begins with the attorney asking himself or herself questions, such as:

Ask yourself questions:

  • What documents are likely to exist that could be relevant to this case?
    • What are the elements of the case? (List them from jury instructions or case law.)
    • What does the chronology of events as presently known suggest is missing?
    • What types of communications may have occurred during the relevant time period?
    • Who might have been involved in those communications?
    • What types of public filings or public records might exist related to the parties or claims?
      • Is statutory, regulatory or privately enforced compliance relevant to any of the activities at issue?
      • What documentation or proof of compliance would likely exist?
      • What agencies have authority or interest in the transactions or events at issue?
      • Would interaction with government agencies (such as the CPSC, FAA, SEC, FDA, NHSTA, DOT, etc.) have led to the creation of records?
      • Was law enforcement involved, and if so, was an investigation performed?
    • When did various events take place?
    • How is the timing of events known or proven?
    • Are there design drawings?
    • Are there patents, trademarks or copyrights on file?
    • Are there material data safety sheets available?
    • Was there a Root Cause Analysis performed?
    • Was a chemical analysis performed?
    • Was there a repair estimate or repair records?
    • Were insurance claims filed (first party medical or property, third party, indemnity, surety or other insurance)?
    • Was a warranty claim made?
    • Was notice (of any kind) given or required, such as notice of breach of warranty or contract?
    • Was an election made under the law or contractual provision?
    • Was there an internal investigation?
    • Were reports filed?
    • Were logs kept?
    • Were travel records kept?
    • Are credit cards, bank records, phone records or mileage records available?
    • Was anyone charged or prosecuted with a crime or civil  or administrative violation?
    • How does the opponent intend to prove key facts (as listed under elements, above)?
    • What financial records or financial tracing (i.e., forensic accounting) may be involved or possible to perform?
  • Which of those documents are likely to be in the hands of, or available to, opposing counsel?
  • Social media: check for everything?
  • There are cameras everywhere—might any of the events of the case have been recorded?
    • Who was in the vicinity who may have been recording on a phone camera?
  • Were any calls recorded?
  • Did anyone keep a diary or other private record?
  • Would an adverse incident report of any kind have been generated?
  • Were there any other complaints?
  • Who would maintain the records (for each possible record-holder or record generator, separately listed)?
  • Were any automated or computerized records created by systems involved in the occurrences?
  • Were any witness names taken down by anyone?
    • Who might have taken down witness names other than the parties and their attorneys?
  • Where would physical or forensic evidence be today?
  • Are there photos?
  • Were there scars, marks or trace evidence created or deposited?
  • Were professional service providers (doctors, therapists, consultants, engineers, cleaners, contractors, etc.) involved?
  • What kind of training would involved personnel have received?
    • Were there records of that training?
    • Who administered that training?
    • Were certificates, licenses or diplomas issued?
    • Were awards given?

Dig deep. For each question above, you could think of ten more, provided you are really thinking and working deeply, rather than skimming for easy answers. Think hard! Ask yourself more questions! Jot notes of your thought process, either in a Word document or on a piece of paper or on the dry-erase wall in our Media Room. Lawyers who think harder and work harder and recognize patterns and missing pieces—and then formulate and execute tasks based upon that thinking—tend to be much more successful than others.