1. Drafting Good Discovery: Admissions and Interrogatories George B. Murr Advanced Civil Discovery The University of Houston Law Foundation Continuing Legal Education

2. George B. Murr 1300 Post Oak Boulevard, Suite 2500 Houston, Texas 77056 Voice: (713) 871-6749 Fax: (713) 960-1527 gmurr@bmpllp.com gmurr@bmpllp.com

3. Drafting Good Discovery II.Draft and issue written discovery requests that develop each of the issues. I.Draft and execute a discovery plan according to the issues and the budget in the case. IV.Utilize negotiations with opposing counsel whenever advantageous and whenever possible. III.Craft written discovery requests to avoid disputes and to achieve results.

4. III.Avoid issuing repeated discovery requests seeking the same evidence. Drafting Good Discovery I.Avoid issuing boilerplate discovery requests. II.Avoid issuing boilerplate discovery objections. IV.Avoid costly discovery disputes and discovery battles.

5. Outline Handout The outline handout provides comprehensive research and analysis of the rules and controlling authority regarding issuing written discovery requests. The appendix to the handout contains some suggested coordinated written discovery requests and commentary on how to use them.

6. Handout Organization I.Discovery Plans Under the Texas Rules of Civil Procedure IV.Discovery Planning III.Requests for Admission in Complex Cases II.Interrogatories in Complex Cases V.Appendices: Example Discovery Requests

7. Drafting Good Discovery II.Draft and issue written discovery requests that develop each of the issues. I.Draft and execute a discovery plan according to the issues and the budget in the case. IV.Utilize negotiations with opposing counsel whenever advantageous and whenever possible. III.Craft written discovery requests to avoid disputes and to achieve results.

8. Draft a Discovery Plan

9. Discovery Planning It is the analysis involved in crafting and issuing written discovery that requires the strategic planning that is determinative of success at this stage of the litigation. Discovery in complex cases begins with the issuance of interrogatories, requests for admission and requests for production.

10. Discovery Planning Even if every aspect of this plan is not implemented, the practitioner may utilize elements of such a plan to achieve better results. Key to success at the discovery stage of litigation is having a discovery plan. This involves the creation of a practical, strategic formula for the planning and drafting of written discovery.

11. Drafting a Discovery Plan III.Determine how best to obtain the evidence you need from what is available. I.Ascertain what you need to prove and what you will need to prove it. II.Make a calculated and informed judgment as to what evidence is available.

12. I.Ascertain what you need to prove and what you will need to prove. A.Analyze the pleadings, client documents and initial disclosures for issues in dispute. C.Seek dispositive issues as much as possible. B.Examine the elements of the causes of action or affirmative defenses at issue.

13. II.Make a calculated and informed judgment as to what evidence is available. A.Focus on the issues gleaned from your analysis to pursue as issues in discovery. C.Avoid wasting discovery requests that seek to sample the landscape. B.To the extent possible, obtain information from informal discovery.

14. III.Determine how best to obtain the evidence you need from what is available. A.Proceed as efficiently as possible keeping in mind client budget requirements and any submitted client budget or litigation plan. B.Evaluate the evidence from the perspective of its relative value in relation to your need for it.

15. Draft Discovery Requests

16. Determine the Best Means of Obtaining the Evidence You Need III.Note the advantages and disadvantages of each form of written discovery request. I.Begin drafting written discovery requests in accordance with your discovery plan. II.Draft discovery requests focusing on dispositive elements of causes of action and defenses.

17. III.Note the advantages and disadvantages of each form of request. B.Request for Admission advantages and disadvantages. See pp. 17-21 of the Handout A.Interrogatory advantages and disadvantages. See pp. 8-15 of the Handout

18. A.Interrogatory advantages 3.Interrogatories can identify and narrow an opposing party’s contentions. 2.Interrogatories can require the opponent to examine records and conduct research to prepare a factual answer. 1.Interrogatories are relatively inexpensive.

19. A. Interrogatory advantages (cont.) 6.Interrogatories can be phrased precisely. 5.Interrogatory answers may limit the evidence introduced at trial. 4.Interrogatories to corporations require a response based on the collective knowledge of the corporation.

20. A.Interrogatory disadvantages 3.Interrogatory answers are usually calculated and self-serving, unless quantified. 2.Interrogatory answers are generally from the attorney not the party. 1.The number of permissible interrogatories is limited.

21. A.Interrogatory disadvantages (cont.) 6.Interrogatory answers must be offered and admitted in evidence to be probative. 5.Interrogatory answers may be used as evidence only against certain parties. 4.Interrogatory responses may be obscured by objections.

22. B.Request for admission advantages 1.Requests for admission require the other party to take a position. 2.Responses are binding upon the responding party. 3.Requests for admission can be outcome determinative.

23. B.Request for admission advantages (cont.) 5.Unlimited requests available. 4.A false denial can be the basis for sanctions. 7.Reasonable inquiry required by opposition. 6.Must admit so much as true, deny remainder.

24. B.Request for admission disadvantages 1.Requests for admission may only be served on parties to the case. 2.Responses are binding only upon the responding party. 3.Responses may only be used in the current case.

25. B.Request for admission disadvantages (cont.) 5.Denial of a request for admission has no preclusive effect. 4.Requests for admission rarely resolve matters genuinely in dispute. 7.Withdrawal of admitted requests is relatively easy. 6.Obtaining useful responses may be time- consuming and expensive.

26. Craft Written Discovery

27. Crafting Coordinated Requests II.Follow up to obtain supporting information with an interrogatory. I.Begin with a request for admission. IV.Review responses and prior issues and evaluate new issues for discovery, and proceed anew. III.Request any documentation supporting the response to the request for admission or interrogatory.

28. I.Begin with a request for admission. Insurance Company X issued a professional liability policy insurance policy (“Policy”) to cover professionals working for your client (“Client”). The Policy contains an exception to coverage for any prior existing claims (“Prior Claims”) for which your Client has received service of process. You seek to show that there was coverage and that the exception does not apply because your Client was never served with process regarding any Prior Claims.

29. I.Begin with a request for admission (cont.). Request for Admission No. 1: Admit that Client was never served with process regarding any Prior Claims.

30. II.Follow up to obtain supporting information with an interrogatory. Interrogatory No. 1: If you did not unequivocally admit Request for Admission No. 1, then please provide the following information regarding any Prior Claim for which you assert Client received service of process.

31. II.Follow up to obtain supporting information with an interrogatory (cont.). (a)Parties to the Prior Claim; (b)Court and Cause Number of the Prior Claim; (c)Date you allege service of process was perfected, if any.

32. III.Request any documentation supporting the response to the request for admission or interrogatory. Request for Production No. 1: Please produce all documents that support your denial of Request for Admission No. 1.

33. III.Request any documentation supporting the response to the request for admission or interrogatory (cont.). Request for Production No. 2: Please produce all documents that constitute evidence of service of process on Client of any Prior Claims.

34. Negotiate Discovery If Possible

35. Utilize Negotiations Whenever Advantageous and Possible II. Agree to disagree upon what aspects of discovery are in dispute, pick your battles before going to court, avoid making the case solely about discovery. I.Negotiate smooth discovery with opposing counsel as much as possible. III. Take advantage of Discovery Plan 3 under the Texas Rules of Civil Procedure

36. George B. Murr 1300 Post Oak Boulevard, Suite 2500 Houston, Texas 77056 Voice: (713) 871-6749 Fax: (713) 960-1527 gmurr@bmpllp.com gmurr@bmpllp.com