Advanced Topics in Written Civil Discovery.

• Author: Redmond, Robert F., Jr.

THIS article addresses advanced topics in civil discovery in state and federal courts. It presupposes prior experience in written discovery and oral discovery, as well as pretrial procedure. This article addresses written discovery and offers responses in a Frequently Asked Questions ("FAQ") format that may be more accessible to seasoned practitioners. Because state court rules are frequently based on the Federal Rules of Civil Procedure ("FRCP"), (1) this article generally relies on federal authority (with occasional references to state court authority).

1. Written Discovery

   1. Are "General Objections" Acceptable?

      No. "General Objections" are objections that precede substantive written discovery responses and purport to apply to each response. General Objections are meaningless, and they purposely obscure substantive written discovery responses. Those propounding discovery should promptly write to the objecting party and insist that the objecting party withdraw their General Objections. If the party does not do so, the propounding party should include this issue in a Motion to Compel. This unsurprising proposition is recognized by virtually all courts nationwide. (2)

   2. Do Parties Responding to Requests for Production Have an Obligation to Identify the Document Requests to Which the Documents Are Responsive?

      Parties often produce a tremendous volume of uncategorized documents in response to requests for production. This tactic, known as the "document dump," can stymie the ability of the discovering party to review and analyze the produced documents in a meaningful way. Courts have ordered disclosing parties to organize and categorize large volumes of documents and identify the document requests to which each document corresponds:

      [Disclosing parties] are incorrect in thinking they can haphazardly produce documents without reference to which request the documents are produced. To ensure a fair and clear record, [Defendant] will be ordered to Bates Stamp all documents produced to Plaintiff and to indicate which documents correspond to the categories requested. (3) C. How Do You Count Interrogatory Sub-Parts?

      Often, a party will refuse to answer interrogatories by claiming that the interrogatories served exceed the federal limit (25 interrogatories) or a state limit (30 interrogatories). The Rules count "discrete sub-parts" as interrogatories: "Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." (4) But how does one determine if a clause, phrase or adjective is a "discrete subpart" that counts as an additional interrogatory? There are three schools of thought.

      1. The "Related Question" Test

         A slight majority of courts seem to follow the "related question" test. If the clause, phrase, or adjective is logically and factually related to the overall interrogatory, then it is not "discrete" and does not count as a separate interrogatory:

         District courts in the Eleventh Circuit, like most district courts in other circuits, have adopted and applied 'the "related question" test to determine whether the subparts are discrete, asking whether the particular subparts are "logically or factually subsumed within and necessarily related to the primary question." (5) 2. The "Pragmatic Approach" Test

         Many courts espouse the "related question" test but really apply the "pragmatic approach" test. The "pragmatic approach" test is akin to Justice Potter's definition of pornography--the judge knows it when she sees it:

         Perhaps a more pragmatic approach, reminiscent of Justice Stewart's memorable "definition" of pornography, would be to look at the way lawyers draft interrogatories and see if their typical approaches threaten the purpose of the rule by putting together in a single question distinct areas of inquiry that should be kept separate. Thus, once a subpart of an interrogatory introduces a line of inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that precedes it, the subpart must be considered a separate interrogatory no matter how it is designated. Using this analysis, I will now determine which of plaintiff's interrogatories, no matter how they are numbered or otherwise propounded, must be considered more than one interrogatory. (6) The Erfindergemeinschaft court, although ostensibly using the "related question" approach, really adopted the "pragmatic approach": "It is important to acknowledge at the outset that the issue of 'discreteness' cannot reliably be captured by a verbal formula, and that ultimately the issue turns on a case-by-case assessment of the degree to which the subpart is logically related to the primary question in the interrogatory, as opposed to being separate and distinct." (7)

      3. The "Strict Construction" Approach

         As the name suggests, the "strict construction" approach simply counts every subpart and separate clause of an interrogatory whether it is logically related to the main interrogatory or not: "The plain meaning of the language in the rule is clear and unambiguous. Local Rule 190-1(c) requires that every part of an interrogatory be counted and subject to the limitation of 40." (8) The "strict construction" is not widely adopted. Most courts apply the "related question" or "pragmatic approach." Courts in the Fourth Circuit tend to apply the "related question" test:

         In that...