Discovery Requests and Responses Part 2

As a #biglaw litigation associate you'll routinely draft discovery requests and/or discovery responses.

Earlier today, I defined discovery and the types of written discovery requests.

Now that we have a sense of what we're doing here (drafting or responding to interrogatories, requests for admission, and requests for production of documents), what's next?

First, a note: discovery requests have a format:

✔ Case caption or heading;

✔ Introductory statement explaining which party is serving discovery (requests or responses), to whom, and what rules apply;

✔ Instructions on how to respond;

✔ Definitions that apply (to the requests and the case at hand).

If you're responding to discovery requests, your draft will include the first two points, as well as (if applicable) general objections to the propounded discovery requests.

Before drafting, gather the contextual documents:

📃 Complaint, answer (and affirmative defenses), counterclaim (if applicable), and answer to the counterclaim (with affirmative defenses)—review all pleadings, noting big themes for discovery.

📃 Dispositive motion briefing (if any)—does this shed light on your or the other side’s theory of the case?

📃 Jury instructions—familiarize yourself with the elements of each claim and what supporting evidence is required to prove each element.

📃 Pre-litigation communications (or negotiations)—again looking for themes and references to documents, communications, or witnesses.

📃 Civil procedure statutes and local rules governing discovery requests (Is there a limit to the number of requests you can serve or topics you can cover?).

Next, find samples and templates.

Use your firm’s document system and search for examples, such as discovery requests (and responses):

✍ Drafted by the partner and senior associates on the file;

✍ Filed in cases in the same jurisdiction; and

✍ Collected by outside sources (WestLaw, Practical Law, Google).

In the beginning, there is no such thing as having too many samples.

You can (should) save them to your local “samples” folder and start a database of:

⚖ Common instructions and definitions;

⚖ Commons objections (general or specific, based on local practice (note: general objections aren’t acceptable everywhere)); and

⚖ Common requests (by claim; so, for example, can you find some standard “breach of contract” or "fraudulent misrepresentation" discovery requests?).

Spending this time up front will save you time down the road.

Collecting this now will put you in a better spot when you undoubtedly need to review something for this file or create similar requests/responses for another case.

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