69 J. Kan. Bar Assn. March, 2 (2000). THE LAWYER'S INFERNO: A GUIDE TO NAVIGATING DISCOVERY DISPUTES.

• Author: By PAUL W. REBEIN and MATTHEW C. MILLER

Kansas Bar Journals

Volume 69.

69 J. Kan. Bar Assn. March, 2 (2000).

THE LAWYER'S INFERNO: A GUIDE TO NAVIGATING DISCOVERY DISPUTES

Journal of the Kansas Bar AssociationVol. 69, March, 2000THE LAWYER'S INFERNO: A GUIDE TO NAVIGATING DISCOVERY DISPUTESIf 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.(fn1)By PAUL W. REBEIN and MATTHEW C. MILLERI. INTRODUCTION

Had Dante Alighieri been born in the late twentieth century, he well might have included the discovery process in Inferno, the first book of his Divine Comedy. Indeed, the discovery rules are so numerous, the opportunities for mistakes or ignorance so abundant, that Dante surely could have filled his nine circles of hell with repeat violators of the Federal Rules of Civil Procedure or their Kansas counterparts. And surely he would have saved the Ninth Circle for the most despised of all lawyers: the contentious, ill-mannered litigator who "engages in discovery disputes without merit or courtesy and who fails to use or contest objections properly."

A lawyer should strive to avoid plunging into the inferno of obstreperous discovery. Sometimes, however, opposing counsel will make such a trip unavoidable. This article is intended to provide a guide for surviving the perilous journey through the nine circles of discovery hell. We strive to be your Virgil and your Beatrice, so that you might emerge, unscathed, from such a voyage.

2. NUMBER OF INTERROGATORIES PERMITTED

   Both Rule 33 and K.S.A. 60-233 provide that any party may serve upon any other party written interrogatories.(fn2) Rule 33 limits the number of interrogatories that may be served upon a party to twenty-five, including all sub-parts,(fn3) unless leave of court is sought to serve additional interrogatories.(fn4) K.S.A. 60-233 does not expressly limit the number of interrogatories available to each party, but many district courts have instituted such a limit by local rule.

   In drafting the federal rules, the Advisory Committee - apparently experienced with discovery hell - anticipated that some attorneys would attempt to circumvent the twenty-five interrogatory limit by including "sub-parts" to questions.(fn5) Accordingly, they specified that sub-parts would count toward the twenty-five interrogatory limit. Distinguishing between a single interrogatory and an interrogatory with sub-parts is easier said than done, and it may properly be viewed as the first step into discovery hell.

   To determine whether an enumerated interrogatory should be counted as a single interrogatory or as an interrogatory with sub-parts (thereby counting as multiple interrogatories), a party must first determine how many "questions" are included within the enumerated interrogatory. A "question" has been defined as an invitation for a specific informational reply. Accordingly, each clause in the enumerated interrogatory that invites a separate reply should be counted as a question.

   The fact that an enumerated interrogatory includes multiple questions does not mean it necessarily includes sub-parts as defined by Rule 26. The relationship between the questions determines whether the enumerated interrogatory will be counted as a single interrogatory or as an interrogatory with sub-parts.

   Courts apply a variety of approaches to determine if the relationship between the questions is logically intimate enough to constitute a single interrogatory. One approach divides a multiple-question interrogatory into two components: a primary question and several secondary questions. A question is primary without regard to significance: the first question of a multi-question interrogatory is the primary question.(fn6) All other questions are secondary. If the secondary questions are "logically or factually subsumed within and necessarily related to the primary question," then the questions constitute a single interrogatory.(fn7) To test if questions meet this requirement, courts consider whether the secondary questions are independent and capable of standing alone. If so, then they are treated as sub-parts and constitute separate interrogatories.(fn8)

   Other courts apply the "discrete bits" standard.(fn9) Under this approach, questions are not perceived to be sub-parts if they seek pieces of information about the same subject.(fn10) Professor Arthur Miller has suggested that a multiple-question interrogatory should be treated as a single interrogatory when the questions have a common theme, and that the breadth of the theme should be "disputable."(fn11) Still other courts apply a much narrower approach, automatically treating each question as a sub-part regardless of the relationship between the inquiries.(fn12)

   Federal district courts in Kansas have not confronted this issue. Dicta in Hilt v. SFC Inc.(fn13) and other cases, however, would seem to support a narrow approach akin to treating each question as a sub-part regardless of the relationship between the inquiries. In Hilt, the Court found that "[e]ach interrogatory should consist of a brief, simple, direct, and unambiguous question, dealing with one point only."(fn14) This can be thought of as the "single point rule." Insofar as the judge's language limits the definition of interrogatory to a question, an interrogatory which includes multiple clauses and invites separate factual replies should be regarded as an interrogatory with sub-parts and counted as more than one interrogatory. The term "single point" suggests that the object of the interrogator's query must be very discrete-somewhat broader than a single, isolated fact, but more limited than an entire subject or theme. Utilizing the single point rule, the District of Kansas may be more inclined to treat multi-question interrogatories as an interrogatory with sub-parts, each counting toward a party's interrogatory limit.

3. OBJECTIONS

   1. GENERAL OBJECTIONS

      It is common in some jurisdictions to assert "general objections" to all discovery requests without specifying how they apply to each request. Kansas courts generally frown upon this practice:

      The Court finds these General Objections worthless beyond delay of the discovery. Plaintiffs might just as well have said they object upon every possible ground which the law may provide, so long as it may conceivably apply to an interrogatory. These ostensible objections say nothing of consequence. They do not constitute objections.(fn15)

      Because of the problems associated with general objections, the authors recommend not using them.

   2. PROPRIETARY

      This is not a particularly strong objection. An objection that a request seeks proprietary information might be grounds for...