10 Sep Written Discovery – Another Challenging Part of the Litigation Process

In the past month we’ve talked about the deposition, one of the most uncomfortable aspects of litigation.  We covered the anatomy of a deposition and some of its more challenging aspects, such as how to handle difficult counsel, uncooperative witnesses and the no show witness.  We also discussed how to force an individual to attend a deposition in your case with a subpoena.

However, there is another critical part of the litigation process that you must understand if you are going to successfully bring a lawsuit—written discovery.

What is Written Discovery?

Written discovery consists of written questions directed to your opponent in the litigation.  The number of questions you can ask the other side are limited, as well as the scope of the questions.  Because of this you should work with an attorney to craft the questions, so that your opponent does not object to your questions and refuse to answer.  There are three different types of written discovery, known as (1) interrogatories, (2) requests for production and (3) requests for admission.

Interrogatories

Interrogatories are written questions that you can serve on your opponent in the lawsuit.  You and your attorney are allowed to serve on your opponent up to 30 written interrogatories, but that number may be modified for “good cause,” especially if you have a complicated lawsuit with many parties.

Keeping within the 35-question cap can be challenging at times, if your questions are broken into smaller questions.  If you go over the 35-question limit, your opponent can object and refuse to answer the questions that exceed the limit.  If the answer to an interrogatory may be derived or ascertained from a document, your opponent is allowed to answer this interrogatory by specifying the document from which answer may be obtained, and give you a reasonable opportunity to examine and copy the record. The answers are to be signed by the person making them, and the objections must be signed by the attorney making them.

If your opponent objects to any of your questions that are within the 35-question limitation, they must state specifically the reasons for objection and must answer the part of the question that is not objectionable, under penalty of perjury.  If your opponent is withholding information, he or she must state this.  However if you serve your opponent with “pattern” interrogatories (i.e., questions pre-approved by the Colorado judicial branch), they cannot object or refuse to answer.

If your opponent sends you the objections within the 35 days he or she has to respond, the objection stays the obligation to answer the objected-to portions of the interrogatory until the court resolves the objection.  Your opponent will not have to file a separate motion for protective order.  If your opponent fails to make his or her objections timely, the objection will be deemed to be waived unless the party’s failure to object is excused by the court for good cause.

Requests for Production

These written questions ask your opponent to produce certain documents or other things in their possession or control, for your inspection or copying.  You can serve 20 document requests on your opponent.  Documents you can ask for include writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, and translated, if necessary, by your opponent through detection devices into reasonably usable form.

Items you can ask your opponent to make available for inspection, copying, testing, or sampling include testing of an automobile tire involved in a products liability action, blood tests, journals, ledgers and personnel files too large to copy.  You can also use requests for production to gain entry upon designated land or other property in the possession or control of your opponent for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.

Your questions must set forth in detail the items to be inspected either by individual item or by category, and describe each item or category with reasonable particularity.  The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

Your opponent must respond to the questions within 35 days after the service of the request.  If an inspection is requested, your opponent must allow for the inspection to be completed no later than the time for inspection stated in the request, or another reasonable time stated in the response or agreed to by you and the opponent.

The response must state, with respect to each item or category, that inspection and related activities will be permitted as requested, or state with specificity the grounds for objecting to the request.  If your opponent produces documents for inspection, they must produce the documents as they are kept in the usual course of business or they must organize and label them to correspond with the categories in your document request.  Your opponent could in the alternative state that it will produce copies of information instead of permitting inspection.

If your opponent objects to any of the requests for production, the objection must state whether any responsive materials are being withheld on the basis of that objection. If objection is made to part of an item or category, the part shall be specified, and your opponent must respond to the portion of the question that is not objectionable.

A timely objection to a request for production stays your opponent’s obligation to produce whatever is the subject of the objection until the court resolves the objection.  As with interrogatories, your opponent does not need to file a separate motion for protective order.

Requests for Admission

These questions ask your opponent to admit or deny statements of fact.  You are allowed to serve up to 20 requests for admission on your opponent.  The questions are usually in the form of true or false, which relate to statements or opinions of fact.  You can also ask your opponent to admit the “genuineness” of any documents described in the request.  If you want your opponent to admit the genuineness of a document, you must serve a copy of the document with the request for admission.

Your opponent has 35 days to respond to the request.  If your opponent does not respond to the request within that time frame, and he or she has not objected to or otherwise gotten more time to respond, the matter is admitted.  An admission by your opponent to a key fact could have a huge impact on your success in the litigation.  However any admission made by your opponent in your lawsuit is not an admission by him for any other purpose in any other proceeding.

If your opponent objects to a request for admission, your opponent must state the basis for the objection, and the remainder of the response must specifically admit or deny the matter or set forth in detail the reasons why your opponent cannot truthfully admit or deny the matter.  “Lack of information or knowledge” is not a valid objection unless your opponent states it made a reasonable inquiry and that despite the inquiry he was unable to admit or deny.

What if Your Opponent Refuses To Answer Questions that you Have Determined Are Proper?

If your opponent improperly refuses to answer a proper question, you and your attorney may move the court for an order to determine the sufficiency of the answer or objections.  Unless the court determines that an objection is justified, the court will order your opponent to answer the question, and could order that your opponent pay your expenses for having to bring the motion.

Written discovery can be very time consuming and complicated.  However if done properly it could result in a win for your case.  If you need help planning out written discovery for your lawsuit, contact Edwards Law today for a free consultation to strategize the written discovery process.