When you seek justice through litigation against an opponent with more resources, that party may try to prolong the case to increase the financial toll it has on you.
The goal is straightforward: To get you to give up and drop the case or accept a lowball settlement offer.
Prolonging litigation is a common strategy of insurers and third-party administrators (TPAs) in workers comp, personal injury, and auto accident cases. And one of their favorite tactics to delay payment of claims is to make baseless objections or provide incomplete or evasive answers to discovery requests (interrogatories, requests for production of documents, requests for admissions, etc.).
It is up to you to force your opponent to answer completely and provide the evidence you need at deposition and trial to win. Usually, courts are not involved in the discovery process unless a dispute arises.
Below is a sample letter to opposing counsel asking your opponent to fix inadequate discovery responses and give more complete answers.
This letter is often called a good faith letter. And it is needed under many courts’ rules before you can file a motion to compel discovery if the other party ignores your requests or provides evasive responses or move for sanctions if your opponent refuses to comply with the court’s discovery order.
That is because most jurisdictions have a meet and confer requirement, which orders lawyers and litigants to discuss resolving a discovery dispute before submitting a motion to compel.
I know. By the time you get to the discovery process in litigation, you might have little desire to cooperate with the adverse party. But many courts require it, and you can save yourself time, money, and frustration trying to work out these problems without a judge intervening.
I hope this information helps you get the information needed to recover the monies you deserve.
Do not hesitate to contact us for a free consultation about your tort claim. We have helped hundreds of auto accident victims and injured workers negotiate favorable settlements. And we can help you determine the best strategy to resolve your claim.
There are three reasons to meet and confer with your opponent when its discovery answers are evasive or incomplete.
First, the rules require it.
For example, Rule 37 of the Federal Rules of Civil Procedure (Failure to Make Disclosures or to Cooperate in Discovery; Sanctions) states that a party moving for an order compelling disclosure or discovery:
… must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
Rule 4:12 of the Rules of the Supreme Court of Virginia (Failure to Make Discovery; Sanctions) states that a motion to compel discovery:
… must be accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”
Many courts in other states have similar procedural rules.
Your goal in discovery should be to get the facts and evidence you need to tell a winning story at trial.
And if the opposing party’s obstructionist tactics prevent you from getting this information, you will want the court to sanction them. These sanctions may include monetary penalties, striking the pleadings or defenses, and excluding specific evidence.
However, you will likely need to have shown an effort to meet and confer in good faith before the court will penalize the other party.
Litigation is stressful, time-consuming, and expensive.
And though the desire to win every little fight with your opponent is understandable, it may backfire and cause you to exhaust your emotional and financial resources too soon.
By meeting and conferring in good faith, you can save yourself from some of the hassles of litigation and avoid getting bogged down in motion after motion during discovery.
Courts expect the parties to make a reasonable and good faith attempt at resolving discovery disputes.
A good faith attempt is more than arguing with opposing counsel. Instead, the law requires you to discuss the issues, compare views, exchange information (including statutes and case law supporting your position), and propose solutions to discovery fights without court interference.
Often this means more than exchanging a simple letter or e-mail. I recommend you meet with opposing counsel or talk by telephone to resolve the disputes.
The court may look at the following factors to determine whether a party has met and conferred in good faith:
Generally, the judge’s patience with the parties will decrease as the number of discovery motions increases. So, pick your discovery battles wisely.
Below are two sample letters demanding complete answers for use before filing a motion to compel.
The first letter applies to situations where the defendant has not answered discovery.
And the second letter applies to situations where the defendant answered discovery but raised frivolous objections and did not respond fully.
Re: Paul Plaintiff v. Doug Defendant
Dear Defense Attorney:
My firm represents Paul Plaintiff in his negligence claim against your client, Doug Defendant.
We submitted a set of Interrogatories and Requests for Production of Documents to your client on February 1, 2022.
I write to follow up on the responses to the discovery requests.
They are now past due, and I would like to resolve this discovery matter before filing a Motion to Compel.
Please provide your client’s responses within ten days.
If this amount of time is insufficient, please call or e-mail me, and we can determine a date that works.
Thank you for attending to this matter.
Sincerely,
Corey R. Pollard
Re: Pam Plaintiff v. Donna Defendant
Dear Defense Attorney:
This firm represents Pam Plaintiff in her action against your client, Donna Defendant.
On January 18, 2022, our office submitted a set of Interrogatories and Requests for Production of Documents to your client.
Thank you for answering Plaintiff’s discovery requests.
Unfortunately, after reviewing Defendant’s answers, I noticed several deficiencies. This letter addresses these deficiencies.
I want to resolve these issues without court intervention. And to that end, I ask you to supplement your answers.
Below are detailed descriptions of our problems with your responses.
YOUR OBJECTIONS
GENERAL OBJECTIONS:
You made six general, non-specific objections to every interrogatory and document requested.
PROBLEM:
Courts have held that generic, non-specific objections will not suffice when posed to Reasonable Interrogatories. Instead, objections to reasonable Interrogatories must be specific to each Interrogatory and explain or demonstrate precisely why or how the party is entitled to withhold from answering.
This Court “discourages” the use of general objections and finds “boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable.”
Your general objections make it challenging to determine what interrogatories and requests you think these objections apply to and the reason you find the questions improper. And the court’s rules do not require me to guess.
INTERROGATORY #5 and #6
You objected to, and your client refused to answer, these interrogatories requesting the number of COVID-19 patients treated in your hospital’s Intensive Care Unit (ICU) from May 1, 2020, through and including July 31, 2020, and how many COVID-19 patients died in the hospital during this period.
PROBLEM:
This question is relevant and proper based on this litigation’s subject matter.
Pam Plaintiff is an ICU nurse seeking workers compensation benefits for PTSD arising from numerous occupational exposures to COVID-19 deaths.
Therefore, the number of patients who died during this period is relevant to the litigation. Information is relevant if it bears on, or reasonably could lead to other matter that could bear on, any issues that are or could be here.
INTERROGATORY #9
This question asks when you received notice of Plaintiff’s PTSD diagnosis.
PROBLEM
Instead of giving the date, you provided a lengthy objection that does not answer the question.
This question calls for a simple answer to determine whether you acknowledge timely notice of the diagnosis.
INTERROGATORY #11
This interrogatory asks for the contact information of all hospital employees you believe know about the claim.
DEFICIENCY OF YOUR ANSWER TO INTERROGATORY #11
The answer is incomplete and evasive. For example, you have failed to provide the addresses, telephone numbers, and e-mail addresses of the persons identified in the response.
INTERROGATORY #14
This question asks for the names and contact information of all persons you might call to testify at trial.
PROBLEM
You objected on the basis this question seeks privileged information.
We submit that your position is incorrect.
Further, you fail to identify what privilege protects this information.
REQUEST FOR PRODUCTION #5
This request seeks documents or other materials relevant to Defendant’s policies, training, and supply of protective gear during the COVID-19 pandemic.
PROBLEM
You objected to this request and alleged it is vague, overly broad, and unduly burdensome.
However, you do not state whether these documents exist.
Nor have you answered why this request is burdensome.
Plaintiff’s Complaint alleges Defendant failed to provide protective gear during the pandemic. These documents, therefore, are relevant.
REQUEST FOR PRODUCTION #7
This request asks for photographs of the personal protective equipment (PPE) supplied to ICU nurses during the period in question.
PROBLEM
You objected to this request on the basis it seeks documents protected by the attorney-client communication privilege and the attorney work product doctrine.
However, you then state that you have not withheld photographs.
If you do not have documents responsive to this request, I ask you to withdraw the objection because it is frivolous.
The court rules require us to meet and confer in a good faith attempt to resolve our discovery disagreements. To satisfy this requirement, I ask you to review this letter, then call or e-mail me to schedule a meeting about these concerns. I am available next Wednesday or Thursday.
Sincerely,
Corey R. Pollard
Experienced and knowledgeable attorneys represent the insurance company.
Wouldn’t it be best if you were too?
If you are looking for help with a construction accident, medical malpractice, or motor vehicle crash case, my firm can help.
Call now for a free consultation: (804) 251-1620 or (757) 810-5614. See why others have voted us top lawyers for catastrophic accident claims.