Drafting Good Discovery:
Admissions and Interrogatories
George B. Murr
Advanced Civil Discovery
The University of Houston Law Foundation
Continuing Legal Education
George B. Murr
1300 Post Oak Boulevard, Suite 2500
Houston, Texas 77056
Voice: (713) 871-6749
Fax: (713) 960-1527
gmurr@bmpllp.com
Drafting Good Discovery
I.
II.
Draft and execute a discovery plan according
to the issues and the budget in the case.
Draft and issue written discovery requests
that develop each of the issues.
III. Craft written discovery requests to avoid
disputes and to achieve results.
IV. Utilize negotiations with opposing counsel
whenever advantageous and whenever
possible.
Drafting Good Discovery
I.
Avoid issuing boilerplate discovery requests.
II.
Avoid issuing boilerplate discovery objections.
III.
Avoid issuing repeated discovery requests seeking
the same evidence.
IV.
Avoid costly discovery disputes and discovery
battles.
Outline Handout
The outline handout provides comprehensive
research and analysis of the rules and
controlling authority regarding issuing written
discovery requests.
The appendix to the handout contains some
suggested coordinated written discovery
requests and commentary on how to use them.
Handout Organization
I.
Discovery Plans Under the Texas Rules of
Civil Procedure
II.
Interrogatories in Complex Cases
III. Requests for Admission in Complex Cases
IV. Discovery Planning
V.
Appendices: Example Discovery Requests
Drafting Good Discovery
I.
II.
Draft and execute a discovery plan according
to the issues and the budget in the case.
Draft and issue written discovery requests
that develop each of the issues.
III. Craft written discovery requests to avoid
disputes and to achieve results.
IV. Utilize negotiations with opposing counsel
whenever advantageous and whenever
possible.
Draft a Discovery Plan
Discovery Planning
•
Discovery in complex cases begins with the
issuance of interrogatories, requests for
admission and requests for production.
•
It is the analysis involved in crafting and
issuing written discovery that requires the
strategic planning that is determinative of
success at this stage of the litigation.
Discovery Planning
• Key to success at the discovery stage of
litigation is having a discovery plan. This
involves the creation of a practical, strategic
formula for the planning and drafting of
written discovery.
• Even if every aspect of this plan is not
implemented, the practitioner may utilize
elements of such a plan to achieve better
results.
Drafting a Discovery Plan
I.
Ascertain what you need to prove and what
you will need to prove it.
II.
Make a calculated and informed judgment
as to what evidence is available.
III. Determine how best to obtain the evidence
you need from what is available.
I.
Ascertain what you need to
prove and what you will need to
prove.
A.
Analyze the pleadings, client documents
and initial disclosures for issues in dispute.
B.
Examine the elements of the causes of
action or affirmative defenses at issue.
C.
Seek dispositive issues as much as possible.
II.
Make a calculated and
informed judgment as to what
evidence is available.
A.
Focus on the issues gleaned from your analysis to
pursue as issues in discovery.
B.
To the extent possible, obtain information from
informal discovery.
C.
Avoid wasting discovery requests that seek to
sample the landscape.
III. Determine how best to obtain
the evidence you need from
what is available.
A.
Proceed as efficiently as possible keeping in
mind client budget requirements and any
submitted client budget or litigation plan.
B.
Evaluate the evidence from the perspective
of its relative value in relation to your need
for it.
Draft Discovery Requests
Determine the Best Means of
Obtaining the Evidence You Need
I.
Begin drafting written discovery requests
in accordance with your discovery plan.
II. Draft discovery requests focusing on
dispositive elements of causes of action
and defenses.
III. Note the advantages and disadvantages of
each form of written discovery request.
III. Note the advantages and
disadvantages of each form of
request.
A.
Interrogatory advantages and
disadvantages. See pp. 8-15 of the
Handout
B.
Request for Admission advantages and
disadvantages. See pp. 17-21 of the
Handout
A.
Interrogatory advantages
1.
Interrogatories are relatively inexpensive.
2.
Interrogatories can require the opponent to
examine records and conduct research to
prepare a factual answer.
3.
Interrogatories can identify and narrow an
opposing party’s contentions.
A.
Interrogatory advantages
(cont.)
4.
Interrogatories to corporations require a
response based on the collective knowledge
of the corporation.
5.
Interrogatory answers may limit the
evidence introduced at trial.
6.
Interrogatories can be phrased precisely.
A.
Interrogatory disadvantages
1.
The number of permissible interrogatories
is limited.
2.
Interrogatory answers are generally from
the attorney not the party.
3.
Interrogatory answers are usually calculated
and self-serving, unless quantified.
A.
Interrogatory disadvantages
(cont.)
4.
Interrogatory responses may be obscured by
objections.
5.
Interrogatory answers may be used as
evidence only against certain parties.
6.
Interrogatory answers must be offered and
admitted in evidence to be probative.
B.
Request for admission
advantages
1.
Requests for admission require the other
party to take a position.
2.
Responses are binding upon the responding
party.
3.
Requests for admission can be outcome
determinative.
B.
Request for admission
advantages (cont.)
4.
A false denial can be the basis for sanctions.
5.
Unlimited requests available.
6.
Must admit so much as true, deny
remainder.
7.
Reasonable inquiry required by opposition.
B.
Request for admission
disadvantages
1.
Requests for admission may only be served
on parties to the case.
2.
Responses are binding only upon the
responding party.
3.
Responses may only be used in the current
case.
B.
4.
5.
Request for admission
disadvantages (cont.)
Requests for admission rarely resolve
matters genuinely in dispute.
Denial of a request for admission has no
preclusive effect.
6.
Obtaining useful responses may be timeconsuming and expensive.
7.
Withdrawal of admitted requests is
relatively easy.
Craft Written Discovery
Crafting Coordinated Requests
I.
Begin with a request for admission.
II.
Follow up to obtain supporting information
with an interrogatory.
III. Request any documentation supporting the
response to the request for admission or
interrogatory.
IV. Review responses and prior issues and evaluate
new issues for discovery, and proceed anew.
I.
Begin with a request for
admission.
Insurance Company X issued a professional
liability policy insurance policy (“Policy”) to
cover professionals working for your client
(“Client”). The Policy contains an exception to
coverage for any prior existing claims (“Prior
Claims”) for which your Client has received
service of process. You seek to show that there
was coverage and that the exception does not
apply because your Client was never served with
process regarding any Prior Claims.
I.
Begin with a request for
admission (cont.).
Request for Admission No. 1:
Admit that Client was never served with process
regarding any Prior Claims.
II. Follow up to obtain
supporting information with
an interrogatory.
Interrogatory No. 1:
If you did not unequivocally admit Request for
Admission No. 1, then please provide the
following information regarding any Prior
Claim for which you assert Client received
service of process.
II. Follow up to obtain
supporting information with
an interrogatory (cont.).
(a) Parties to the Prior Claim;
(b) Court and Cause Number of the Prior
Claim;
(c) Date you allege service of process was
perfected, if any.
III. Request any documentation
supporting the response to
the request for admission or
interrogatory.
Request for Production No. 1:
Please produce all documents that support your
denial of Request for Admission No. 1.
III. Request any documentation
supporting the response to
the request for admission or
interrogatory (cont.).
Request for Production No. 2:
Please produce all documents that constitute
evidence of service of process on Client of
any Prior Claims.
Negotiate Discovery If Possible
Utilize Negotiations Whenever
Advantageous and Possible
I.
Negotiate smooth discovery with
opposing counsel as much as possible.
II.
Agree to disagree upon what aspects of
discovery are in dispute, pick your battles
before going to court, avoid making the
case solely about discovery.
III. Take advantage of Discovery Plan 3
under the Texas Rules of Civil Procedure
George B. Murr
1300 Post Oak Boulevard, Suite 2500
Houston, Texas 77056
Voice: (713) 871-6749
Fax: (713) 960-1527
gmurr@bmpllp.com