Chapter 10 Written Discovery and Depositions

JurisdictionUnited States
Chapter 10 Written Discovery and Depositions

April Lucas
McGinnis Lochridge LLP
Austin, TX

APRIL LUCAS is a Partner with McGinnis Lochridge in their Austin office. April is a trial attorney working for defendants and plaintiffs in complex civil litigation. Her litigation experience encompasses matters as diverse as oil and gas, contractual disputes, fraud, trade secrets, construction, leases, property law, mining, employment, collections, probate, trusts and estates, family disputes, and wrongful death and personal injury. She devotes a substantial portion of her practice to representing attorneys defending legal malpractice claims. April represents clients in various dispute resolution processes before or in place of litigation, as well as throughout the trial, appeal and collection processes. She has used mediation frequently to reach successful resolutions in trust, probate and family dispute cases, as well as in commercial, contract, and other disputes. Where litigation is needed, she has served as first- and second-chair trial attorney in a variety of matters. In addition to trials, April's work includes preliminary matters such as temporary restraining orders, temporary injunctions and other emergency motions in trial and appellate courts. She has also arbitrated claims to conclusion, collecting on arbitration awards and judgments following trial and appeal. April is a former briefing attorney for the Third Court of Appeals in Austin, Texas. She handles appeals, including motion practice, mandamus filings, briefing, and argument. She has worked on matters before the Supreme Court of Texas and Court of Appeals across the state and the United States Court of Appeals for the Fifth Circuit. Geographically, April primarily practices in Austin, Houston and the Dallas area, although much of her work has been in San Antonio, Laredo, the Rio Grande Valley and across South Texas. April serves as General Counsel and Loss Prevention Partner for McGinnis Lochridge.


Written discovery and oral depositions are useful methods to gather information and prepare for trial. They provide insight into the facts, help develop strategy for proving claims and defenses, and offer advance information about your opponent's strengths and weaknesses. The documents and responses from written discovery can become exhibits to motions, and are often the grounding touchpoints in developing testimony. Oral depositions likewise flesh out important parts of the case, both providing substantive information to support claims or defenses, and offering insight into other critical matters, such as client and witness dynamics and credibility. All of these are helpful datapoints in organizing trial strategy and obtaining, organizing and presenting evidence. Below we discuss some pointers and pitfalls in approaching written discovery and oral depositions.1


Written discovery is a formal written request for a written, sometimes sworn, response, or documents, typically within a set number of days (often thirty). Written discovery often consists of disclosures, requests for production, requests for admission, and interrogatories. When sending or receiving these, start with the applicable rules of civil procedure and local rules. Generally, written discovery requests may include:

Initial disclosures: Some courts require disclosures automatically, whether or not requested. Others may set response deadlines off the date of a request. The Federal Rules, for example, call for initial disclosures by fourteen days after the parties' initial discovery-planning conference, which occurs 21 days before a scheduling conference (set with the court), which is no later than the earlier of 90 days after service of the complaint or sixty days after filing and service of the answer. See FED. R. CIV. P. 26(a)(1)(C), (f); 16(b)(1), (2). Initial disclosures can include names and contact information of parties and anyone with discoverable information, and a description of that knowledge; copies of documents each party intends to use to support its positions, computation of damages, insurance information, information about potential additional parties, and other preliminary information. The Federal Rules and those of some states also have requirements for disclosures of expert testimony and pretrial disclosures at set times or in accordance with scheduling orders. Responses typically do not need to be sworn, but they do need


to be signed by the attorney, and that signature may be making certain representations in accordance with the applicable rules.

Requests for production: These are requests for documents, electronically stored information, and tangible things or inspections. Responses and objections are typically due within 30 days of service of the request; and objections must be made within that period or may be waived. Documents and materials should be produced as kept in the ordinary course of business or as organized by request number. Requests for production may be unlimited in number (but cannot be overly burdensome) or they can be limited in number, in the discovery plan if there is one, or by court order. The requesting party should specifically identify the material or information requested, and as to electronically stored information, the form in which the material should be produced.

Interrogatories: These are questions calling for a written answer by a party relating to matters relevant to a case. Answers must be provided by the party (or, if it's an entity, its officer or agent, based on all information available to the party) separately, in writing, and under oath. Objections and answers must be served within the time to answer, typically within 30 days of service, or objections are waived. The responding person must sign under oath. Records from which the answer to an interrogatory may be determined may be produced in the alternative, if the burden to derive the answer would be the same for the responding or requesting party. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 357 (1978). A very limited number of interrogatories is usually permitted by rule, though that number can be adjusted by the parties' agreement or court order. See FED. R. CIV. P. 33(a)(1) (permitting 25 written interrogatories, including all discrete subparts).

Requests for Admissions: These are requests to admit or deny propositions about factual matters, application of law to fact, or opinions, or genuineness of documents. They require answers or objections within the designated time period, typically 30 days, and the answer must say "admitted," "denied," or explain in detail why the answering party cannot truthfully admit or deny some or all of the request. The non-admitting or -denying party must state it made reasonable inquiry and the information it can readily obtain is insufficient to permit it to admit or deny. If responses and objections are not timely served, the request may be deemed admitted. Matters admitted in response to a request for admission are conclusively established unless the court permits the admission to be withdrawn. If a party improperly fails to admit a request and the requesting party later proves it, the court may order the responding party to pay the reasonable expenses, including attorneys' fees, incurred in making that proof. See Fed. R. Civ. P. 37(c)(2).

Defining the scope of discovery to avoid objections

It is not possible to write a request in a way that will preclude all or even most objections. Courts require objections to be specific and clear, identify the request and why it's objectionable, and not to be obscured by voluminous or repetitive boilerplate. Valid objections can include: that the discovery is irrelevant or overly broad or unduly burdensome, which some courts refer to as "not proportional." Other common objections are that a request is vague and ambiguous or the information is equally available to the requesting party, it's in the wrong form, is cumulative or


duplicative, or seeks confidential information or trade secrets. (Privilege should not be asserted in an objection, but in an assertion of privilege followed by a privilege log). But an objection on these grounds must explain why the request is objectionable. For example, it should specify what makes the request excessive, unnecessary, or vague or confusing. Additionally, the Federal Rules now require the objection to state whether any responsive materials are being withheld on the basis of that objection. FED. R. CIV. P. 34(b)(2)(C). In fact, courts strongly disapprove of objections they consider "boilerplate," especially if in addition to being non-specific, they are inapplicable and repeated in response to multiple requests. See, e.g. Wesley Corp. v. Zoom T. V. Products, LLC, 2018 U.S. Dist. LEXIS 5068, 2018 WL 372700, at *10-12 (E.D. Mich. Jan. 11, 2018). That case criticized insufficiently specific cut-and-pasted objections and held that they were all waived; it ordered responses and awarded attorneys' fees as a sanction. Id. at *10-13.

In this context, it is possible to carefully draft requests that are narrow enough to obtain meaningful responses and minimize meritorious objections.

First, pay close attention to the case and to...

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