TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 16, 2018
RE: Written discovery in civil actions
Attorney David Hogue has requested that the committee discuss amending the discovery rules to address problems in written discovery in civil cases, particularly interrogatory practice. A copy of his email is attached.
Mr. Hogue said the rules for written discovery are not being followed or enforced. He said it appears to be standard practice to object to every interrogatory rather that provide the requested information. He said that unduly burdensome and overbroad is an objection that seems to be made to any discovery request. He said the work product objection is interpreted too broadly and used too frequently. He suggested that all objections to discovery be eliminated except for attorney client privilege.
Mr. Hogue said the federal system of limiting interrogatories and require certain information to be automatically disclosed is superior. He said an even better approach would be to follow the system in criminal discovery where everything needs to be disclosed. He said this would allow both sides to evaluate all the evidence and eliminate surprise.
Mr. Hogue said courts do not have adequate tools to resolve discovery disputes and their only recourse is to instruct the parties to work it out. He said requiring disclosures would resolve many issues. He said that mandatory attorney fees should be available as a sanction for failure to cooperate in discovery.
The committee recently discussed, and ultimately rejected, the idea of requiring federal style disclosures to our discovery rules. As the attached article explains, however, problems in interrogatory practice persist even under the federal discovery rules. The article examines two possible solutions: the use of standard interrogatories to which no objections would be allowed and the elimination of interrogatories altogether with initial disclosures and the use of other written discovery, such as requests for admissions, as a substitute.
No rule amendments are proposed at this time.