Weapon Selection and Attack

AuthorAshley S. Lipson
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
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
Potential for
Unique Advantage Key Disadvantage
Request for
$ $$ Moderate Has self-executing
Easily evaded unless
skillfully drafted
Interrogatories $ $$ High Is inexpensive and
very flexible
Often evaded unless
skillfully drafted
Notice for
Production $ $$$ High
Requires enemy to
locate and produce
Can make you victim
of live burial
Notice for
$$ $$ Low Permits first-hand
Expert assistance may
be required
or Mental
$$ $$ Low Enemy gets poked and
Normally requires
motion and showing of
“good cause.”
Depositions $$$$ $$$$ Moderate Allows face-to-face
Judge is not present to
prevent evasion
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 star2.2 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

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