Kirkland & Ellis attorneys outline key training steps that help their associates be thoughtful and strategic in handling written discovery. In Part 3 of a series on Kirkland’s training program, litigation attorneys outline pointers for document requests, interrogatories, and requests for admissions.
Before ever stepping foot in a trial, new lawyers are often tasked with creating the record that could win or lose the case. Written discovery, routinely handled by junior litigators, presents an enormous and critical opportunity to help define the facts and shape strategic decisions.
The key to success is to be thoughtful and strategic—to understand what methods of discovery are available, how they are best used, and how they can be used against you.
Perhaps the most powerful discovery tool in any case is document discovery. While interrogatory responses can seem scripted and deposition testimony may feel rehearsed, a party’s documents can offer a contemporaneous and unfiltered view into the true story behind the party’s thoughts and activities. Requesting the right documents, and carefully reviewing those documents to find the most salient facts, creates the foundation for the whole case.
For document discovery to be effective, it needs to be well planned.
- Have a strategy. Rather than sending a huge number of overly broad requests and deciding later what’s relevant, think ahead about what facts will help you prove your case. If you are the plaintiff, consider what elements you need to prove for each claim and what kinds of documents would help establish those elements. If you are the defendant, approach discovery with your affirmative defenses or counterclaims already in mind. Tailored requests are more defensible if challenged, and can also avoid subjecting your client to equally broad requests. Courts are not fans of scorched-earth discovery with no reason, so be prepared to defend what you think you need and why. However, if you think something is potentially relevant or could lead to other relevant information, ask for it. The legal standards for what you can get in discovery are typically much broader than what might ultimately be admitted at trial.
- Adjust the scope of your requests to the questions at issue. If a particular issue has been resolved and is now off the table, (i.e., through a decision on a Rule 12 motion), make sure the scope of your discovery requests reflects the narrowed scope of the case.
- Send clear requests. In addition to being tailored, your requests need to be clear. Requests that include vague terminology, multiple subparts, or a series of “and/or” clauses can be unintelligible and make it difficult for you (or the judge) to police compliance. Sometimes it is better to split up a complicated request into multiple separate requests for the sake of clarity. If your opponent objects that requests are vague or overbroad, meet and confer and demand that they explain why. Then, consider whether you can reframe the requests to address the issue without sacrificing what you need.
- Always consider how your client would be prepared to respond to similar requests. Don’t send a request that your client cannot respond to if the tables are turned (because your opponent will surely want you to produce the same things you made them produce). It will be difficult for you to argue that your adversaries are overreaching when they can simply point the court to similar requests that you served on them. Engage with your client up front and make sure that you can respond to requests that mirror what you are serving on the other side.
- Make your objections clear and specific. The need for thoughtfulness also applies to your objections and responses. With recent changes to Federal Rule of Civil Procedure 34, an objection must state whether any responsive materials are being withheld on the basis of that objection. That means that your objections need to be intelligible and defensible. Don’t object to every request as “vague” or “overly burdensome”—courts hate it and you will live by the same objections.
Interrogatories can be an useful tool for gathering certain types of facts, such as names, dates, and locations where evidence is stored that will inform follow-up discovery. The key to successful use of interrogatories is to think about when they do and don’t make sense, and to be mindful of what your own responses say:
- Do you want to hear from the lawyer or the client? While interrogatory responses can be useful and powerful, remember who is actually writing them. Typically, lawyers have a heavy hand in the preparation of written responses, even if the client is ultimately verifying them. And they will be used to prepare the other side’s witnesses before they testify at deposition. If you want the unfiltered version from fact witnesses, consider foregoing the interrogatory and asking the question at the deposition.
- Remember the duty to supplement. In lawsuits that last for years and years, it is easy to lose track of interrogatories that were responded to early in the case and before either side had fully developed its facts. Don’t let key information get excluded at trial because you failed to keep your responses current. And make sure that if a jurisdiction’s rules do not require your opponent to supplement automatically, that you serve requests for supplemental responses as the case progresses.
- Prepare your witnesses. Your witnesses need to know what your interrogatory responses say. If your witness spots a problem with an interrogatory response, you need to know about it and resolve it. Don’t let your witness get impeached with a response that contains a mistake or a version of the facts that has been superseded by something more recently discovered.
Requests for Admissions
RFAs are less used than document requests and interrogatories, but they can be a powerful tool if you keep some basics in mind:
- Use them wisely. RFAs are useful for getting into the record discrete facts that the other side doesn’t have a basis to dispute. For example, an RFA might ask whether the other side has any facts to support a specific contention, whether a specific document was made and kept in the ordinary course of business, or whether the signature on a certain document is authentic.
- Draft narrow, targeted requests. Requesting that the other side “admit” ultimate issues in the case is not likely to yield much. RFAs that contain embedded legal conclusions, disputed issues, or inflammatory language will probably be met with flat denials, and there will be very little you can do about it.
- Respond reasonably. If something’s not really in dispute, don’t give an evasive response that will embarrass you when read to the judge and jury. And if part of an RFA is true and part of it is not true, respond clearly on which aspects are admitted and which are denied. Remember that if you fail to admit something now, but later your opponent proves the document to be genuine or the matter to be true, you may be forced under FRCP 37(c)(2) to pay your opponent’s reasonable expenses incurred in making that proof.
What’s revealed in discovery will constitute the universe of facts that are subject to questioning at deposition and that may ultimately be allowed trial. The key facts that are found in reviewing documents and in analyzing written responses are the building blocks for your story at trial.
As a result, mastering the art of discovery, and knowing the facts, can provide key opportunities for junior litigators to play a critical role in shaping their client’s case for trial.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Donna Welch is a senior litigation partner at Kirkland & Ellis LLP in Chicago. Her practice focuses on complex litigation including pharmaceuticals, real estate and partnership disputes, with a focus on claims involving fraud, breach of fiduciary duty and civil RICO. She has tried numerous cases in state and federal courts around the country.
Kaitlyn Coverstone is a litigation associate at Kirkland & Ellis LLP in Chicago. She focuses on complex commercial litigation in federal and state courts, including matters involving pharmaceutical liability, contract disputes, insurance coverage disputes, and breach of fiduciary duty claims under ERISA.