Canned Discovery Responses
by Terrence R. Berres
You surely have been faced with "canned" discovery requests. These are the standard sets opposing counsel serves in case after case with the same potentially objectionable questions. This article sets forth some common discovery requests and topics and then suggests form objections with citation to Wisconsin authority, when available. Citations are included and recommended to put opposing counsel in the position of having to find and cite authority in challenging the objection. I hope these serve as a useful reference or as a basis for your own "canning".
INSTRUCTIONS AND DEFINITIONS. These sometimes go on for pages and include items of no obvious connection to the case at hand. They may also include unusual definitions of key terms, e.g., "you" or "document". If you respond without comment, you may be deemed to have agreed to be bound by these definitions in your responses. Instead, consider objecting to the instructions and definitions to the extent they purport to place any obligation upon a responding party beyond what is required by Wis. Stat. sec. 804.08 for Interrogatories, Wis. Stat. sec. 804.09 for Request for Production, and Wis. Stat. Sec. 804.11 for Request for Admission.
TIME, PLACE AND MANNER. You may receive sets of requests which ask that the requested documents be copied and mailed. This may be a mutual convenience. It may, however, not be such a convenience. For example, if the records are voluminous and if many, although discoverable, are unlikely to be useful to your opponent, it would be appropriate to object to copying and mailing them. My suggestion is objection on the ground that the request fails to specify a reasonable time, place and manner of production, Wis. Stat. sec. 804.09(2).
SCOPE OF DISCOVERY. You surely have made this objection in some form. Why not use the language of the applicable rule and cite it? Object on the ground that the information sought is not admissible in evidence and does not appear reasonably calculated to lead to the discovery of admissible evidence, Wis. Stat. sec. 804.01(2)(a). An example of a canned question to which this objection could apply is an interrogatory regarding reinsurance.
DILIGENCE. Often, one of the first questions in canned interrogatories asks if you have been diligent in preparing the responses. Those of us with a sarcastic streak are tempted to formulate an answer. Fight that temptatation with an objection on the ground that the diligence of a responding party in investigating or in preparing a response to discovery is not discoverable, see State ex rel. Dudek v. Circuit Court, 34 Wis. 2nd 559, 150 N.W.2nd 387, 407 (1967). A frequently seen more specific inquiry into diligence is an interrogatory asking which documents were referred to in preparing responses. To this you may object on the attorney work product grounds, see State ex rel. Dudek v. Circuit Court, 34 Wis. 2nd 559, 150 N.W. 2nd 387, 404 (1967). The point of discovery is to obtain information about the claims or defenses involved, not to find out how the case has been investigated or defended. Note that the court may have discretion to order disclosures beyond the scope of discovery by your opponent. The most common example is a provision in a scheduling order requiring disclosure of which lay witnesses you intend to call at trial. On the point at hand, Rule 4(b)(1) of the Milwaukee County Circuit Court Rules Governing Actions Subject To Summary Proceedings For Business Disputes, effective January 1, 1996, requires providing "a list of persons relied upon in connection with that party's preparation of its complaint, answer, counterclaim, reply, crossclaim, or third-party claim...", Wisconsin Bar Litigation News, Vol. 20, No. 4, November, 1995, p. 9.
WORK PRODUCT. This is probably one of your more frequent objections. Again, why not use the language of the applicable rule and cite it? Object on the ground that the information sought was obtained by a representative of the responding party in anticipation of litigation or for trial and answering would disclose the representative's mental impressions, conclusions, opinions or legal theories, Wis. Stat. sec. 804.01(2)(c)1. Note that having the objection available in this form serves as a brief checklist and a reminder that the privilege extends beyond attorney work product.
INVESTIGATORS. You can properly object on the ground that the identity of persons who investigated on behalf of a party is not discoverable. But, you say, witnesses names must be disclosed; doesn't that include investigators? No, State ex rel. Dudek v. Circuit Court, 34 Wis. 2nd 559, 150 N.W. 2nd 387, 407 (1967).
EXPERTS. You can object to disclosure of anything beyond the identity of the experts you expect to call as witnesses at trial in the absence of a court order requiring more, Wis. Stat. sec. 804.01(2)(d)1. Many courts routinely require additional disclosure in the scheduling order. These orders usually set dates for disclosures of experts and lay witnesses. I am not advocating objection to responding to discovery regarding experts or other witnesses until the date for disclosure in a scheduling order but I have seen such objections.
SURVEILLANCE. Your opponent asks if you have any photographs of the opposing party. You may object on the ground that the existence of photographic surveillance done in anticipation of litigation or for trial need not be disclosed, Ranft v. Lyons, 163 Wis. 2nd 254, 471 N.W. 2nd 254, 261-62 (Ct. App. 1991).
STATEMENTS. Your opponent asks for production of copies of all statements. You must produce that party's statement, Wis. Stat. sec. 804.01(2)(c)2. You may object to production of any other statement on the ground that it was obtained by a representative of the responding party in anticipation of litigation or for trial and production would disclose the representative's mental impressions, conclusions, opinions or legal theories, Wis. Stat. sec. 804.01(2)(c)1.
PHOTOGRAPHS. Your opponent requests copies of photographs of cars involved in the accident or the accident scene or other obvious items. You may object on the ground that these were obtained by a representative of the responding party in anticipation of litigation or for trial and production would disclose the representative's mental impressions, conclusions, opinions or legal theories, Wis. Stat. sec. 804.01 (2)(c)1., Crull v. Preferred Risk Mutual Insurance Company, 36 Wis. 2nd 464, 153 N.W. 2nd 591, 594 (1967). That case holds that photographs are protected work product, in the absence of subsequent changes and opportunity, with due diligence, of the party seeking discovery to have taken photographs before those changes.
ADMISSIONS. Review the request. You may be able to object on the ground that the requested admission does not refer to a statement of fact, an opinion of fact, or the application of law to fact, Wis. Stat. sec. 804.11(1)(a).
EXPLANATION OF DENIAL. Your opponent may include with a request for admission an interrogatory asking you to give the basis for any denial. You may object on the ground that no explanation of a denial is required, Wis. Stat. sec. 804.11(1)(b). Note that this objection is not available for a qualified denial or a response of insufficient information to admit or deny, only for an outright denial.
Word processors and photocopiers have been an immense help in our practice but they do create the potential for form abuse, the use of a form with regard only for its general applicabiltiy to the case without examination of specifics. I have suggested form objections to form discovery with the hope that they will lead to to better use of form discovery and the technology that lead to it.
CTCW News Vol. XI, No. 1, Winter 1996
Published by Civil Trial Counsel of Wisconsin
Revised March 6, 2005.