Weapon Selection and Attack

• Author: Ashley S. Lipson
• Pages: 163-196

The instruments of battle are valuable

only if one knows how to use them.

- Charles Ardant Du Picq

Chapter 4

Weapon Selection and Attack

Table of Contents

§4.10 Weapon Selection

§4.11 Requests for Admissions

§4.12 Interrogatories

§4.13 Notices for Production

§4.14 Demands for Inspection

§4.15 Physical and Mental Examinations

§4.16 Depositions

§4.20 Attack

§4.21 Overview

§4.22 Federal Rule 26

§4.23 State Counterparts

§4.24 Presuit Discovery

§4.25 Post-Trial Discovery

§4.30 The Forms That You Need

Form 4.1 Report Outlining Discovery Plan

Form 4.2 Combined Discovery Request

Form 4.1(a) Model Discovery Plan

§4.10 Guerrilla Discovery 4-2

1 See infra, §§4.11 - 4.16.

2 In fact, The Request For Admissions is powerful weapon whose force is typically underestimated. See Chapter 5.

§4.10 Weapon Selection

With respect to the deployment of discovery

weaponry, the selection, timing and sequencing of

the devices are all critical. For these strategic factors,

there is no all-encompassing rule or order that applies

to every case and circumstance; on the contrary,

much will depend upon individual considerations of

cost, speed and those few remnants of the element of

surprise that modern discovery rules have yet to gut.1

Everyone has a favorite weapon; but as we

discussed in Chapter 1, there is a preferred order

and sequence that requires you to put aside personal

preferences.

This is not to suggest that the order listed on the

Weapons Chart must be followed in all cases. On the

contrary, there may be instances where an immediate

deposition may be warranted, particularly where wit-

nesses are elderly or at risk of being unavailable for

trial. In other instances, where a surprise factor may

be important, an early deposition may be best. Unless,

however, there is a specific strategic reason or plan

indicating otherwise, the order of weapon deployment

listed in the Weapons Chart should seriously be con-

sidered. This means that the Request For Admissions

might best lead the charge.

Requests For Admissions are akin to the mild

preliminary skirmish, typically used for minor scout-

ing missions or limited engagements designed to

test the enemy’s resolve.2 By way of contrast, the

Deposition is hand-to-hand, face-to-face combat, and

more dangerous.

The Set of Interrogatories, on the other hand, is

a weapon that permits you to sit back in your office

chair, safely behind your office bunker and shoot

rockets and missiles at the enemy; it is my personal

favorite. Interrogatories help provide the minimum

Work-to-Pain ratio. In other words, for the least

amount of work, effort and expense, you can sit back

and inflict the most pain and work on your enemy.

Weapon Your Cost Enemy

Cost

Potential for

Evasion

Unique Advantage Key Disadvantage

Request for

Admissions

$ $$ Moderate Has self-executing

consequences

Easily evaded unless

skillfully drafted

Interrogatories $ $$ High Is inexpensive and

very flexible

Often evaded unless

skillfully drafted

Notice for

Production $ $$$ High

Requires enemy to

locate and produce

information

Can make you victim

of live burial

Notice for

Inspection

$$ $$ Low Permits first-hand

inspection

Expert assistance may

be required

Physical

or Mental

Examination

$$ $$ Low Enemy gets poked and

stuck

Normally requires

motion and showing of

“good cause.”

Depositions $$$$ $$$$ Moderate Allows face-to-face

cross-examination

Judge is not present to

prevent evasion

WEAPONS CHART

4-3 weapon selection anD attack §4.11

2.1 See, for example, Form 4.2.

2.2 The term, derived from the “Star Wars” films, seems to overstate the impact of device.

2.3 See infra, §6.33[2].

3 See Form 5.2.

4 See generally, Chapter 5.

5 See Form 6.14.

6 See generally, Chapter 6.

7 Sometimes termed a “Demand” or “Request” for Production.

8 See generally, Chapter 7.

9 See, for example, Rule 34 of the Federal Rules of Civil Procedure, titled: “Production of Documents and Things and Entry

Upon Land for Inspection and Other Purposes.”

10 See Chapter 8.

11 See generally, Chapter 9.

12 See generally, Chapter 10.

For certain types of cases, some prefer a com-

bined2.1 or “combination” discovery request. When

dealing with a corporate defendant, for example, a

deposition might be used in tandem with a notice for

the production of documents. Sometimes over-dra-

matically referred to as the “death star”2.2 approach,

the deposition would be used to obtain sufficient

information about the documents so that they might be

better identified in the Notice for Production. On the

other hand, following the basic order in the Weapons

chart, suggests, that interrogatories might better be

used to identify both the person who has knowledge

of the relevant documents and the documents them-

selves; this person is sometimes referred to as the

PMK (Person Most Knowledgeable).2.3

§4.11 Requests For Admissions

A numbered list of statements and contentions is

submitted to the enemy; the enemy must then, under

oath, either admit or deny the statements. If the enemy

ignores your statements altogether, it may be held to

have admitted all of them.3 This particular is gener-

ally under-utilized. Attorneys often limit their use to

purposes of putting to rest undisputed facts, forgetting

that the enemy’s admission is the most powerful form

of concession.4

§4.12 Interrogatories

A series of numbered questions is submitted

to the enemy, which the enemy must answer under

oath5 This is a powerful weapon for laying founda-

tions for the admissibility of evidence at a later date.

It is also a potent tool for identifying and pinpointing

the existence, custody and location of tangible items,

documents and other evidence that might later be the

subject of other discovery weapons.6

§4.13 Notices for Production

As used in this treatise, the Notice for Production7

refers to a request or demand that the enemy produce

for inspection and photocopying your specifically

designated set of documents.8

§4.14 Demands for Inspection

This device is similar to the preceding weapon.

In fact, the same rules often apply to both.9 The weap-

on is treated separately because of the independent

treatment and characteristics of documents. The items

which are the subject of this category, unlike docu-

ments, cannot be photocopied and turned over; instead

they must be visually inspected and perhaps tested.10

§4.15 Physical and Mental Examinations

Where there is an issue with respect to the men-

tal or physical condition of a party, you make a motion

and “for good cause shown” obtain an examination by

a licensed examiner.11

§4.16 Depositions

By submitting a Notice of Deposition, speci-

fying a time, date and place, you can question your

enemy face to face, using a variety of recording

devices. Depositions permit you to engage in the

cross-examination of the enemy before the trial even

starts. It is an important device for generating and

preserving testimony.12