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Keep It Simple: How to Properly Issue and Respond to Discovery

By: Matthew C. Perushek

Discovery is one of the more frustrating aspects of practicing law, time consuming and too often tedious. It can be downright maddening when requests are poorly drafted or responses are littered with frivolous, nonsensical objections.


With that said, discovery is unquestionably important. You must learn how to get what you need. Since you cannot force others to conduct discovery the “right way,” you sometimes need help from the court. Judges notoriously dislike discovery motions, so you must craft discovery requests, objections, and responses cognizant of how the court may view them later.

I avoid overcomplicating discovery. I keep requests simple and straightforward and make sure objections and responses are well grounded and in good faith. If I end up in court, I want to have arguments that are easy to understand and accept. I have found the following tips helpful:

(1)  Ditch the lengthy instructions and definitions.

The Rules contain all the instructions for discovery. To the extent an instruction is inconsistent with the Rules, no Court is going to say that the instruction controls. Likewise, words should be given their plain meaning. The lengthy definitions of “document” are confusing (does anyone not know what a document is?). If you want a particular type of document (e.g., emails), just ask for it.

(2)  Requests should be direct and brief.

Paragraph-long requests invite objections and evasive responses. I try to keep each request one or two lines. “Describe all statements Plaintiff made about the incident or his injuries or damages.”  “Produce all photographs, videos, and documents depicting the incident or the vehicles involved in the incident.”  It’s hard for anyone to argue over the meaning of these requests, so the other side cannot avoid giving you exactly what you want.

(3)  Requests should be specific.


Rule 4:9(b)(i) says that requests for documents must “describe each item or category with reasonable particularity.” Although not explicitly in the other discovery rules, you should act as though this provision is. When you issue a request, it is your job to tell the other side exactly what you want; they should not have to guess. You cannot say, “Identify all documents relevant to this case.” 

(4)  Do not assert general objections.

Rules 4:8(d) and 4:9(b)(ii) state that each request should be responded or objected to, which means you should not assert general objections. They also imply you are hiding the ball, which judges do not like.

(5)  Do not serve objections as placeholders.

I frequently receive objections on the twenty-first day after serving requests. I know the attorney has not properly consulted with his or her client, so the objections are asserted as a placeholder until substantive responses are served. All objections must be consistent with the Rules and not interposed for any improper purpose. Rule 4:1(g). How does the attorney know an objection is consistent with the Rules if he or she does not know what information, if any, the client has?  Doesn’t this placeholder function as an improper purpose? If you need more time to consult with your client, just ask the other side for it.

(6)  Do not object and respond (with limited exception).

If a request is objectionable, then object and stand on it. If not, then respond. Do not object and respond “without waiving the objection.” Does this mean you are withholding responsive information/documents?  If so, I would never know. Frequently, I think this is used when attorneys are not confident that a response is complete, so they assert the objection to preserve it in the event something new is learned in the future. I have heard more than one judge state that when a party objects and then responds, that party waives her objections by responding. The only exception is privilege, which sometimes requires objecting to the privilege but then responding with non-privileged materials.

(7)  Be honest and straightforward when responding.

If you use a convoluted approach, you can find a reason to object to every request. Do not look for reasons to object. And you should not find yourself objecting to nearly every request. Remember, courts tend to favor disclosure. Give each request a good-faith read, and unless you have a good reason to object, respond.

Matthew Perushek is an associate attorney at Sicels, Frei & Mims, L.L.P., where he practices personal-injury law. He is current president of the Fairfax Bar Association’s Young Lawyer’s Section, and he is the Fifth District Representative of the Virginia State Bar’s Young Lawyers Conference. He can be reached at