Discovery Objections and Responses

I hate to spend time litigating discovery issues.

But at the same time, I don't want to let an opposing party gain an advantage because its attorney isn't following or doesn't understand the rules.

This comes up when attorneys make improper objections.

Here's the game-plan when we receive improper objections to discovery requests:

1. Email opposing counsel and ask that the objection be withdrawn and a full answer provided.

2. If that doesn't happen within a week, set a discovery conference.

3. If that doesn't resolve the issue, bring a motion to compel a full answer, strike the objection and pay sanctions.

There are a host of common and improper objections but these are two that we see most often.

Expert Disclosure

We ask for the other side to provide information about its experts. The other side responds that it will disclose information by the deadline in the case schedule for disclosing experts. (The case schedule sets a deadline for disclosure whether or not information has been sought in discovery.)

But that's not how it works. King County Local Rule 26(e), for example, reads:

Discovery Not Limited. This rule does not modify a party’s responsibility to seasonably supplement responses to discovery requests or otherwise to comply with discovery before the deadlines set by this rule.

If a defendant is asked about experts but does not provide information about them and their opinions, it risks having that expert excluded and not being able to testify at trial.

[The best practice for both sides is to disclose experts and the topics about which they're expected to testify as soon as they're retained--disclosure doesn't mean they have to be called later.]

Equal Availability

I'm not sure whether this objection is the product of laziness or being picked last in elementary school.

Some defense attorneys will object--when asked for information they clearly have in their files--by objecting that the plaintiff has access to it through other channels.

For example: What real property does defendant own in Washington? Objection. Equal Availability. Plaintiff could search the public records in each Washington county and obtain this information.

Ridiculous.

Fortunately this objection is explicitly preempted in the rules.

CR 33(b) reads: “An interrogatory otherwise proper is not objectionable merely because the propounding party may have other access to the requested information or has the burden of proof on the subject matter of the interrogatory at trial.”

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Systematically dealing with these micro-aggressions sends the appropriate message to the other side ("don't tread on me") and keeps the file clean so there doesn't need to be any radical backfilling or contortion on the eve of trial.