Good Faith Letter to Opposing Counsel

In most personal injury cases, interrogatories that get passed back and forth between the parties provide little information that is useful art deposition or trial because of ridiculous objections and incomplete answers.  If you want to win your case at trial and  put real pressure on the defendant, you have to press for real answers. As plaintiffs’ lawyers, we have to hold the defendant’s feet to the fire or you are going to have a jury trial by ambush.

Below is a sample letter before a motion to compel is filed demanding more complete answers.  Why is this “Golden Rule” letter necessary when the answers are obviously deficient?  Most jurisdictions requires a meet and confer letter for deficient discovery request responses before you can file a motion to compel.  This is also true in federal court under Rule 37(f).

Laura T. Teal, Esquire

Bonner Kiernan Trebach & Crociata, LLP
1233 20th Street, N.W., 8th Floor
Washington, D.C. 20036

Re: Parson v. Starbucks
Case No. 10-C-10-018419 OT

More Litigation Samples

Dear Ms. Teal:

I have had an opportunity to review Defendant’s Responses to Requests for Production. These raise several issues that I must bring to your attention.

I do not believe that the responses I have received represent a good faith effort to provide discovery. Eleven of the seventeen responses I have received are subject to some sort of objection. This appears to be an exercise in legal gamesmanship rather than the real, good faith effort to provide discovery that is contemplated by the Maryland Rules. I’d like to lay our my concerns in hopes that you will modify your answers without the need to involve the court.

First, you include eight “general objections.” One big problem I have with these: the Maryland Rules do not permit general objections. Md. Rule 2-422(c) requires that the grounds for any refusal to produce must be fully stated in response to each specific request. If you believe that any of these individual requests are objectionable, please make your objections as required by the rule. The way you have made these general objections makes it impossible for me to tell which requests you think these objections apply to or why you think they are objectionable and I do not believe the Rules require me to guess.

You have objected to Request No. 4 on the basis that it is “vague, overly broad and unduly burdensome,” and that “it seeks information that is proprietary and confidential.” Surely you understand what material is sought by this request, otherwise, how could you determine that it “seeks information that is proprietary and confidential?” This request is directed at discovering documents or other materials relevant to the defendant’s policies and training regarding floor care, inspection and maintenance, such as guidelines showing how often floors are inspected, and what employees are supposed to do in the event of a hazard. You have not indicated whether any materials like this exist. Are there any documents like these? If there are, which ones do you contend are proprietary and confidential and why? You must at least tell me if any responsive materials exist, so that I may seek the assistance of the Court in resolving your objection.

You have objected to Request No. 6 on the basis that “it exceeds the scope of expert discovery under Rule 2-402(f).” Md. Rule 2-402(f) governs the production of statements given by parties or witnesses, not the scope of expert discovery. Even if you meant to refer to Md. Rule 2-402(g), which does address expert discovery, you are still wrong because the law requires the production of “any written report made by the expert” concerning the expert’s findings and opinions. The rest of the response says that defendant cannot respond because it has not yet selected experts. Now that defendant has named experts, please provide a response to this request.

You have objected to Request No. 7 on the basis that “it exceeds the scope of expert discovery under Rule 2-402(f).” Md. Rule 2-402(f) governs the production of statements given by parties or witnesses, not the scope of expert discovery. Even if you meant to refer to Md. Rule 2-402(g), that rule does not address the production of materials provided to expert witnesses. The rest of the response says that defendant cannot respond because it has not yet selected experts. Now that defendant has named experts, please provide a response to this request.

You have objected to Request No. 9 on the basis that “the request potentially seeks attorney work product and attorney-client privileged information.” You then go on to state that “no documents are being withheld pursuant to these privileges.” If there are no documents subject to these privileges, why are you objecting? You have also not said whether anything is being produced in response to Request No. 9. Please withdraw your objection and indicate what, if anything, is being produced in response to this request.

You have done the same thing in Response Nos. 10 and 11. Please withdraw these frivolous objections and provide responses to these requests.

You have objected to Request No. 12 on the basis that “it exceeds the scope of expert discovery under Rule 2-402(f).” Md. Rule 2-402(f) governs the production of statements given by parties or witnesses, not the scope of expert discovery. Even if you meant to refer to Md. Rule 2-402(g), that rule requires disclosure of “the grounds for each opinion…” which would include everything requested in Request No. 12. The rest of the response says that defendant cannot respond because it has not yet selected experts. Now that defendant has named experts, please provide a response to this request.

You have objected to Request No. 13 on the basis that it is “vague, overly broad and unduly burdensome, fails to describe the documents sought with reasonable particularity, and seeks documents that are proprietary and confidential.” This request is directed at discovering documents or other materials relevant to the defendant’s policies and training regarding floor care, and slips, spills, and falls. Surely you understand what types of materials this request is seeking? You have not indicated whether any materials like this exist. Are there any documents like these? If there are, which ones do you contend are proprietary and confidential and why? You must at least tell me if any responsive materials exist, so that I may seek the assistance of the Court in resolving your objection.

You have objected to Request No. 14 on the basis that it is “vague, overbroad and unduly burdensome, fails to describe the documents sought with reasonable particularity, and is not reasonably calculated to lead to the discovery of admissible evidence.” Surely you understand what types of materials this request is seeking
? Any documents containing recorded observations of common area safety. Like whether there was water pooled on the floor, to use an example relevant to this case. These kinds of materials would be likely to lead to the discovery of admissible evidence because they would be relevant to whether Defendant had notice of the defective condition. You have not indicated whether any materials like this exist. Are there any documents like these? You must at least tell me if any responsive materials exist, so that I may seek the assistance of the Court in resolving your objection.

You have objected to Request No. 16 on the basis that “it seeks information protected by attorney work product, attorney-client privilege and materials prepared in anticipation of litigation.” You need to tell me what material there is that is being withheld pursuant to any of these privileges, and which privilege you contend applies, so I may seek the assistance of the Court in resolving your claims of privilege. It is simply insufficient to refer me to Answer to Interrogatory No. 6, which itself suffers from the host of problems identified in my recent correspondence to you.

You have objected to Request No. 17 on the basis that “it seeks information protected by attorney work product, attorney-client privilege and/or materials prepared in anticipation of litigation.” You need to tell me what material there is that is being withheld under any of these privileges, and which privilege you contend applies, so I may seek the assistance of the Court in resolving your claims of privilege.

Obviously, I would like to resolve these issues so that we may concentrate on getting this case ready for trial. Please let me have a prompt response so that we can agree on as many of these issues as we are able, and if needed, present the remainder to the Court for resolution.

Very truly yours,
Frustrated Plaintiffs’ Lawyer

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