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

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