1. Civil Litigation:
Process and Procedures
Chapter Thirteen
Interrogatories and Requests for Production

2. Interrogatories and
Requests for Production
 The two most frequently used
discovery devices
 Written requests for information
 Addressed only to parties, not
witnesses
 The basis for other investigation,
additional discovery requests
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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3. Interrogatories
 A formal request for answers to written questions
 Answers are made under oath, signed by the
client/party
 Subject to perjury laws
 Can be used for impeachment at trial
 Protected information generates an objection, rather
than an answer
 Usually privilege or work product
 Attorney must sign (ratify) an objection
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4. Requests for Production
 Federal Rule 34 – Production of Documents and
Things and Entry Upon Land for Inspection and
Other Purposes
 Moveable items and documents must be furnished
upon receiving the discovery request
 Non-moveable items (e.g., real property, large
equipment) can be inspected on-site (entry)
 Requests for protected material should generate
an objection
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5. Request for
Production – Non-Parties
 Although the discovery tool is not
available, non-parties may be asked to
produce documents or permit inspection
 The request comes in the form of a
subpoena duces tecum
 This may also command an appearance at
a hearing, deposition or trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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6. Subpoena on
a Non-Party
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7. Discovery Document Format
 Similar to pleadings
 Caption
 Identification of the document
 Introductory paragraph
 Party serving it
 Action required of the recipient
 List of definitions
 Body
 Attorney’s signature
 Certification of service
 Verification of the party (answer)
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8. Body of the Document
 In interrogatories, written questions
 In requests for productions
 List of documents
 List of physical objects
 Proposed arrangements for inspection, right
of entry
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9. Time-Frame
 Some preliminary information is required “up-
front”
 A meet-and-confer will set out the timeline
 The faster the discovery is completed, the
greater the time available for settlement prior
to trial
 Deadlines may be extended
 In initial discovery plan
 By stipulation between the attorneys
 By order of the court, with good cause
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10. Drafting Interrogatories
 Largest source of objections during discovery
 Court may limit the number of objections
 Used to obtain information controlled by the
other party
 In addition to 25 initial questions, there will be
initial disclosures under federal rules which will
eliminate some areas of inquiry
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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11. Drafting
 Based on an analysis of the claims, proof
needed, and possible defenses
 May be modeled on forms for simple
cases (form books, form files)
 In complex cases, may be designed to
lead to additional avenues of investigation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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12. Claims, Defenses, Issues
 Review the complaint, any motions
 Review or research the elements needed
to prove the claims
 Review the defenses outlined in the
answer
 Review the preliminary material provided
under Fed. Rule 26
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All Rights Reserved.
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13. Proof
 What will need to be produced to prove the
client’s claim or defense?
 Identity of witnesses
 Documentary evidence
 Physical evidence
 Inspection or testing required for expert
analysis
 As a matter of strategy, some questions will
be reserved for depositions (more
spontaneous responses)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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14. Preparing Interrogatories
 Writing
 Review pleadings and prepare a list of claims &
defenses
 Review or research the necessary elements
 Review initial disclosures made under Rule 26(a)
 Identify areas with a lack of supporting information
 Service
 Set of interrogatories should be sent to opposing
counsel(s), if that party is represented
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15. Reminders
 Never directly contact a party who is
represented by counsel
 Be sure to calendar (docket or tickle) the
expected due date for answers
 If responding to interrogatories, be sure to
calendar the necessary reminders as well as the
due date
 If the due date passes without response, a
motion to compel may need to be prepared
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16. Responding to Interrogatories
 Make 2 working copies
 Review with attorney to identify any objections
 Send a copy to the client & schedule a meeting
 Review all case information
 Meet with the client, draft responses
 Review draft responses with attorney, amend as
necessary
 Meet with client for verification of final answers
 Be sure response is received before due date
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All Rights Reserved.
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17. Objectionable Questions
 The attorney will object to questions that should
not be answered
 Seek information protected by
 Privilege
 Work product doctrine
 Trade secrets exception
 Duplicative or under control of the requesting party
 Vague, overly broad, burdensome (can narrow)
 Unlikely to lead to admissible evidence
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18. Narrowing the Scope
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19. Motion for a Protective Order
 The requesting party may accept the
objection coupled with a narrower answer
 If not, a motion for protective order will be
filed with the court at the same time answers
are served on the opposing attorney
 The judge will sustain or overrule the
objection
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All Rights Reserved.
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20. Discrepancies
 If the client information differs from that
contained in the file
 May be a faulty memory
 May be a change in facts that could affect a
claim or defense
 Must be brought to the attention of the lead
attorney as soon as possible
 The client signs under penalty of perjury
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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21. Certificate of Service
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22. Reviewing Answers
 Check to see that all have been addressed
 Answered fully
 Objected to
 If a motion for a protective order has been
filed, calendar (tickle) it with adequate
reminders for preparation
 Analyze answers to discover any follow-up
required by requests for production or
deposition
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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23. Preparing a
Request for Documents
 Integrate information from interrogatories
into case file, and re-analyze the claims,
elements & defenses
 Request any documents revealed in the
previous discovery requests (remembering
that the order of discovery is a strategy
issue)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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24. A Request for Production
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25. Responding to
Requests for Production
 Each document requested must be reviewed by the
attorney for possible objections, including relevance
 Be sure the documents are numbered
 Each request MUST be answered, with the
document requested or an objection
 If the production of documents is unduly
burdensome, the requesting party may be
permitted to review & copy the pertinent
documents
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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26. Retrieving Documents
 Paralegals may do manual reviewing &
copying of documents
 The material requested may be in
electronic format for litigation support (or
document management) software to
search
 The material may be scanned from hard
copy for the same purpose
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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27. Reviewing Responses
 Every request should have an answer
 Be sure the documents requested are actually
provided
 If there are objections, the attorney must
determine whether to accede to the objection
or defend the protective order request
 If there is no response, a motion to compel
may be needed
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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28. Meet and Confer
 Before the initial scheduling conference
with the judge – Rule 26(f)
 Try to stipulate to
 Timelines
 Formats of electronic documents required
 “Claw-back” provisions, etc.
 Reported back to the judge for use at the
scheduling conference
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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29. E-Discovery Questions
for the Client’s Business
 Who manages the computers/network?
 What programs/software are used?
 What are the e-mail IM provisions?
 How are documents created, transmitted, stored?
 What is the back-up system?
 Who in the company has access/administrative rights?
 Who outside the company has access?
 What is the security system?
 Who performs maintenance & repair?
 What is the document retention, archiving & destruction policy?
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All Rights Reserved.
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30. E-Discovery Considerations
 Native format or TIFF/PDF?
 Metadata?
 Cost of retrieving
 Destroyed or corrupted files
 Files stored on obsolete devices
 Client’s retention policy (litigation hold)
 “Claw-back” provisions
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All Rights Reserved.
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