Trial Magazine

The rules of discovery provide a straightforward mechanism for marshalling information for trial. Unfortunately, it’s now commonplace for adversaries to strategically object to virtually everything. Responses to discovery requests are prefaced with improper general preamble objections.¹ Each individual request contains multiple prohibited boilerplate objections, with an additional improper qualified disclosure.² Ten straightforward discovery requests may spawn more than 90 objections!

The Federal Rules of Civil Procedure and the state counterparts provide a mechanism for the court to rule on the objections and compel production. However, Federal Rule 37(a)(1) requires attorneys to make an honest, good faith attempt to resolve each individual objection before making a motion to compel.³ Managing the process of resolving each objection is a logistical nightmare. Many lawyers do not want to invest the time and effort to fight the specious objections—they find it overwhelming and believe courts don’t want to be bothered with lawyers fighting about discovery disputes. So they succumb to their adversary’s strategy of obstruction and don’t get the information they need. But you don’t need to give up.

Tracking discovery disputes. I suggest using a project management Excel spreadsheet to keep track of the disputes and what has been resolved. By using this basic spreadsheet, you can track the requests, the relevance of each request, the objections, and your legal and factual response to the objections. Also include fields to track opposition to withdraw an objection and the court’s decision to overrule or sustain the objection. (See the discovery request chart below from a nursing home case as an example.)

This spreadsheet can be embedded in a proposed order for the court—it then becomes a worksheet to use during the meet-and-confer process with the opposing lawyer and to track what remains in dispute and why the objection is improper. It will show the court that you are serious and will make it apparent when objections are boilerplate. And it makes it easier for the court to appreciate what’s at issue and how it should be resolved.

Eventually you will be required to show that each request is relevant, so think through your requests carefully before you make them. Be sure you can articulate the relevance of each request. There is a tactical advantage to responding to objections promptly.

Have your template spreadsheet organized from the outset. By setting up the case-specific spreadsheet when you craft your discovery, embedding each request and its relevance at the time you serve the request, you will be ready when the inevitable objections are made.

Showing good faith. Rule 37(a)(1) requires a certification from parties demonstrating satisfaction of the good faith meet-and-confer requirements.⁴ Many courts require more than a conclusory comment that counsel have tried to resolve their disputes.⁵ The emerging standard under Shuffle Master, Inc. v. Progressive Games, Inc. provides that “a certificate must include, inter alia, the names of the parties who conferred or attempted to confer, the manner by which they communicated, and the dispute at issue, as well as the dates, times, and results of their discussions.”⁶

It’s important to be able to show the court that you have made a truly good faith effort to resolve the disputes. Use a separate Excel spreadsheet to keep track of the required elements—this in itself is a sign of good faith. (See an example spreadsheet below.)

By tracking your efforts to resolve the objections in real time, you won’t need to reconstruct what you have done when you write your motion—and your detailed conference affidavit will set the tone that you are a professional and show that you have diligently tried to resolve the dispute. In the introduction to your Rule 37 meet-and-confer verification affidavit, include a summary of your efforts, as well as the time spent. For example:

Counsel have worked together professionally and diligently to resolve their discovery disputes. They have exchanged 18 emails, spoken on the telephone 12 times, and even met for lunch to work through their disputes. As a result of their efforts, 93 objections have been resolved, but there remain 7 objections that counsel respectfully requests the Court resolve.

Then include the spreadsheet showing your efforts to resolve the discovery disputes.

Discovery disagreements should not involve petty sparring with your opponent. They are about getting the evidence that your client is entitled to and that is necessary to prove your case at trial. By carefully tracking the objections to your discovery requests and managing the meet-and-confer process, you can expeditiously prepare the motion to compel. Presenting the objections in a spreadsheet format exposes how spurious they are while showing the court efficiently and clearly what is at issue and why you should prevail.

Mark R. Kosieradzki is a founder of Kosieradzki Smith Law Firm in Minneapolis, Minn., and can be reached at mark@koslawfirm.com. Copyright © 2021 Mark R. Kosieradzki. Hear from Mark and other faculty at AAJ’s Discovery Masters Class Seminar in Washington, D.C., Nov. 9–10 (www.justice.org/education).

Notes

1. See Arctic Cat, Inc. v. Bombardier Recreational Prod., Inc., 2014 WL 12610146, at *7 (D. Minn. May 23, 2014); Burke v. Messerli & Kramer, P.A., 2010 WL 2520615, at *3 (D. Minn. June 15, 2010) (“A blanket claim of privilege that does not specify what information is protected will not suffice.”) (quoting United States v. White, 970 F.2d 328, 334 (7th Cir. 1992)).
2. See Network Tallahassee, Inc. v. Embarq Corp., 2010 WL 4569897, at *1 (N.D. Fla. Sept. 20, 2010); see also Mark Kosieradzki, 30(b)(6): Deposing Corporations, Organizations & the Government, 2d ed., ch. 9, Trial Guides (2020).
3. Fed. R. Civ. P. 37(a)(1).
4. Id.
5. Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996).
6. Id.