Weapon Selection and Attack

• Author: Ashley S. Lipson
• Pages: 136-167

4-134

The instruments of battle are valuable

only if one knows how to use them.

– Charles Ardant Du Picq

Chapter 4

Weapon Selection and Attack

§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

4-135 weapOn selectiOn and attack §4.10

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 weap-

onry, 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 dis-

covery 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 witness-

es 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 considered. This means that

the Request For Admissions might best lead the charge.

Requests For Admissions are akin to the mild pre-

liminary skirmish, typically used for minor scouting

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 weap-

on 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

§4.11 Guerrilla discOvery 4-136

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 combined2.1

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-dramatically referred to as

the “death star”2.2 approach, the deposition would be

used to obtain sufficient information about the docu-

ments 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

themselves; 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 sub-

mitted 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 admit-

ted all of them.3 This particular is generally under-utilized.

Attorneys often limit their use to purposes of putting to

rest undisputed facts, forgetting that the enemy’s admis-

sion 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 foundations 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 designat-

ed 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 weapon is

treated separately because of the independent treatment

and characteristics of documents. The items which are

the subject of this category, unlike documents, 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 mental or phys-

ical 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, specifying a

time, date and place, you can question your enemy face

to face, using a variety of recording devices. Deposi-

tions 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