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HOW TO DRAFT EFFECTIVE DISCOVERY
IN A DISSOLUTION CASE
David L. Jungmann & Melissa S. Larson
Iowa State Bar Association Family Law Conference
October 24, 2013
A. Purpose of Discovery.
The purpose of discovery is to avoid surprise and to permit issues to become
defined and reduced before trial. Grace v. 3-D Mfg. Co., Inc., 522 N.W.2d 312, 320
(Iowa Ct. App. 1994). Discovery should expedite disposition of litigation by educating
the parties in advance of trial of the real value of their claims and defenses. Barks v.
White, 365 N.W.2d 640, 643 (Iowa Ct. App. 1985).
Iowa R.C.P. 1.501(2). The rules of discovery are to be “liberally construed and
shall be enforced to provide the parties with access to all relevant facts. Discovery shall
be conducted in good faith, and responses to discovery requests, however made, shall
fairly address and meet the substance of the request.”
B. Scope of Discovery. See Iowa R.C.P. 1.503.
1. Any matter, not privileged, which is relevant to the subject matter, . .
whether it relates to the claim or defense of either party, including its
existence, description, nature, custody, condition and location, of any
books, documents or other tangible things and the identity and location of
persons having knowledge of any discoverable matter.
“Reasonably calculated to lead to the discovery of admissible evidence.”
Iowa R.C.P. 1.503(1).
2. Privileged matters.
a. Professional privileges: attorney – client; physician – patient;
therapist – patient; clergyman – penitent; accountant – client;
journalist – news source.
b. Business and administrative privileges: trade secrets and business
c. Criminal privilege against self-incrimination.
The privilege must be stated and a description provided of the nature of the
documents, communications, or things not produced or disclosed as will enable the other
party to assess the applicability of the privilege or protection. Iowa R.C.P.1.503(5).
3. Trial preparation materials. Unless the information is discoverable under
Iowa R.C.P. 1.508 (as expert witness information), documents and tangible
things prepared in anticipation of litigation or for trial for or by the other
party’s representative may only be discovered upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the case and that the party seeking discovery is unable
without undue hardship to obtain the substantial equivalent of the materials
by other means. The most protected matters are the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
A party cannot refuse to answer interrogatories on the ground that the information
sought is solely within the knowledge of his/her attorney. Hickman v. Taylor, 329
U.S. 495, 504 (1947).
4. Protective orders. Iowa R.C.P. 1.504.
a. Allows the court to make any order which justice requires to
protect a party or person from annoyance, embarrassment
oppression or undue burden or expense.
b. Allows the court to limit the frequency of use: if the discovery
sought is, or may be obtainable from some other source that is
more convenient, less burdensome or less expensive; if the party has
already had ample opportunity by discovery to obtain the
information; or if the burden outweighs the benefit.
c. If the protective order is denied, the court may enter an order
apportioning the expenses of obtaining the discovery, including
attorney fees. Iowa R.C.P. 1.504(3); 1.517(1)(d)
C. The Objectives of Discovery.
1. To capture and preserve evidence and information necessary to establish
your claims and defenses.
2. To secure admissions.
3. To settle issues and disputes.
4. To prepare for impeachment of the opposing party and their key witnesses.
5. To perpetuate important testimony.
6. To identify witnesses and evidence for and against your case.
7. To authenticate documents. Ashley S. Lipson, Guerrilla Discovery, §1.40.
D. Advantages and Disadvantages of Using Written Interrogatories
a. Depositions are effective for obtaining spontaneous answers, but the
answers are restricted to the deponent’s personal knowledge.
Interrogatories call for the collective knowledge of the opponent and
b. Interrogatories are preferable to depositions for identifying
witnesses, documents, the dates and substance of transactions and
conversations, or if the information sought can be obtained only by
reference to several documents.
c. Written interrogatories can frequently induce intelligent settlement
discussions by establishing the contentions of the parties and
exposing the strengths and weaknesses of their respective cases.
d. Interrogatories are inexpensive to prepare and forces the other party
to do the work.
a. Answers to contention or opinion interrogatories are often the
calculated response of an attorney.
b. Answering a comprehensive set of interrogatories forces an
opponent to prepare his case.
c. Interrogatories can only be directed to a party.
d. The greatest limitation upon the effective use of written
interrogatories is the ability of attorneys to avoid providing any
information which they feel will be damaging to the interests of
their clients. This limitation is manifested in various forms:
objections based upon allegations of privilege, work product,
undue burden, irrelevancy; and objections that the interrogatories
are vague, ambiguous and incapable of being answered; and
answers that are unresponsive or are arguably responsive but self-
serving. Adrian P. Schoone and Edward L. Miner, Marquette Law
Review, The Effective Use of Written Interrogatories, 60 Marq. L.
Rev. 29 (1976). Available at http://scholarship.law.marquette.edu/
E. Drafting Considerations.
1. Instructions inform the party of their duties under the Rules of Civil
Procedure and lay a foundation for a later showing that failure to make
discovery was willful and deliberate.
a. The duty to conduct a reasonable investigation. Lack of personal
knowledge is not adequate if the party could obtain the information
by reasonable inquiry. A recital of the attempts made to secure the
information should be provided. Breeland v. Bethlehem Steel Co.,
179 F. Supp. 464, 467 (S.D.N.Y. 1959). A party cannot refuse to
answer interrogatories on the ground that the information sought is
solely within the knowledge of his/her attorney. Hickman v. Taylor,
329 U.S. 495, 504 (1947).
Example: “In answering these interrogatories the respondent must furnish all
requested information, not subject to a valid objection, that is known by, possessed
by, or available to him or any of his attorneys.”
b. The duty to answer each interrogatory to the fullest extent possible,
despite the fact that it may be impossible to provide all of the
Example: “If the Respondent is unable to answer fully any of these
interrogatories, s/he must answer them to the fullest extent possible and specify
the reason(s) for his/her inability to answer the remainder, and stating whatever
information, knowledge, or belief s/he has concerning the unanswerable portion.
An evasive or incomplete answer is deemed to be a failure to answer and may
render the Respondent liable for the expenses of a motion to compel discovery.”
c. The duty to supplement responses. Iowa R.C.P. 1.503(4).
Example: “The Respondent must supplement his/her responses to these
interrogatories when so requested by the Petitioner prior to trial. In addition,
without being requested to do so by the Petitioner, the Respondent must timely
supplement the answers to all interrogatories requesting the identification of
persons having knowledge of discoverable matters and the identification of
persons expected to be called as expert witnesses at trial. Without being requested
to do so by the Petitioner, the Respondent must also amend any answer when it is
discovered to have been incorrect when made or when it is discovered to be no
longer true and circumstances are such that a failure to supplement is in substance
a knowing concealment.”
d. Definitions are used also to clarify the exact nature of the
information which is to be provided in the answers, to clarify and
elaborate potentially vague and confusing terms and phrases, and to
avoid unnecessary repetition.
An example of a definition that would clarify vague terms: “Document” refers to
any paper, book, record, electronically stored information, letter, memorandum, contract,
agreement, invoice, receipt, canceled check, drawing, sketch, or other similar materials
which contain any verbal, graphic, or pictorial information.
2. Avoid shotgun requests and boilerplate terminology not tailored to the
For example, an interrogatory requesting the identity of “all persons having
knowledge of discoverable matter” may be the language of the Rule of Civil
Procedure, but it should be objected to as too broad and general as to permit
answer without undue burden and expense. Romero v. California State Labor
Commissioner, 276 Cal. App.2d 787, 81 Cal. Rptr. 281 (1969).
Interrogatories that do not reasonably restrict the inquiry to a relevant time period
would likewise be too broad.
3. Identification of persons. Many people plead ignorance to these requests
despite the fact that the information is available to their attorneys.
Statements given by a party or a witness must be provided to them.
4. Identification of documents. If an interrogatory merely inquires as to the
existence, nature and location of a relevant, non-privileged document, then
it must be answered. A response that only specifies the records from which
the information may be derived is only valid where the burden of deriving
or ascertaining the answer is substantially the same for the party serving the
interrogatory as for the party served.
5. Contention interrogatories. “Asking a party at a deposition for his/her
contentions and conclusions of law as related to fact will usually be useless.
In the vast majority of situations the deposed party would be unable to
relate the facts to relevant legal conclusions. Since a party’s attorney
cannot be deposed, interrogatories are the only way to get the information.”
Comment, Civil Procedure – Opinion Interrogatories after the 1970
Amendment to Federal Rule 33(b), N.C.L. Rev. 695, 699 (1975). However,
there are limits to the usefulness of contention and opinion interrogatories.
Therefore, contention interrogatories have to be drafted with care to avoid
self-serving answers. Confine the interrogatory to specific points of issue.
Use them to narrow or sharpen an issue. Moreover, in many situations it is
preferable to phrase the question such that the answering party must
respond with a “yes” or a “no.”
Example: “Do you claim that Petitioner has threatened, abused, neglected, denied
critical care or endangered any child? If your answer is anything other than an
unqualified “No,” then please state the details of each alleged incident of abuse or
neglect, including but not limited to the following:
a. The date of each such incident of abuse or neglect.
b. The nature and details of each alleged threat, abuse, neglect, denial of
critical care or endangerment.
c. All documents, photographs, video or audio recordings evidencing or
reporting such threat, abuse, neglect, and denial of critical care or
d. The name, address, telephone number and relationship to you of each
person having personal knowledge of any fact asserted by you in your
answer to this interrogatory and state which parts of your answer of which
each person has personal knowledge.”
In determining whether such interrogatories must be answered may be gauged by
the question: “Would an answer serve any substantial purpose?” Taylor v. Sound
Steamship Lines, Inc., 100 F. Supp. 388 (D. Conn. 1951).
Test question: What are the pros and cons of the following interrogatory?
Please describe your minor children concerning the following characteristics:
c. capacity and interest to provide the following needs for your child,
including in detail her relationship with your minor child as it pertains to:
8. Interpersonal relationships
F. Answering Interrogatories
1. Objections to Interrogatories. Objections must be filed within the time
prescribed for their answer. Schaap v. Chicago & N.W.R. Co., 261 Iowa
646, 155 N.W.2d 531 (1968). The objection must be specific enough to
point out the reason why an interrogatory need not be answered, especially
if the objection is based on privilege. Stover v. Central Broadcasting Co.,
247 Iowa 1325, 78 N.W.2d 1 (1956). It is not a valid objection to an
interrogatory that the information sought is within the knowledge of the
interrogating party. Barks v. White, 365 N.W.2d 640 (Iowa Ct. App.
2. Vague or Overbroad Interrogatories. A court would usually sustain an
objection. However, often the answering party is aware of the substance of
the request. It is sometimes advisable to qualify the question prior to
Example: “This interrogatory, as phrased, requests the identification of literally
hundreds of documents, including defendant’s answer to the petition. To fully
answer it would require much time and expense and would constitute an undue
burden upon the respondent. However, the respondent is willing to identify at this
time those documents which s/he presently relies upon in support of the above
described contention. The respondent has not completed review of all possible
documents relevant to this subject matter and, consequently, the following
information is being provided without prejudice to the right of the respondent to
produce as evidence at trial any subsequently discovered or subsequently drafted
documents.” (Then identify documents which are presently relied upon.) Adrian
P. Schoone and Edward L. Miner, The Effective Use of Written Interrogatories, 60
Marq. L. Rev. 50 (1976).
3. Fed. Rule 26(a)(1)(E): Basis for Initial Disclosure; Unacceptable Excuses.
A party must make its initial disclosures based on the information then
reasonably available to it. A party is not excused from making its
disclosures because it has not fully investigated the case or because it
challenges the sufficiency of another party's disclosures or because another
party has not made its disclosures.
4. Answering Contention Interrogatories.
a. First Principle. Under ordinary circumstances, the answers to
such interrogatories cannot limit proof at trial. Advisory Committee
Note to Federal Rule 33(b). Beeck v. Kapalis, 302 N.W.2d 90 (Iowa
1980). “The principal question raised with respect to the cases
permitting such interrogatories is whether they introduce undesirable
aspects of the prior pleading practice, whereby parties were chained
to misconceived contentions or theories, and ultimate determination
on the merits was frustrated. . . . However, in exceptional
circumstances reliance on an answer may cause such prejudice that
the court will hold the answering party bound to his answer, e.g.,
Zielinkski v. Philadelphia Piers, Inc., 139 F.Supp. 408 (E.D. Pa.
b. Second Principle. The court may order that such an
interrogatory need not be answered until after designated discovery
has been completed. See Fed. Rule 33(a)(2).
Example: What do you believe would be a fair and equitable division of the
property and debts in this action? Please use the attached spreadsheet in
responding to this Interrogatory.
Property/Debt Value Award to Award to Basis of Claim
5. Option to produce business records. Iowa R.C.P. 1.509(3).
G. Enforcing Discovery.
1. Compelling discovery is a three step process. You must first make an
attempt to resolve discovery issues prior to involvement of the court.
you must then file a motion to compel discovery and get an order directing
compliance by a date certain. Finally, you must file a second motion to
request sanctions. Iowa R.C.P. 1.517(1).
“Any order granting a motion made under this rule shall include a statement that a
failure to comply with the order may result in the imposition of sanctions pursuant to rule
2. Sanctions the court may impose. Iowa R.C.P. 1.517(2). The court can
designate certain facts as established. It can refuse to allow the disobedient
party to support or oppose designated claims or defenses. It can strike
pleadings. It can find contempt of court. Attorney fees and expenses may
be awarded to either the proponent or the objector to the interrogatory.
H. When to Use a Particular Discovery Method.
1. First, get as much information you can without engaging in formal
2. Mandatory disclosure of basic financial information per the Case
If you are in a district like ours, the courts have been issuing Case Requirements
Orders in dissolution cases. In ours, within 60 days from filing suit, the parties are
required to exchange documents evidencing income, certain expenses, assets and debts,
but some litigants don’t comply. A few days later when you file your Child Support
Guidelines Worksheet and Affidavit of Financial Status, you might add the following to
your worksheet and affidavit:
“This worksheet is a Preliminary Draft. Respondent’s income cannot be
verified easily, and he has not complied with the disclosure requirements of the Family
Law Case Requirements Order entered May 8, 2013, specifically those due August 8,
3. You will need to identify the information and evidence you already have
and what specific information and evidence you need.
4. In planning your discovery you should identify:
a. the Type of evidence,
b the Stage of the evidence at this time;
c. the Importance of the evidence to establishment of a fact ;
d. the name, address and phone number of the Custodian of the
e. the specific Legal or Factual Issue to which the information or
evidence relates; and
f. then decide upon the Preferred Discovery Tool.
I. Other Practice Pointers.
1. Because the other party has at least 30 days to compose their response you
expect them to be sometimes evasive, so the interrogatories, requests for
production or admission have to be drawn tightly. You want to force them
to answer a question they don’t want to answer right now. Be precise as to
the information you want.
2. If the requested documents to be produced are voluminous, you can
respond by informing the other party that the documents are in your office
and Respondent’s attorney may view and copy such materials as they may
need at your office. Iowa R.C.P.1.509(3).
3. Although some information is protected by privilege, there are usually good
reasons for getting at least some of the information that may negate the
need to use the privilege.
Example: “With regard to your physical and mental health please:
a. State whether you currently use tobacco, alcohol, prescription drugs
or illegal drugs, and if your answer to any of these types of drugs is
anything other than an unqualified “No,”, then state the nature and
amount of each typically consumed in an average week.
b. State whether you have at any time within the last ten years used
tobacco, alcohol, prescription drugs or illegal drugs. If so, then state
the dates, inclusive that you used each such substance and the nature
and amount of each typically consumed in an average week during
c. State whether you wear eyeglasses, use a hearing aide or other
medical apparatus, and if so, state the type of apparatus and the
average annual cost to you for such devices.
d. State whether you have ever broken any bones, had surgery, been
hospitalized for any physical or mental condition.
e. State in narrative fashion what happened to cause you to have
broken bones, surgery and/or hospitalization as to each incident,
including but not limited to the date of each incident, the date such
condition was diagnosed, the place of the incident causing injury,
and the identity and contact information for the treating physician,
clinic and/or hospital.
f. Identify any recurrent problems for which you continue to obtain
treatment or medicate and as to each describe in narrative fashion the
symptoms of the problem, the diagnosis, the specific treatment and
medications used, the frequency of medical review or examination
of such condition, and the prognosis of the condition for the future.
g. State the date, the name of the payee, the nature of the expense (e.g.
prescription drugs, doctor’s care, etc.) and the amount of each out-
of-pocket (unreimbursed) medical expense you have incurred on
account of your medical condition and care in the last twelve
4. All discovery should be tailored to the needs of your case.
5. You are permitted to organize the related questions around a single topic.
Together with all discreet subparts, this will still only count as one
Example: Please identify all schools that you have attended since your freshman
year of high school, the dates (inclusive) of your attendance, highest level of
education completed (e.g. 12th grade), major courses of study, honors received,
and the degree or certificate earned. If you did not complete regular public or
parochial school, then state:
a. the last full grade of regular public or parochial school completed
b. the date you quit regular public or parochial school
c. the reasons you quit regular public or parochial school
d. the date you began formal schooling to attain your G.E.D.
e. the date you completed formal schooling to attain your G.E.D.
f. the place you attended classes to obtain your G.E.D.
6. Organize your discovery requests around primary topics, such as the party’s
education, career, criminal history, child custody or schedules for care of
the children, income, property and debts, spousal support, etc.
7. Include contention interrogatories to establish facts and positions on key
8. Seek identification of everyone having any information or knowledge of
facts specific to the issue.
J. Requests for Production
1. Not limited to number or frequency of use. See I.R.C.P. 1.512.
2. Can only be used to obtain information from parties to the action. I.R.C.P.
3. Can be used to discover “tangible things” (“real evidence”) as well as
documents. I.R.C.P. 1.512(1)(b).
4. Documents and things can be requested by individual item or by category.
The key is to describe the documents and things with “reasonable
particularity” so that you get what you want, little more than you need, and
5. A party is deemed to have “control” if he or she has the right or ability to
obtain possession. Riddell Sports v. Brooks, 158 F.R.D. 555 (S.D.N.Y.
6. Electronically stored information is presumed to be included in a request
7. Since July 1, 2008 obtaining medical records or images is governed by
Iowa Code §622.10(4A). A request by an adverse party must be
accompanied by a legally-sufficient patient’s waiver.
K. Spoliation and Duties to Preserve Evidence.
Spoliation is the intentional destruction of discoverable matter by a party which
that party knew or should have known was relevant to pending, imminent or reasonably
foreseeable litigation. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 491 (Iowa
The duty to preserve evidence attaches as soon as litigation is “reasonably
foreseeable. Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879 (S.D.N.Y. 1999).
L. Tips for Drafting
1. Keep your media descriptions broad and your content descriptions narrow
Example: “Please provide any and all statements of your financial condition used
to establish or obtain credit, mortgages, promissory notes, security agreements,
loan and credit applications, and other documents and records pertaining to or
being evidence of any outstanding indebtedness, including but not limited to,
mortgages, home equity loans, line of credit loans, vehicle loans, business loans,
credit card accounts, charge accounts, personal loans, judgments, tax liens, and
pending and threatened litigation against you.”
2. First identify those documents that are commonly requested and obtained
for your particular issues (alimony, child support, property division, etc.),
then describe any documents that are unique to your particular case, then
add a “catchall” demand.
3. Your request must be clear and coherent enough to understand.
4. Don’t create needless barriers by describing the documents so narrowly that
the responding party can play a shell game. For example, when describing
particular documents and things, you might want to incorporate the phrase
“including but not limited to. . . .” Ask for everything “in your possession,
custody or control. . .” and don’t get tangled up “ownership or title.”
5. Consider a joint stipulation for admissibility.
Example: The parties hereby stipulate and agree that all portions of the documents
and writings set forth on Exhibit “A” attached are relevant, genuine, trustworthy
and admissible into evidence for purposes of the above-titled litigation.
M. Responding to Requests for Production
1. Every objection to a notice for production should include at least two
complaints: a) the request is overbroad, and b) the request is vague.
2. The same objections as are otherwise available when responding to