X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Dr. Seuss realized the limitations of basic tools of knowledge in his classic “On Beyond Zebra!” His proposed alphabet started where the conventional one left off — “Z for Zebra.” Every first-year litigation associate develops familiarity with written interrogatories and oral depositions. Unfortunately, many litigators fail to fully develop the skills required to go “On Beyond Basic Discovery” — to help cut through the discovery process. Complex litigation can call for the use of sophisticated discovery techniques, which often can be very powerful. Today’s “notice” pleadings provide little information as to the actual claims or defenses of a party. They place only the broadest limits on what will be evidence at the trial. Motions for more definite pleadings under Federal Rule 12(e) are often answered by the court’s reply, “That’s what discovery is for.” The innovation of “disclosure” doesn’t solve the problem. For these reasons, the emphasis should be on discovery devices that flush out and limit your adversary’s contentions and proofs before the trial commences. This article is directed to discovery under the Federal Rules of Civil Procedure. However, the greater part of the discussion is pertinent to the court rules of most states, including New Jersey, although some variations exist. REQUESTS TO PRODUCE There is virtually no piece of “hard” evidence that cannot be sought under Federal Rule 34, which specifies “any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form)” as well as “any tangible things . . . which are in the possession, custody or control of the party upon whom the request is served.” The procedure to be employed in requesting production is quite specific. Fed. R. Civ. P. 34(b). First, the requesting party serves a document known as a “Request to Produce.” Fed. R. Civ. P. 84 and app. Form 24. The request must specify a reasonable time and place for the production and inspection, which should be more than 30 days from the date of service of the request. The party on whom the request is served must serve a written document, a “Response to Request to Produce,” within 30 days after service of the request. The response must be signed by the responder’s attorney, who certifies, inter alia, that a reasonable inquiry has been made in regard to the request. Fed. R. Civ. P. 26(g)(2). The response must indicate as to each item or category that inspection “and related activities,” such as copying, will be permitted or must state objections to the request and the reasons for the objection. If there is an objection, the requesting party may move to compel the inspection. It is wise to have a court reporter present at the time of the production so that a record (including marking for identification) is made as to what is produced in regard to each request served. It is good practice to mark each item produced or, if documents are produced in such a manner as to make this impracticable, why this is not being done. If the responding party produces a “haystack” rather than a needle, this record will be helpful on a motion to seek a more refined production. Obviously, arrangements must be made for copying. Why and when should Requests to Produce be used? There are two major reasons to serve a Request to Produce. The first is to learn what documents exist, in order to prepare your own case and to pursue discovery in regard to the substance and the subject matter of the document. The second, and equally important, reason is to limit your adversary’s proofs at trial. If the adversary fails to produce a document that would be required in response to your Request to Produce and the document first appears at trial, you may bar the use and introduction of that document at trial. One of the prime purposes of discovery is to eliminate surprise or “trial by ambush.” Your well-crafted Request to Produce should provide the basis for such an objection. Requests to Produce can be integrated with contention interrogatories. For the moment, however, consider their use in regard to oral depositions. There is nothing more frustrating than learning in the midst of a deposition that documents exist as to which you would like to examine the witness, but that they are not at the deposition. Not only are you deprived of an opportunity to examine the documents or to examine the witness in regard to them, but you are deprived of the opportunity to refresh the witness’s recollection as to matters recorded in the past. Bear in mind that, as to a party, you have a choice of either conducting the production in advance of the deposition (thus giving yourself adequate time to review the documents before the deposition) or, under Federal Rule 30(b)(5), requesting that the documents be produced at the deposition. Of course, you may, and usually should, do both. Remember, the request to produce at the deposition must follow the procedures of Federal Rule 34. Likewise, it is advisable to keep a detailed description (and marking) of all items produced, and a representation from the producing party indicating to which of your requests the document is responsive. Again, arrangements for copying must be made. It may be wise to have each document alluded to in the deposition copied and attached to the transcript, if this is practical. REQUESTS FOR ADMISSION Requests for Admission under Federal Rule 36 are one of the most powerful devices available to a lawyer handling a complex case — for narrowing the issues, eliminating tedious proofs and pinning down the claims and defenses of an adversary. Unfortunately, Requests for Admissions are underutilized. The procedure is, once again, quite specific. Each admission sought must “be separately set forth.” Fed. R. Civ. P. 36(a), Fed. R. Civ. P. 84 and app. Form 25. If the party from whom the admission is sought fails to admit, deny or object (giving reasons) within 30 days after service of the request, it is admitted. Federal Rule 37 provides that “an evasive or incomplete . . . response . . . is to be treated as a failure to . . . respond.” Expenses and sanctions are available under Federal Rules 37(a)(4) and 37(c)(2). Requests for Admission may demand admissions as to (1) statements of fact; (2) opinions of fact; (3) the application of law to fact; and (4) the genuineness of a document described and of which a copy is served or otherwise “furnished or made available” for inspection and copying. Fed. R. Civ. P. 36(a). The uses of Requests for Admission to obtain simple admissions of “fact” and genuineness of documents are simple and obvious. It is important that only one “fact” be included in each request, lest a denial leave you wondering which fact was denied. The other uses of the device are not simple. Opinions of fact include opinions that are within the ken of a layman (e.g., drunkenness) as well as opinions that ordinarily require expert knowledge. If there is a dispute as to the cause of a disease, a perfectly proper request might ask: “Admit that plaintiff’s condition was caused by his use of tobacco rather than his exposure to asbestos.” A request seeking the application of law to fact might ask: “At the time of the accident Mr. Smith was driving under the influence of alcohol as defined by New Jersey statutes,” or “William Black’s brother Harry used undue influence upon him to get him to change his will in 1992.” Likewise, such a request might ask whether a document “was kept in accordance with the requirements of Federal Rule of Evidence 803(6)” (the “business records exception” to the hearsay rule). Requests for Admission are an excellent way to eliminate evidence problems at trial. They can be used to lay a foundation for both demonstrative and testimonial evidence. In addition, they can eliminate hearsay problems by obtaining admissions that the grounds exist for application of the particular hearsay objection. A denial must “fairly meet the substance of the requested admission.” Furthermore, lack of information or knowledge may not be given as a reason to admit or deny “unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.” In addition, a claim that the matter as to “which an admission has been requested presents a genuine issue for trial” is not a ground for objection. The response must be signed by the party or by the attorney of the responding party. If a party signs, the attorney must also sign the response under Federal Rule 26(g)(2). CONTENTION INTERROGATORIES A contention interrogatory is probably the most powerful discovery device for limiting and circumscribing your adversary’s case in complex litigation. Because contention interrogatories require intensive thought, considerable time should be taken to prepare them. Also, they sometimes are met with a distrust of the unfamiliar by judges. They are relatively rarely used and are considered by some to be the behemoths of trial preparation. Federal Rule 33(c) provides, in part:
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.

This language has been in the rules for longer than 30 years. The advisory committee note to the 1970 amendment to the rules states: “As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery.” Contention interrogatories are especially useful in complex cases. See McCormick-Morgan, Inc. v. Teledyne Indus., 134 F.R.D. 275 (N.D. Cal.); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101 (D.N.J. 1990). Note that the current New Jersey Rules of Court don’t contain specific language permitting interrogatories as to contentions, but New Jersey Rule 10-2(a) sets a very broad scope for discovery; “any matter, not privileged, which is relevant.” New Jersey Rule 4:17-1(a) applies this scope to interrogatories. Since Pretrial Orders specifically are to include “a specification of . . . issues” and “the factual and legal contentions of the parties,” [New Jersey Rules 4:25-1(b) (3),(4) and (7)], it must be within the scope and purpose of discovery to “relate legal doctrine to the facts allegedly giving rise thereto.” See Judge Pressler’s Comment 2 to New Jersey Rule 4:25-1. The use of contention interrogatories is entirely consistent with the trend in the Federal Rules toward “formulation and simplification of the issues, including the elimination of frivolous claims or defenses,” under Federal Rule 16(c)(1). Additionally, in accordance with Federal Rule 16(c)(4), they promote “the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Federal Rules of Evidence.” Likewise, the amendment to Federal Rule 37 that became effective on Dec. 1, 2000, specifically provides that a party who fails to disclose information as required to amend a prior response to an interrogatory under Federal Rule 26(e)(2) “is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” Unfortunately, the use of contention interrogatories may not be entirely consistent with Federal Rule 33(a) — which limits a party to 25 interrogatories — except with leave of court or on written stipulation. Note that New Jersey has no numerical limit on interrogatories, although it does have compulsory interrogatories in certain tort cases. See New Jersey Rules 4:17-1(b) and 4:17-6. If such leave is sought, it is suggested that the proposed contention interrogatories be prepared and annexed to the motion seeking such leave. Of course, the motion must be supported with appropriate affidavits and a brief showing why the court should allow the additional interrogatories. A reasonable judge should respond with enthusiasm to your efforts to narrow issues, limit proofs and generally expedite the trial. The basic pattern of a contention interrogatory should ask: Does the party make such a legal contention? (E.g., Do you contend that Harry Black unduly influenced his brother, William, to sign a new will on July 3, 1992?); Set forth the facts on which you will rely to support this contention; Set forth the names and addresses of all witnesses with knowledge of relevant facts relating to this contention; Set forth all documents and other nontestimonial evidence known to you that you may claim support this contention, and produce (annex hereto) copies of all such documents in accordance with Federal Rule 34; and Set forth the names and addresses of all expert witnesses whom you may call in support of this contention, and state all opinions to be expressed by said person, as well as the factual basis and reasons therefor; also annex all reports received from such experts as well as a copy of all statements of alleged “reliable authorities” you may offer in support of this contention at trial under Federal Rule of Evidence 803 (18). Contention interrogatories are best served, as a separate set, late in the discovery period, often about 33 days before it expires. Inadequate answers should be followed by a prompt motion before the court demanding full and complete answers in a short period of time. A firm managerial judge will be as anxious to see the responses as you are, for your efforts will have produced the very narrowing of issues and limits on the proofs that the judge has been attempting to accomplish. In addition, your preparation of a trial brief, motions in limine and motion for summary judgment, and your advice to your client in regard to the strengths and weaknesses of the adverse party’s position, will be far superior (and easier) as a result of your use of contention interrogatories. In today’s complex litigation world, where efficiency and thorough preparation are a necessity, the ability to effectively use the more sophisticated discovery devices available is a vital skill in the lawyer’s armamentarium. In addition, such skills are of considerable aid to the courts in their attempt to streamline complex litigation, an expensive endeavor when left uncontrolled. The author is of counsel at Porzio, Bromberg & Newman of Morristown, New Jersey. He was a founding principal of the firm and was managing principal for more than 20 years. He practices in state and federal courts in New Jersey, New York and numerous other states.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.