Rules are Rules for a Reason, Part 5, Discovery

When someone asked my best friend why my mother was always so happy, he responded, “Because she always greets the inevitable with enthusiasm.” I recommend my mother’s attitude toward discovery.

The rule-makers intended discovery to make trials more efficient, quicker, fairer, and less expensive. Because some lawyers through ignorance or malice abuse discovery and because judges do not enforce the rules or impose sanctions for infractions, discovery is often a nightmare, wastes time, delays trial, increases the time for trial, and makes litigation less fair and more expensive.

The lawyer’s task requires good faith in both issuing and responding to discovery. Before issuing discovery, determine its purpose. Are you seeking specific information or you on a fishing expedition? If you seek specific information, documents, or admissions, tailor your requests narrowly to your needs. Consider whether you can get the same information from other sources more easily with less expense and without alerting your adversary to what you know and what interests you. If it is a fishing expedition, remember you may net many more fish than you want or need, but you may have to clean and eat those fish. Also, remember lawyers may send your discovery requests back to you, requiring you to answer the same questions you posed.

Preparing the first draft of discovery requests or responses is an effective use of paralegals. Allowing a paralegal to prepare the final draft of discovery requests or responses is legal malpractice per se.

In responding to discovery, greet the inevitable with enthusiasm. Consider whether the discovery creates a problem for you or your client. Resolve doubts by responding without objections. Consider the benefits of responding. The more thorough and complete your responses, the better you understand the strengths and weaknesses of your case, and the better you are prepared for trial. Remember, you must give them the needle but also give them the haystack. Object if you must, but consider how a judge may view your objection.


  • The person answering interrogatories must verify the answers under oath. If you are answering interrogatories, you must have your client sign the answers under oath. If you receive unverified answers, insist upon a verification. You cannot impeach based on unverified answers to interrogatories.
  • Use interrogatories to narrow the issues. If the opposing party alleges facts on information and belief, ask for the sources, circumstances, and dates of receipt of the information. If the opposing party prays for other relief the court deems just and equitable, ask what other relief he or she contemplates and what facts support that relief.
  • The standard witness interrogatory does not ask the names of witnesses the opposing party intends to call as witnesses; it requires “witnesses concerning the facts of the case.” Lawyers responding err in not listing all witnesses. Lawyers receiving responses err in failing to insist on listing all witnesses. They also err in not insisting on compliance with the standard interrogatory requiring “a summary sufficient to inform the other party of the important facts known to or observed by such witness.”  You waive your right to object at trial if you did not move to compel a complete answer.
  • How do subparts count against the allotted 50 interrogatories? This answer is not as clear as many lawyers believe. No South Carolina case is directly on point. My reading of federal cases did not provide a definitive answer. Make sure your subparts relate directly to the main question.

Request to Produce.

  • If you do not want it, do not ask for it. Remember that when you request it, you require opposing counsel to prepare his or her case. Consider that you may require opposing counsel to collect the evidence he or she would not otherwise have available to use against you in court.
  • Responding to requests to produce is often daunting and overwhelming. Never forget how to eat an elephant—one bite at a time—is the best approach to responding. Another key is the efficient organization of your responses. I use a separate digital file for each response, which I name RRP 001, RRP 002, etc. with the numbers corresponding to the number of the request.

Request for Admissions of Fact.

  • Requests for admissions of fact are the most underappreciated and underused discovery tool. They have the highest potential for reducing trial time and making trials simpler and easier by avoiding admissibility disputes and the need for testimony.
  • I usually tell opposing counsel I will agree to all requests for admissions he or she wishes to submit. Each admission makes the trial easier.
  • When responding to the request for admissions of fact, I encourage my clients to admit every request that is true and not fatal. The opposing party can only get sanctions and attorney’s fees for the requests we deny.

Objections. I may someday write a post on discovery objections, but there is no room here.

I frequently send this paragraph with my discovery requests.

I tried to avoid the overly burdensome, irrelevant, and boilerplate discovery requests served by many lawyers. My purpose is to gain useful and usable information, not to inconvenience or cause any hardship to you and Mr. _____. If you believe any request is overly burdensome, irrelevant, or otherwise objectionable, please email me by April 14, 2020, stating your problem or objection, and I will consider withdrawing the request.

This costs nothing but sometimes resolves problems before they become problems and sometimes improves the relationship with opposing counsel and improves cooperation by the parties.