Useful Discovery for Trial

A. The Complaint

A lawsuit begins when a Complaint or Petition for Damages is filed and served on the defendants.  The Complaint frames the issues in the case.  State law controls the specificity in which the claims must be stated.   For instance, Kansas is a notice pleadings state, which essentially means that you have to state your claims with enough detail to allow the defendants to have notice and/or an understanding of what claims are being asserted.   In Missouri, you have to plead facts, which simply means that a Missouri Petition is going to have more detail in it than a Kansas Petition.

In Kansas, the relevant rule is K.S.A. 60-208.  The rule reads as follows:

60-208
Chapter 60.–PROCEDURE, CIVIL
Article 2.–RULES OF CIVIL PROCEDURE

60-208. General rules of pleadings. (a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief to which the pleader deems such pleader’s self entitled. Every pleading demanding relief for damages in money in excess of $75,000, without demanding any specific amount of money, shall set forth only that the amount sought as damages is in excess of $75,000, except in actions sounding in contract. Every pleading demanding relief for damages in money in an amount of $75,000 or less shall specify the amount of such damages sought to be recovered. Relief in the alternative or of several different types may be demanded.

(b)   Defenses; form of denials. A party shall state in short and plain terms such party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or the pleader may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all averments, the pleader may do so by general denial, subject to the obligations set forth in K.S.A. 60-211, and amendments thereto.

(c)   Affirmative defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

(d)   Effect of failure to deny. Averments in a pleading to which a responsive pleading is required or permitted, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(e)   Pleading to be concise and direct; consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2)   A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in K.S.A. 60-211, and amendments thereto.

(f)   Construction of pleadings. All pleadings shall be so construed as to do substantial justice.

History: L. 1963, ch. 303, 60-208; L. 1976, ch. 252, § 1; L. 1990, ch. 203, § 1; L. 1997, ch. 173, § 4; July 1.

In Missouri, Supreme Court Rule 55.05 governs how a Pleading should be prepared as follows:

55.05. Pleading Setting Forth Claims for Relief Shall Contain

A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled. An initial pleading filed in the family court division of the circuit court shall have attached thereto a certificate stating whether any other case involving any party to the action or any child of such party has been filed in the family court division and, if so, the certificate shall identify to the extent known by style and case number every other case in the family court division, whether pending or previously adjudicated, involving any such party or child. If a recovery of money be demanded, the amount shall be stated, except that in actions for damages based upon an alleged tort, no dollar amount shall be included in the demand except to determine the proper jurisdictional authority, but the prayer shall be for such damages as are fair and reasonable. A party may argue at trial that a specific amount of damages should be awarded even though the prayer is for a fair and reasonable amount. Relief in the alternative or of several different types may be demanded.

(Adopted Jan. 19, 1973, eff. Sept. 1, 1973. Amended Laws 1976, p. 837, § 1; May 22, 1987, eff. Jan. 1, 1988; June 1, 1993, eff. Jan. 1, 1994; March 22, 1994, eff. Jan. 1, 1995.)

B. Interrogatories, Request for Production of Documents and Request for Admissions

A Petition should always be filed with written discovery to show you opposition that you are serious and that you are going to work your case.  The name of the game is moving the ball down the court and the quickest way to do this is to be proactive and keep your opponent working on your client’s case.  If you do not work the case, then the defense lawyer will find something else to work on and most likely forget about you and your client.

Discovery is the process in which the parties learn about each other’s lawsuit.  The information gathered during discovery is used to negotiate settlements and at trial.  The Rules of Civil Procedure offer us several tools in which we can gather information during discovery, including Interrogatories, Request for Production of Documents and Request for Admissions.

The Missouri Supreme Court rules describe the discovery process as follows:

56.01. General Provisions Governing Discovery

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

(b) Scope of Discovery. Unless otherwise limited by order of the Court in accordance with these rules, the scope of discovery is as follows:

  1. In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The party seeking discovery shall bear the burden of establishing relevance.
  2. Insurance Agreements. A party may obtain discovery of the existence and contents, including production of the policy and declaration page, of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part of all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this Rule 56.01(b)(2), an application for insurance shall not be treated as part of an insurance agreement.
  3. Trial Preparation: Materials. Subject to the provisions of Rule 56.01(b)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative, including an attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.
  4. Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

    (a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert’s name, address, occupation, place of employment and qualifications to give an opinion, or if such information is available on the expert’s curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogatory, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert’s hourly deposition fee.
    (b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

  5. Trial Preparations: Non-retained Experts. A party, through interrogatories, may require any other party to identify each non-retained expert witness, including a party, whom the other party expects to call at trial who may provide expert witness opinion testimony by providing the expert’s name, address, and field of expertise. For the purpose of this Rule 56.01(b)(5), an expert witness is a witness qualified as an expert by knowledge, experience, training, or education giving testimony relative to scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence. Discovery of the facts known and opinions held by such an expert shall be discoverable in the same manner as for lay witnesses.
  6. Approved Interrogatories and Request for Production. A circuit court by local court rule may promulgate ‘approved’ interrogatories and requests for production for use in specified types of litigation. Each such approved interrogatory and request for production submitted to a party shall be denominated as having been approved by reference to the local court rule and paragraph number containing the interrogatory or request for production.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

  1. that the discovery not be had;
  2. that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
  3. that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
  4. that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
  5. that discovery be conducted with no one present except persons designated by the court;
  6. that a deposition after being sealed be opened only by order of the court;
  7. that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
  8. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If a motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 61.01 apply to the award of expenses incurred in relation to the motion.

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.

(e) Supplementation of Responses. A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

(f) Stipulations Regarding Discovery Procedure. Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these Rules for other methods of discovery. Any stipulation under subdivision (2) shall be filed.

(Adopted March 29, 1974, eff. Jan. 1, 1975. Amended by L.1989, S.B. No. 127 et al., eff. Aug. 28, 1989; amended June 16, 1989, eff. Jan. 1, 1990; June 1, 1993, eff. Jan. 1, 1994; Sept. 28, 1993, eff. Jan. 1, 1994; Sept. 26, 1995, eff. July 1, 1996; June 25, 2001, eff. Jan. 1, 2002; June 21, 2002, eff. Jan. 1, 2003.)

What are Interrogatories?  They are a Plaintiff’s first opportunity to ask the opposition some questions to gather basic information, including:

  1. The names of any witnesses to the events at issue in the lawsuit;
  2. Basic background info for the named parties;
  3. Whether the named parties have been properly identified in the Petition;
  4. The existence of insurance coverage;
  5. A general description of the events at issue in the suit;
  6. Other similar incidents; etc…

More specific questions should be asked in a deposition.  Frankly, any question that requires much thought to answer should be asked in a deposition instead of by way of an interrogatory.  Although the party must sign off the interrogatory answers, they are for the most part prepared by the attorneys.  On the other hand, the deposition questions must be answered by the client and a judge will shut-down an unruly lawyer who improperly speaks on behalf of his client.

The Missouri Supreme Court Rules relating to Interrogatories read as follows:

57.01. Interrogatories to Parties

(a) Scope. Any party may serve upon any other party written interrogatories. Interrogatories may relate to any matter that can be inquired into under Rule 56.01. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

(b) Issuance.

  1. Form. Interrogatories shall be in consecutively numbered paragraphs. The title shall identify the party to whom they are directed and state the number of the set of interrogatories directed to that party.
  2. When Interrogatories May be Served. Without leave of court, interrogatories may be served on:
    (A) A plaintiff after commencement of the action, and
    (B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.
  3. Service. Copies of the interrogatories shall be served on all parties not in default. The party issuing the interrogatories shall also provide each answering party an electronic copy, in a commonly used medium such as a diskette, CD-ROM or as an e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher. In addition to the information normally in a certificate of service, the certificate of service shall also state:
    (A) The name of each party who is to respond to the interrogatories;
    (B) The number of the set of interrogatories,
    (C) The format of the electronic copy and the medium used to transmit the electronic copy to the responding party.
    At the time of service, a certificate of service, but not the interrogatories, shall be filed with the court as provided in Rule 57.01(d).

(c) Response.

  1. (1) When the Response is Due. Responses shall be served within 30 days after the service of the interrogatories. A defendant, however, shall not be required to respond to interrogatories before the expiration of 45 days after the earlier of:
    (A) The date the defendant enters an appearance, or
    (B) The date the defendant is served with process.
    The court may allow a shorter or longer time.
  2. Form. The title of the response shall identify the responding party and the number of the set of interrogatories. The response to the interrogatories shall quote each interrogatory, including its original paragraph number, and immediately thereunder state the answer or all reasons for not completely answering the interrogatory, including privileges, the work product doctrine and objections.
  3. Objections and Privileges. If information is withheld because of an objection, then each reason for the objection shall be stated. If a privilege or the work product doctrine is asserted as a reason for withholding information, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.
  4. Option to Produce Business Records. If the answer to an interrogatory may be derived or ascertained from:
    (A) The business records of the party upon whom the interrogatory has been served, or
    (B) An examination, audit or inspection of such business records, or
    (C) A compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.
  5. Signing. Answers shall be signed under oath by the person making them. Objections shall be signed by the attorney making them or by the party if the party is not represented by an attorney.
  6. Service. The party to whom the interrogatories were directed shall serve a signed original of the answers and objections, if any, on the party that issued the interrogatories and a copy on all parties not in default. The certificate of service shall state the name of the party who issued the interrogatories and the number of the set of interrogatories.

    At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 57.01(d).

(d) Filing. Interrogatories and answers under this Rule 57.01 shall not be filed with the court except upon court order or contemporaneously with a motion placing the interrogatories in issue. However, both when the interrogatories and answers are served, the party serving them shall file with the court a certificate of service.

The certificate shall show the caption of the case, the name of the party served, the date and manner of service, the designation of the document, e.g., first interrogatories or answers to second interrogatories, and the signature of the serving party or attorney. The answers bearing the original signature of the party answering the interrogatories shall be served on the party submitting the interrogatories, who shall be the custodian thereof until the entire case is finally disposed.

Copies of interrogatory answers may be used in all court proceedings to the same extent the original answers may be used.

(e) Enforcement. The party submitting the interrogatory may move for an order under Rule 61.01(b) with respect to any objection to or other failure to answer an interrogatory.

(f) Use at Trial. Interrogatory answers may be used to the extent permitted by the rules of evidence.

(Adopted March 29, 1974, effective January 1, 1975. Amended June 1, 1993, effective January 1, 1994. Amended September 26, 1995, effective July 1, 1996. Amended April 27, 1999, effective January 1, 2000. Amended June 21, 2005, effecitve, January 1, 2006.)

Some courts require the use of Form Interrogatories for certain cases.  For instance, Jackson County, Missouri has Form Interrogatories for Automobile Wreck cases.  See Missouri Local Rule 32.2.1 – Form 801.

Request for Production of Documents are used to gather all of the written materials, videos, photos, recordings and other things that the opposition may have in their possession.  Although there is a limitation in most states as to how many Interrogatories you can serve on the other side, there generally is no limit on how many documents and things that you can request.  Often times, lawyers will send out new Requests after each deposition to gather up all of the new documents and things referenced throughout the deposition.  This strategy will keep your opponent focused on your case, which is exactly what you want if you are the Plaintiff.  Frankly, this is also good for the defense, because they can continue billing their files.

The Missouri Supreme Court rule relating to Request for Production reads as follows:

58.01. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

(a) Scope. Any party may serve on any other party a request to:

  1. Produce and permit the party making the request, or someone acting on the requesting party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; or
  2. Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, and photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 56.01(b).

This Rule 58.01 does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

(b) Issuance.

  1. Form. In consecutively numbered paragraphs the request shall set forth the items to be inspected, either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts. The title shall identify the party to whom the requests are directed and state the number of the set of requests directed to that party.
  2. When Requests May be Served. Without leave of court, requests may be served on:
    (A) A plaintiff after commencement of the action, and
    (B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.
  3. Service. Copies of the requests shall be served on all parties not in default. The party issuing the requests shall also provide each responding party an electronic copy in a commonly used medium, such as a diskette, CD-ROM or as an e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher. In addition to the information normally in a certificate of service, the certificate of service shall also state the:
    (A) Name of each party who is to respond to the requests;
    (B) Number of the set of requests,
    (C) Format of the electronic copy and the medium used to transmit the electronic copy to the responding party.
    At the time of service, a certificate of service, but not the requests, shall be filed with the court as provided in Rule 58.01(d).

(c) Response.

  1. (1) When Response is Due. Responses shall be served within 30 days after the service of the request. A defendant, however, shall not be required to respond to the request before the expiration of 45 days after the earlier of:
    (A) The date the defendant enters an appearance, or
    (B) The date the defendant is served with process.
    The court may allow a shorter or longer time.
  2. Form. The title of the response shall identify the responding party and the number of the set of the requests. The response shall quote each request, including its original paragraph number, and immediately thereunder state that the requested items will be produced or the inspection and related activities will be permitted as requested, unless the request is objected to, in which event each reason for objection shall be stated in detail.
  3. Objections and Privileges. If information is withheld because of an objection, then each reason for the objection shall be stated. If a privilege or the work product doctrine is asserted as a reason for the objection, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.
  4. Method of Production. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.
  5. Signing. The response shall be signed by the attorney or by the party if the party is not represented by an attorney.
  6. Service. The party to whom the requests were directed shall serve a signed original of the response and objections, if any, on the party that issued the requests and a copy upon all parties not in default. The certificate of service shall state the name of the party who issued the requests and the number of the set of requests.

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 58.01(d).

(d) Filing. The request and responses thereto shall not be filed with the court except upon court order or contemporaneously with a motion placing the request in issue. However, both when the request and responses are served, the party serving them shall file with the court a certificate of service. The certificate shall show the caption of the case, the name of the party served, the date and manner of service, and the signature of the serving party or attorney. Each party filing a certificate shall maintain a copy of the document that is the subject of the certificate until the case is finally disposed.

(e) Enforcement. The party submitting the request may move for an order under Rule 61.01(b) with respect to any objection or other failure to respond to the request or any part thereof or any failure to permit inspection as requested.

(Adopted March 29, 1974, effective January 1, 1975. Amended June 1, 1993, effective January 1, 1994. Amended June 21, 2005, effective January 1, 2006.)


CONCLUSION

Cases are often won in discovery.  Since most cases settle, the information obtained throughout the course of discovery is extremely important.  The key is keeping all of the players on their tows and in the game.  The more time that the defense spends on your client’s case, the more important it becomes!

The Shachtman Law Firm