Affirmative Defenses (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses.  This list is updated continuously, but certainly isn't complete--if you have a suggested addition, please contact me or comment below.
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C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
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Checklist & Best Practices to Consider:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
***DO NOT PLEAD A LAUNDRY LIST.  As stated above, the vast majority of these affirmative defenses will not apply to any given case--they are intended as a brainstorming tool, and certainly should not be included in full.  Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.
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List of Affirmative Defenses (Partial):
- failure to state a claim upon which relief may be granted (almost always use)
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
- fraud in the inducement
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- necessity
- execution of public duty
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party

- implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)

- failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
- fair use (copyright).  See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).  (hat tip Bill Shea)

- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
- ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)
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Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

Objections to Written Discovery Requests: Overly Broad

      An overly broad discovery request lacks specificity as to time, place, and/or subject matter being requested. However, overbroad is not a valid objection unless it can be shown that the request imposes an undue burden or seeks discovery that is not relevant to the subject matter of the case. When objecting to discovery on the grounds of over-breadth, be prepared to be specific and provide plenty of support for your objection. The producing party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents...unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008).

      Objections based on over-breadth often relate to the issue of relevance of the subject matter. Pursuant to both C.R.C.P. 26(b)(1) and F.R.C.P. 26(b)(1), any discovery sought must be likely to lead to the discovery of admissible information (which, to be admissible, must be relevant). Relevancy is broadly construed under the rules, and C.R.C.P. 26(b)(1) states that, “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Thus, when objecting to discovery on the grounds that it is overly broad and lacking relevance, be prepared to demonstrate that the requested discovery either (1) does not come within the scope described in Fed.R.Civ.P. 26(b)(1); or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.  Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D. Colo. 2004).  However, “when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.” Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008).

 

      Following are some sample objections to overly broad discovery requests, including applicable legal authority. Always verify case law to ensure that it is up-to-date.

     1. This discovery request is so broad and unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive. To comply with the request would be an undue burden and expense. The request is calculated to annoy and harass. “Although the law generally favors discovery, the scope of discovery is not limitless.” Silva v. Basin Western, Inc., 47 P.3d 1184, 1188 (Colo. 2002).

     2. Objection is made to the production request because it is overly broad and is not in compliance with C.R.C.P. 34(b), which requires the request to specify the items to be produced or inspected, either by individual item or category, and describe with reasonable particularity each item and category.

     3. This request is overbroad, and it constitutes an abuse of the discovery process, because it purports to ask [Producing Party] to plead and prove its entire case, and to marshal all evidence, in response to one written interrogatory.

     4. This interrogatory is overly broad and unduly burdensome because it requires [Producing Party] to create and provide the equivalent of a lengthy narrative or otherwise detailed account, witness by witness, of its entire case. “Blockbuster interrogatories constitute an unduly burdensome request as a matter of law and are an abuse of the discovery process. Interrogatories should not require a party to provide a narrative account of his case.” Grynberg v. Total S.A., Inc., Civil Action No. 03-cv-01280-WYD-BNB, 2006 U.S. Dist. LEXIS 28854 *18 (D. Colo. May 3, 2006).

     5. This request is overly broad and unduly burdensome because it attempts to require [Producing Party] to provide a narrative account of each potential witness’ anticipated testimony and to develop a narrative account of each and every potential defense, affirmative defense, and counterclaim [Producing Party] may assert in this action. “Each interrogatory should consist of a brief, simple, direct, and unambiguous question, dealing with one point only. The question should be objective and non-argumentative. They should not seek narrative answers or attempt to argue, cross-examine, or impeach.” Hilt v. SFC. Inc., 170 F.R.D. 182, 186-187 (D.Kan. 1997).

      Objecting to a discovery request on the grounds that it is overly broad presents both a challenge and an opportunity.  Carefully frame the issues, provide specific details and facts, and support your objection with the appropriate legal authority.  Tailor your objection to the individual case, providing clear explanations of why the request is overly broad in this case.  Effectively doing so demonstrates to the court that you are not making “boilerplate” objections, and provides you with an opportunity to prevail over counsel who abuse the discovery process.

Objections to Written Discovery Requests: Unnecessarily Burdensome

     Objections that a discovery request is unduly burdensome, oppressive, or unreasonably duplicative are often valid, but opposing counsel will probably initially assume this is merely a "boilerplate objection."

     All discovery is subject to the limitations imposed by C.R.C.P. 26(b)(2)(F) for cases filed in Colorado state courts, and by F.R.C.P. 26(b)(2)(C) for cases filed in United States District Court for the District of Colorado. Both the State and Federal Rules require that the court must limit the frequency or extent of discovery if it determines that:

      (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

      (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action;

      (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues; and

      (iv) whether, because of the number of parties and their alignment with respect to the underlying claims and defenses, the proposed discovery is reasonable.

     If you decide to object based on subjective grounds such as unnecessarily burdensome, oppressive, or unreasonably duplicative, the specific discovery response should state what less-burdensome scope is appropriate. Your written response should clearly convey how the objection is being used to constrain the scope of the party’s document production, or the information being provided in response to an interrogatory. By using this approach, you will comply with the Rules’ requirement that objections be stated in response to each specific discovery request, and you will avoid a lack of clarity and reduce the likelihood that the court will view your objection as invalid. Bear in mind that while an objection on the grounds of unnecessarily burdensome is often valid, it is rarely a basis for not providing a response.  (Subject to such objection and without waiving same, Plaintiff responds as follows…)  Instead, this objection is normally useful to protect the responding party when they are making only a partial response to the request.

     Following are some suggested ways in which you may state your objection. Be sure to tailor the objection to your specific discovery response and the facts of your case:

     -  It would be unduly burdensome, oppressive, and unreasonably duplicative to again produce the requested information. [Provide a brief description of when/in what form the same information has already been produced.]

     -  This discovery request is so broad and unlimited as to time and scope as to be an unwarranted annoyance, embarrassment, and is oppressive. To comply with the request would be an undue burden and expense on the [Producing Party]. The request is calculated to annoy and harass Plaintiff. [Expound on time, scope, burden and expense in your response.] 

     -  Objection is made to the production request because the discovery sought is obtainable from some other source that is more convenient, less burdensome, and less expensive. [Consider doing the math to support this objection; provide information about the source that is less burdensome.]

     -  Objection is made to the production request because the burden and expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.  [Explain specifically why this is so].

     -  Objection on the basis and to the extent that the information requested requires the production of documents that are in the possession or control of a third party and are not in the possession or control of [Responding party]. [Responding party] further objects to the production of documents that are already in the possession of [Requesting party] or subject to his/her control as such production would be unduly burdensome to [Responding party].

Determining the Scope of Preservation of Evidence

The duty to preserve evidence requires the producing party to make a good faith effort to identify and manage relevant discoverable information.   Once the party recognizes when the duty to preserve attaches, the next step is to determine what potentially discoverable information must be preserved.  See,  Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332, 336 (D.N.J. 2004) (“…while a litigant is under no duty to keep or retain every document in its possession, even in advance of litigation, it is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”).  And because the vast majority of business information is now generated electronically without ever being printed to paper, the scope of preservation naturally includes electronically stored information (ESI).   Determining the scope of preservation of ESI presents a great challenge and must be balanced with a party’s right to continue to manage its electronic information and operate its business in a relatively normal fashion.

Preservation issues should be addressed at the outset of litigation, and both sides should be prepared to discuss the matter at the initial meet and confer sessions.  All parties are responsible for taking steps to preserve relevant evidence, and pursuant to Fed. R. Civ. P. 26(b)(2)(C) need to consider the cost, burden and necessity of preserving the information.  In Colorado state court, there is substantially less case law related to preservation, especially of ESI, but a good rule of thumb would be to ensure that one conforms to the requirements under the Federal Rules as well as any unique Colorado requirements.

Following are some suggestions to assist you in determining the scope of preservation:

• Consider the complexity of the case and seek cooperation, common ground, and fiscal reasonableness.
• What is the cost of production compared to the amount in controversy?
• What are the resources of each party?  What is the ability of each party to control costs, and what is its incentive to do so?
• What is the relevance of the evidence relative to the claims and defenses in the case?
• Consider the need to protect privileged, proprietary, or confidential information (including trade secrets).
• Know where a party’s electronic information may be found.
• Avoid unreasonable, overly broad, burdensome, or unnecessarily costly requests to produce ESI.  Consider collecting data from repositories used by key individuals rather than searching through an organization’s entire electronic storage systems.
• Apply reasonable selection criteria (search terms, date restrictions, folder designations, etc.).
• Determine the need for preservation and production of ESI that may not be apparent to ordinary employees or a party’s records custodians.
• What is the ease of accessing the information, and is it available from other sources?
• Is the ESI stored in such a way that it is unreasonably more costly or burdensome to access?  See, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003) ("...plaintiff entitled to all emails and electronic documents relevant to employment discrimination claim, including those only preserved on backup tapes; however, given burden and expense of restoring inaccessible backup tapes, a cost-shifting analysis is appropriate.”)
• Could a subset or representative sample of the requested ESI be provided to determine whether production of additional information is warranted?
• Identify potentially relevant materials that are most critical or most difficult to preserve/collect.
• Know document retention and destruction policies and practices--as soon as the duty to preserve has attached, immediately suspend any document destruction or data deletion policies until they can be reviewed to ensure compliance with preservation duties.
• Has a party deleted, discarded or erased any ESI after litigation was commenced, or after the party was aware that litigation was reasonably foreseeable? (Spoliation is defined as the destruction or failure to preserve resulting in the loss of evidence in pending or reasonably foreseeable litigation. Silvestri v. General Motors, 271 F.3d 583, 589 (4th Cir. 2001)).

It may be possible to reach a stipulation as to the extent of preservation required in a given case.  Where a stipulation is not reached, it is wise to advise the opposing party in writing as to the scope of preservation duties you believe they have.  See, e.g., Optowave Co. Ltd. v. Nitikin, 2006 U.S. Dist. LEXIS 81345 at *30 (M.D. Fla. Nov. 7, 2006) (finding that notice from opposing counsel about relevant categories of information put party on notice about scope of preservation duty).  Likewise, it is wise to err on the side of over-preservation of evidence of one's own data, especially where the potential damages or sanctions for failure to preserve are significant.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

When Does The Duty To Preserve Evidence Arise?

When does the duty to preserve relevant material arise?  Generally, it arises when litigation or an
investigation is “reasonably anticipated.”  Without question, the duty to preserve begins when a
Summons and Complaint is received.  However, there may be times when a pre-litigation dispute
is reasonably anticipated to lead to litigation, in which case a litigation hold notice should be
issued.   In Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist.
LEXIS 40136 at *23 (D. Colo. May 12, 2009) the court found that the obligation to preserve
evidence may arise even earlier than the actual filing of a lawsuit if a party has notice that future
litigation is likely.  Of course, for the plaintiff, the duty to preserve evidence normally arises well
before the filing of the lawsuit.  While there is no bright line regarding how early a plaintiff’s
duty to preserve arises in the process of contemplating and preparing to bring a lawsuit,
plaintiffs’ counsel should err on the side of caution and advise a client that there is a duty to
preserve as soon as the engagement begins to evaluate potential claims.

Consider the following questions to determine if the duty to preserve has been triggered.

• Do the known facts suggest that litigation is likely?  Answering this question can be tricky, and requires a thorough examination of all known facts.
• Has a consumer or customer complaint been received that clearly and credibly threatens suit?  A letter from a customer requesting a refund or suggesting that they will sue without describing the alleged wrongdoing, injury, or damages, probably does not warrant a hold.  If the letter is from the customer’s attorney, making a credible demand and threatening suit, then the duty to preserve is triggered.  In Asher,  plaintiff’s counsel sent two separate letters to defendant. The first letter expressed plaintiff’s desire to settle a warranty claim and did not threaten litigation.  The subsequent letter sent by plaintiff’s counsel made a claim for damages and set a 5-day deadline for payment.  The court found that the duty to preserve was triggered upon receipt of the second letter.
• Have there been repeated, specific complaints about a particular issue? In Computer Assoc. Int’l v. American Fundware, Inc., 133 F.R.D. 166, 168-69 (D. Colo. 1990), the court found that during pre-litigation meetings, one software company was explicit in its communication to the other software company that it believed the other company was copying its source code, thereby triggering the duty to preserve evidence related to the source code.
• Does legal counsel anticipate a lawsuit or investigation? There are times when counsel becomes aware, either through the media, employees, or other sources, that litigation or an investigation is possible.
• Do company representatives know of the possibility of a lawsuit?
• Has Plaintiff decided to file suit?
• Has a Summons and Complaint been received?  This is one of the few bright line points where a duty to preserve always exists no later than the receipt of a Summons and Complaint.

All of these factors should be considered when evaluating when the duty to preserve arises.  Once it has been established that preservation of relevant evidence is required, the next step in the process is to determine the scope of preservation. This topic is a hot potato, and one that directly impacts the cost of litigation and the risk of future discovery sanctions for failure to preserve. I’ll address this issue in future posts, focusing on electronically stored information, as well as discovery of social media.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Rule 26(f) Conference Checklist

F.R.C.P. 26(f) requires that all parties confer “as soon as practicable—and in any event at least 21 days before a scheduling conference is set” to discuss “the nature and basis of their claims and defenses,” “the possibilities for promptly settling or resolving the case,” “arrange for the disclosures required by Rule 26(a)(1),” “discuss any issues about preserving discoverable information,” and “develop a proposed discovery plan.”  The discovery plan prepared by the parties should address “changes . . . in the timing, form, or requirements for disclosures under Rule 26(a),” “the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues,” “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced,” “any issues about claims of privilege or of protection [of] trial-preparation materials,” and “what changes should be made in the limitations on discovery imposed under these rules . . . .”

C.R.C.P. 16(b)(3) provides a similar requirement under Colorado law, requiring the parties to “no later than 15 days after the case is at issue . . . confer with each other about the nature and basis of the claims and defenses; the matters to be disclosed pursuant to C.R.C.P. 26(a)(1); and whether a Modified Case Management Order is necessary.”  While the specific requirements of C.R.C.P. 16(b)(3) are less detailed than F.R.C.P. 26(f), it is a best practice to follow the federal guidelines in state court conferences.

This initial conference is also an excellent opportunity to outline additional time and cost-saving measures.  One best practice is to provide to opposing counsel via letter a proposal for the following items.  This serves both to streamline and guide the 26(f) conference and to create a record of the proposals and good faith efforts made to streamline discovery.

Consider discussing some or all of the following at a Rule 26(f) conference:

Nature and Basis of Claims and Defenses:

- Plaintiff should inquire into anticipated defenses if Answer not yet filed, or for explanation of affirmative defenses where presented

- Defendant should inquire into factual basis for claims where not specifically articulated in Complaint

Settlement:

- Make initial/follow-on settlement offers if appropriate

- Discuss timing of future settlement efforts and mediation in light of discovery schedule

Initial Disclosures, ESI, Preservation of Information, Production Format:

- Discuss scope of appropriate initial disclosures where appropriate
- Discuss types of ESI that may be relevant, including local storage, networked storage, individual employee computers, smart phones (repositories of text messages and photos), corporate blogs and wikis, individual and corporate social media information on Facebook, blogs, Twitter, corporate voicemail, personal and corporate instant messaging, calendaring systems

- Where Electronically Stored Information exists (nearly every case), discuss the extent and structure of each parties ESI and consider agreeing that the parties will produce an outline of their ESI storage and structure to streamline requests and production.  Overview of ESI systems should include discussion of:
- Date ranges for review

- Name and role of ESI custodians

- ESI system types and structure (including individual workstations, shared drives, etc.

- File types that will be searched

- Search terms that will be used

- Counsel should familiarize themselves with their own client’s ESI structure and information before the Rule 26(f) conference

- Consider agreeing that, following receipt of outline of ESI custodians and structure, each party may nominate 5 ESI custodians in opposing party for preservation and review

- Discuss format for production of documents (e.g. PDF files with OCR layer provided by email to opposing counsel where size permits, otherwise by US Mail or courier)

- Discuss importance that documents be produced in the order in which they are kept in the ordinary course of business

- Discuss necessity and form of protective order for confidential documents

- Agree that, where native format of ESI differs from production format, parties will additionally produce document in native-format where specifically requested (i.e. Excel spreadsheets (.xls), QuickBooks files (.qbb), etc.)

- Address scope of potentially relevant information including ESI, and appropriate preservation measures

- Discuss rolling production time-frames in light of discovery schedule

Privilege Issues:

- Address any case-specific privilege issues

- Agree on timing of disclosure of privilege log and format for log
- Agree that documents created after a certain date (often case filing date) need not be included on privilege log

- Agree to claw-back provision that inadvertent production will not waive privilege

- Consider agreeing that each side may designate up to 20 documents from privilege log for in-camera inspection

Proposed Discovery Plan (for inclusion in proposed scheduling order):

- Discuss potential for informal discovery

- Number and names of deponents and time limitations, location

- Number of written discovery requests

- Discuss number and deadline for disclosure of expert witness reports

- Discuss whether limitation/elimination of expert depositions is appropriate

Additional Cost/Time-Saving Measures

- Agree that all discovery disputes will be discussed by phone call between counsel, not via letter

- Agree that all depositions will be scheduled by agreement (no unilateral notices)

- Agree that all deposition exhibits will be numbered sequentially

- Agree that, if FRCP don’t apply, neither side will be entitled to communications with experts not discoverable under FRCP 26(a)(2)

The agreements reached during the Rule 26(f) conference, as well as the competing views of the parties where no agreement was reached, should be documented in a joint report to the Court that must be filed within 14 days after the conference.

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.

Written Discovery Requests: Preliminary Statements and Objections

This post is part of my litigation checklist.

Responding to discovery requests can be time consuming but requires considerable care.  If you’ve been diligent in developing and strategically executing your discovery plan, responding to discovery requests is much easier.  As you make your way through the process, it’s essential to keep in mind some potential pitfalls:

-        If written response to discovery is not made timely, any objections you may have, including claims of privilege, may be waived.

-        If a written discovery request is proper, do not withhold evidence or facts that are favorable to your case.  Failing to produce such information may preclude you from using it at trial. When responding, be sure to produce all information that you have or that can be reasonably obtained.  

-        Don't delegate the drafting of discovery requests to  your client.  They likely do not fully understand the language that is customarily used to respond to discovery requests, or the vital importance of a careful responses and objections, and it is incumbent upon you to make sure this is properly handled in your discovery responses.

Responses to written discovery requests normally start with a preliminary statement and objections.  While much of this is boilerplate, and I am not a fan of preliminary statements that run several pages, it can be helpful to set up preliminary objections to provide a fall-back in the event you fail to make a specific objection to a discovery request that becomes and unanticipated disputed issue at a later date.  Additionally, well-crafted preliminary statements and objections can facilitate shorter and more pointed responses to specific discovery requests, actually saving time and space in the long run.

A template saves time and is customizable to the needs of the case.  The following is some suggested wording: 

GENERAL OBJECTIONS

1.              Plaintiff objects to Defendant’s Interrogatories, Requests for Production, and Requests for Admission to the extent that they incorporate or set forth definitions,  instructions, or requirements that attempt to impose upon Plaintiff burdens and obligations beyond those contemplated by the Colorado Rules of Civil Procedure.  Plaintiff will respond as required by the applicable provisions of the Colorado Rules of Civil Procedure and any purported instructions, definitions, requirements, or requests to the contrary will be disregarded.

2.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek information protected by attorney-client privilege or work product doctrine.

3.              To the extent any Interrogatory can be interpreted as requiring Plaintiff to identify or produce any document or set forth any information which is in the possession, custody, or control of Defendant or otherwise, that has been available to or is otherwise not in the possession of Plaintiff, or is equally accessible to Defendant,  Plaintiff objects hereto.

4.              Plaintiff objects to Defendant’s Interrogatories to the extent that they seek documents or information not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence.

5.              Plaintiff has not completed discovery, investigation, or preparation for trial in this matter. Accordingly, documents and information are provided without prejudice to Plaintiff’s rights to make further objections and present additional information and documents which are hereafter discovered or which further discovery and investigation may indicate are relevant to this action and called for by Defendant.

6.              These general objections apply to each and every one of the following responses and objections, and failure to repeat an objection in response to a specific Interrogatory, Request for Production, or Request for Admission shall not be deemed a waiver of these general objections.

These General Objections are precisely that – general.  In particular, the blanket objection to attorney-client privilege and attorney work product should only be seen as a fallback position, and the contingent "to the extent" phrasing likely will not suffice--it's best to specifically object to each instance where there are responsive materials protected by privilege or work product.  It is generally still necessary to object to a specific interrogatory, RFA, or RFP.  The objection must be applicable to the case, stated clearly and concisely, and supported by legal authority.  And while a Pulitzer Prize has never been awarded for an objection to a discovery request, in the event a discovery dispute arises a judge is more likely to take note of clearly-stated, fully-supported objections, and will appreciate the careful analysis and attention that you have given to your response.

Responding effectively to requests for discovery can require many hours researching cases that support your position that a discovery request is overbroad, burdensome, vague, oppressive, subject to attorney-client (or other) privilege, or not likely to lead to admissible evidence. To this end, in the coming weeks I will be writing a series of articles that will address some of the common objections that are made to discovery requests. Hopefully this information will help make the task less cumbersome and daunting, and will assist you in tailoring your objections to some of the most common discovery issues.   

Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.