Discovery Responses: What They Are and How to Respond

  • Will Pfeifer
  • August 13, 2021

Before going to trial, the plaintiff and defense teams have the option to request information from one another through a process called discovery. This is an especially important part of the legal process. Ultimately, it can make or break the case. 

This post offers a quick primer on how discovery requests work and the appropriate way to respond to them. Keep reading to learn more about discovery responses and the impact they have on legal teams. 

What Is Discovery?

In short, legal discovery is an official process for requesting and sharing evidence. During this period, the two teams exchange relevant information with each other. 

The point of discovery is to acquire information to build a case or defend your position. The more information that you can access, the more insight you can gain into the situation at hand.  

The discovery period takes place following a meet-and-confer session. At this point, both sides try to resolve the case before going to trial. If the two sides can’t reach an agreement, the case goes to court. Subsequently, the two parties exchange evidence and agree to terms for the trial. 

Discovery vs. eDiscovery: What’s the Difference? 

Discovery is an umbrella term with a few different meanings.  

First, the term “discovery” may refer to tangible objects. For example, this might include hard copies of photos, paper documents, gifted objects, and receipts. 

Second, the term “discovery” can refer to physical inspections. For instance, an attorney may request access to private property. The attorney may also ask the other party to submit to a physical examination. 

Additionally, “discovery” can refer to electronically stored information (ESI). In this case, the term used is “eDiscovery.” Like the name suggests, this applies to digital photos, writings, graphs, charts, audio files, images, and other data or data compilations.  

Issuing a Discovery Request 

Rule 34 of the Federal Rules of Civil Procedure (FRCP) says that you can serve a request for discovery under the scope of Rule 26(b)

One point to remember, though, is that you can’t casually ask for information during discovery or eDiscovery. For example, you can’t call another attorney and ask them to send a file or ask the other party in an elevator. What’s more, you can’t approach another attorney’s client directly for information.  

To request evidence, you need to submit a formal letter detailing the information you’re asking for. This letter should contain three parts: an introduction, an outline with legal definitions, and clear, numbered instructions for responding to the request. 

What Is a Discovery Response?

Above all, a discovery request is merely an invitation to share information. It isn’t a court order. A plaintiff or defense team does not have the legal authority to compel anyone to issue information. 

With this in mind, it’s important to realize that you have some options when responding to a discovery request. A discovery response is essentially a choice that you make after receiving a request for information.  

The question then becomes, Should you comply or not? There are several options for what you can do: 

1. Comply With the Request 

After receiving a request, you may find that it’s fair and in line with the scope of the case.  

If the request meets your approval, you can choose to comply and produce the information that the other party is asking for. 

2. Object to the Request 

It’s also possible that you will object to a request. For example, someone may request information that’s irrelevant to the case or overly invasive. 

If you don’t agree with the discovery request, you certainly can object. The court may not uphold the request, but it’s within your right to try.  

3. Ignore the Request 

Another option is to simply ignore part of a request or an entire request. Of course, this is usually not an advisable course of action. Undeniably, if you ignore a request for information, the other party will either ask again or pursue a court order that forces you to provide evidence.  

This request, a motion to compel, requires submitting a formal request to a judge and asking them to intervene and request information. If the court upholds the motion to compel, then you have to comply or else you risk losing the case.  

How to Respond to a Discovery Request 

If you receive a discovery request for tangible things, ESI, or entering onto private property, you need to respond in writing. You can’t respond over the phone or in person.  

You’ll have to go through the request line by line. And you’ll also have to indicate that you either accept or object to the request for each category or item. 

If you object to the request, then you need to explain the reason why you are doing so. Furthermore, you must also explain whether you’re withholding any materials based on that objection. To this end, you can’t object without a valid reason. 

When objecting to a request for a certain form of ESI, then you should state the form that you intend to use instead.  

Producing Documents or ESI

Rule 34(b)(2)(E) issues specific guidance for producing tangible documents or ESI.  

You need to produce documents as they’re kept in the usual course of business or label them to correspond to the specific categories in the request. What’s more, if a request doesn’t specify a form for producing ESI, you can produce it in its usual form.  

You also don’t need to produce the same ESI in more than one form. To illustrate, you shouldn’t have to produce the same data in two different structures (e.g., a paper document and that same information as a digital file). 

How Many Days Do You Have to Answer Discovery?

Legal teams sometimes get into trouble because they take too long to respond to a discovery request. This may happen out of negligence. In some cases, it can be intentional. 

FRCP Rule 34 explicitly says that you have 30 days to respond within writing after the serving date. If the request falls under Rule 26(d)(2), then you have 30 days after the Rule 26(f) conference.  

In either case, the court may modify the window of time under Rule 29 or by court order. If you don’t respond in the appropriate window of time, the party might simply issue another response. They may also go to court and issue a motion to compel. 

For this reason, it’s critical to have a plan in place before going into the discovery process. Your team should anticipate different types of discovery requests and be in a position to respond right away to avoid complications.  

In truth, the most successful legal teams don’t leave anything to chance. They’re ready to field incoming requests before they occur. 

VenioOne: A Must-Have Tool for eDiscovery 

VenioOne is a purpose-built eDiscovery platform. You can use VenioOne to streamline the entire eDiscovery process end to end.  

The platform centralizes eDiscovery data for easy, secure, and accessible storage. It features a user-friendly interface, lightning-fast data processing, and secure tools for distributing information to stakeholders. By using VenioOne, your team can respond to requests faster, more efficiently, and more securely. It’s far more efficient than managing eDiscovery manually. 

When you’re ready to see the easiest way to approach eDiscovery, request a free demo

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.