Stop – You’re Doing Discovery All Wrong!
by Ryan R. Bauerle
How many of you, whenever served written discovery get heart palpitations? Then, in a panic, scramble to produce whatever little documents your client gives you, then lob every single objection you can think of in response? Actually, don’t answer that. If you conduct discovery in this way, stop, it is not supposed to work that way! (Note: I am speaking solely from a Family Law attorney’s perspective, your experience may differ.)
I am 100% guilty of this myself. Historically, I looked at written discovery as a burden rather than a necessary tool. Like anything else, it just takes time to fine tune. For me, it took learning the hard way.
Responding to Discovery
When responding to RFPs or ROGs, if the objection is not specific to your case, then don’t use it. You should not be just clicking through ProDoc and highlighting every objection under the sun. If your client does not have a document, or the response is “none,” or “not applicable,” just say so. It should not be that complicated. When I see a myriad of objections come my way, my first thought is, “OK, let’s send that conference letter before we file a Motion to Compel.” Objections exist for a reason, and they should only be used when called for.
When I was a baby lawyer, I defended a Motion to Compel after I produced what I then considered a decent response – I sent every single thing I had. I was confused as to why the other side requested a hearing. When I called opposing counsel to ask why, they responded “I just need to get a ruling on these objections.” I was dumbfounded at the time, but their logic made sense: if you do not get a ruling on the objections the other side can assert them later, and turn up evidence at trial that they were not forced to disclose. From the other side’s standpoint, they could not risk me surprising them with evidence down the road. So long as objections remain, any evidence produced is subject to them. Now, I will regularly seek Motions to Compel, not only to get rulings on objections or to obtain something I need, but to keep the other side’s evidence out. If you do put forth a ton of objections, in addition to just looking foolish, you open yourself up to having to spend your clients resources defending a Motion to Compel, and possibly being hit up for attorney’s fees. Most judges I have encountered overrule the plethora of objections without hesitation. Further, objections that are obscured by numerous unfounded objections may be waived. What is worse is when you see the attorney squirm because they clearly farmed out the task without looking it over. Do not be that lawyer!
Please do not assert the objections of “equally available to opposing party” or the “marshalling evidence” (the latter of which is not considered a valid objection to an RFP) without having read In Re Sting Soccer Group, (No. 05-17-00317-CV (Nov. 30, 2017) (mem. op.), a Dallas civil case dealing with soccer uniforms, that examines many common discovery assertions. That case will also tell you that “all” “each” or “every” is not necessarily objectionable. Unfortunately, I still see these all the time. I bring that case to each Motion to Compel Hearing I attend, and often cite it directly in my Conference Letter that I send beforehand, which I use as an exhibit, that way the other side cannot complain they were not aware of this well-known case.
Do not waste your client’s resources by sending the “kitchen sink” RFPs and ROGs by selecting everything the practice manual has to offer. True, there are a few standard items I ask in every case. However, you should narrowly tailor them to your specific facts. No need to waste one of your 25 ROGs on something that will not help you. Boilerplate requests are also susceptible to legitimate objections (in contrast, narrowly tailored requests are harder to object to). The court can strike requests if it concludes they are not likely to lead to relevant evidence. The easiest place to start is the other party’s pleadings. Turn also to any existing discovery responses, inventories, or deposition transcripts. Make them prove their case, especially if you notice something unusual. Sometimes, you will find the other side just use canned language in their filings, and well-crafted discovery can flush out what they are really asking for. A little time and effort when drafting discovery may pay huge dividends if you seek an MSJ or Declaratory Judgment, or deposition later on.
Rule 194 Request for Disclosure are the only exception to the “canned” discovery rule. Just remember you cannot object when responding. I tend to do them in every case, even the non-contested ones. I typically put the 194 in my petition or counterpetition. This serves two purposes: 1) I do not forget; and 2) sometimes it seems “nicer” to serve it in the petition than to send a standalone request later on (which might make the other side want to serve full blown discovery in an otherwise amicable case). Remember that if you serve a request before their answer is due, they have 50 days to respond, so that may change your analysis.
This process is not supposed to be that hard. It can even be fun and an opportunity for creative lawyering, all it takes is a little patience and attention to detail. Always remember that “the purpose of discovery is to seek the truth, so disputes may be decided by what the facts reveal, not by what facts are concealed.” Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). (also taken from my Motion to Compel.)
Ryan R. Bauerle is an associate with Goranson Bain Ausley, PLLC in Plano. He obtained a BBA in Finance and a BA in Political Science from SMU in 2008, and his JD from Regent University in 2011. His practice includes divorces, custody cases, adoptions, complex property divisions, as well as both high-conflict and collaborative cases. Ryan earned his Board Certification in 2018.
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