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Interrogatories and Other Written Discovery

In our legal system, we have determined that it works to everyone's advantage if there are as few surprises as possible in the course of a lawsuit. Since the late 1940s, the federal court system has required disclosure of all relevant facts and documents to the other side prior to trial, and virtually every state has followed its lead. That disclosure is accomplished by discovery. Discovery is generally accomplished either in writing — interrogatories, requests for admissions and requests for production of documents — or through deposition testimony.

While depositions are important to establishing a case, discovery in any litigation usually begins with one party serving upon the other a set of written discovery requests. These requests are often broken down into the three categories mentioned above: interrogatories, requests for admissions and requests for production of documents. The party served the discovery requests then has a limited amount of time to comply with the request.

Interrogatories are usually questions requiring your version of facts and of your claims. The questions can range from the broad — "Please state all facts concerning the accident of March 9, 2009" — to the very detailed. Some attorneys also include a list of detailed instructions accompanying their interrogatories. The scope and number of the questions that an attorney is allowed to ask are usually controlled by the relevant Code of Civil Procedure for the jurisdiction you are in. Some questions or instructions posed by opposing counsel may not be appropriate or fair; your attorney will help you decide what you should answer and what you should object to.

While used less often than interrogatories, requests for admission can be a very powerful tool. Put simply, requests for admissions ask a party to admit or deny certain facts. Once admitted, these facts are generally considered proven. Failure to answer requests for admissions in a timely fashion — or worse, failing to answer truthfully — carries a penalty, sometimes severe.

The third leg of written discovery requests is the request for production of documents. Document production is self-explanatory: Any party has a right to see most documents that even arguably relate to a case. Particularly in business litigation, the documents involved can be voluminous. In a case where lost profits are at issue, for example, virtually every bit of financial data of the business claiming lost profits is relevant. Unlike interrogatories, requests for production of documents are often not limited in number, only in relevance to the case at hand.

Does that mean you have to move your business to your lawyer's office for the duration of the litigation? Not really. Most lawyers will be willing to look at documents with you where you work and take copies of what they need.

What about computer files? Increasingly, courts are allowing access to computer files as part of document discovery. In cases where enough is at stake to justify it, courts have even allowed litigants to reconstruct deleted files (like e-mail), although that practice has not yet become general. However, in these cases it is especially important to have clear document handling policies that set cut-off dates as to when information is archived or destroyed. Courts are increasingly skeptical of companies unwilling or supposedly unable to produce digital documents as back-ups have become a standard practice in the business world.

Preparing to Meet With Your Attorney

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Preparing to Meet With Your Attorney

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