Countering Discovery Abuse

Countering Discovery Abuse

Written by Ginger Maxted, Shelton Voorhees Law Group

Presented by Ginger Maxted, OKC

I have three children, each are about 1 year apart in age. My Oldest and his younger brother like to play together. The younger of the boys usually initiates their games and sets the rules. He gains a quick advantage by doing so and prevails initially at the game. However, the older boy has 1 year of experience on the younger one and thus eventually begins to dominate the game. The younger naturally compensates for his loss by changing the rules of the game and again takes the advantage. The older soon adapts to the rule change and prevails. The cycle continues until both become extremely frustrated and just short of blows, they call MOM! Enter myself. I am busy, I work in and out of the home, I have clients, cases, staff, colleagues, I have another child, parents and grandparents to care for, siblings, church duties, board duties, pets, laundry.... I usually arbitrate this situation with a "I DON'T CARE HOW IT STARTED quit fighting". And sum up with "if you cant play together with out fighting then don't play together". On a particularly calm day, when I have no other duties to attend to, I may inquire as to the nature of the fight. I might learn that the rules and advantages have been abused and that the game was not fair. Then I might sit and arbitrate the game as it is played to ensure that the rules work for each player and that no unfair advantage is gained by either. But this would be on a very slow day. One can appreciate through this story the nature of discovery abuse and why it is a difficult problem to solve.

Please note: "forms" below appear in this font.

A. Right of Access to Relevant Information

The construct of our system requires access to relevant information in a law suit. The rules of civil procedure have been enacted to ensure access by all sides to that information. No fair trial may be held if the relevant information is not available to both parties. The discovery process entitles each side to the relevant information of which the other party has knowledge.

The Mancia Court pointed out among other rules Fed.R.Civ.P. 26(g), enacted in 1983. The rule requires that every discovery disclosure, request, response or objection must be signed by at least one attorney of record, or the client, if unrepresented. Fed.R.Civ.P. 26(g)(1). The signature "certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry".

The Oklahoma Rules of Professional Conduct comment that; the procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

Documents and other items of evidence are essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense.

The Oklahoma Rules of Professional Conduct Rule 3.4. Fairness to Opposing Party and Counsel

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

B. Common Tactics for Stonewalling Disclosure

Three common tactics for stonewalling disclosure are:

•• Refusing to answer written discovery.

•• Refusing to follow procedural rules or scheduling orders.

•• Coaching a witness during deposition.

These tactics may be employed out of intention or ignorance. Deposition coaching or witness harassment are a particular obstacles, as you must respond immediately and appropriately in order to solve the problem, often in front of your client and opposing counsel's client. Regardless of the wishes of client this is not the time to threaten or bluster. It is important to be mindful that what is discovered via "discovery" is evidence, and what is testified to in deposition is testimony. However you have no opportunity to object to the judge who can enforce a rule on the game, during deposition, except that you may phone a judge to request a ruling. Oklahoma Rules of Evidence 103 requires a timely objection, stating the specific ground of objection, if the specific ground was not apparent from the context. However this is not the case in deposition where you are likely limited by local rules to 3 objections. You may 1) object to form, 2) object as leading, or 3) object as non-responsive. The only good deposition for your client is one that is over, objections and arguing only delay the end. Be sure the court reporter is aware of your objection and has it on the record and allow the deposition to continue, you cannot lead your witness with an objection.

OFFICIAL COURT RULES OF THE SEVENTH JUDICIAL ADMINISTRATIVE DISTRICT

COMPRISED OF OKLAHOMA AND CANADIAN COUNTIES RULE NO. 18

I. DEPOSITION CONDUCT:

A. Objections to questions during an oral deposition are limited to "Objection, leading" and "Objection, form." Objections to testimony during the deposition are limited to "Objection, non-responsive." These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the deposition to be later raised in court. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing court costs or other sanctions.

B. An instruction to a deponent not to answer a question shall be limited to the grounds set forth in Section 3230 E.1. of the Discovery Code. The attorney instructing the witness not to answer shall give a concise, non-argumentative, non-suggestive explanation of the grounds for the instruction, if requested by the party conducting the examination.

C. Counsel and a witness shall not engage in private, off‑the‑record conferences during the actual taking of the deposition, except for the purpose of deciding whether to assert a privilege or to move for a protective order. Private conferences may be held, however, during agreed recesses and adjournments.

II. OBJECTIONS TO DEPOSITION TESTIMONY:

A. Objections to any portion of deposition testimony, either by videotape or otherwise, which is sought to be introduced at trial and which cannot be resolved by counsel, shall be presented to the trial judge for a ruling at least twenty (20) days prior to trial.

B. All objections not made, as set out above shall be deemed to be waived and the deposition shall be read or viewed in its entirety at trial.

C. The trial judge, in the exercise of sound discretion, may waive these requirements.

C. "Dump Truck" Discovery

Fed R. Civ P. 34 requires the production of documents in lawsuit, and that a party be given 30 days from the request for document in which to produce them. (Note that objections not given within thirty days are untimely and considered waived) Mackey v. IBP, Inc. 167 F.R.D. 186, 206 (D. Kan. 1996). Rule 34 also requires that the documents be produced as they are kept in the usual course of business OR organized and labeled in the category for which they are requested.

When you are in litigation with a company or corporation or where voluminous records are involved, document request may be met with the production of thousands of documents, many of which may have little or no relevance to the lawsuit. Mancia suggest phased discovery requests that discreetly ask for relevant documents. This is a reasonable approach.

Another avenue for getting the information and only the information you seek is use of the 30 b 5 and 30 b 6 demand for production of documents. Fed R. Civ P. 30 b 5 provides that a party can be compelled to bring documents or tangible things to a deposition for examination copying and inquiry in conjunction with Rule 34 request.

(Case caption)

TO: ABOVE‑NAMED DEFENDANTS AND THEIR ATTORNEY:

PLEASE TAKE NOTICE, that pursuant to Fed.R.Civ.P. Rule 30(b)(6), the stenographic video deposition of [DEFENDANT] will be taken before a qualified Notary Public at [location] on [DATE], and thereafter by adjournment until the same shall be completed.

Pursuant to Fed.R.Civ.P.30(b)(6), [DEFENDANT] is required to designate and fully prepare one or more officers, directors, managing agents or other persons with the most knowledge concerning the following designated matters, who consent to testify on its behalf, and whom Defendant will fully prepare to testify regarding the following designated matters and as to such information that is known or reasonably available to the organization:

1. The existence of the documents requested below pursuant to Fed. R. Civ. P. 34;

2. The electronic creation, duplication and/or storage of the documents requested below pursuant to Fed. R. Civ. P. 34;

3. Any and all document retention/destruction policies that would relate to any of the documents requested below pursuant to Fed. R. Civ. P. 34;

4. The location of the documents requested below pursuant to Fed. R. Civ. P. 34;

5. The organization, indexing and/or filing of the documents requested below pursuant to Fed. R. Civ. P. 34;

6. The method of search for the documents requested below pursuant to Fed. R. Civ. P. 34;

7. The completeness of the documents produced pursuant to Fed. R. Civ. P. 34; and

8. The authenticity of the documents produced pursuant to Fed. R. Civ. P. 34.

Pursuant to Rules 30(b)(2) and 34 of the Federal Rules of Civil Procedure, Plaintiff requests that [DEFENDANT] produce, at the time of the deposition, the following documents and tangible things, as well as permit Plaintiff's counsel to inspect and copy each of the following documents and tangible items in the possession, custody or control of [DEFENDANT], its attorneys or other representatives or agents:

SCHEDULE OF DOCUMENTS:

1.

2.

3.

PLEASE TAKE NOTICE that this Request is deemed continuing to and through trial of this case. Should you in the future discover any items relating to any of the above matters of this Request, you are required to notify Plaintiff's counsel of said information by way of Supplemental Answers to this Request, or an objection will be made at trial for the use of information not revealed.

D. Evidence Spoliation (Document Destruction and Modification)

In order to preserve evidence immediately notify any potential litigate of their duty to preserve evidence.

Dear _____________:

Please be advised that I represent [client] in their claim for personal injuries sustained [date] [few details] within your store.

We are hereby putting you on notice of potential pending litigation, and therefore requesting that you preserve any evidence, such as video tapes, photographs, incident reports, or other documents regarding the incident. We would also request that you provide our office with copies of any and all such documents or evidence.

Should you have any questions, please contact me at any time.

Sincerely,

Ginger K. Maxted

Notifying a registered agent may also be useful. Obviously if you are aware of counsel for a potential litigate put them on immediate notice also, you may wish to include language regarding the duty set out in 3.4.

Opposing counsel is under the duty imposed by Oklahoma Rules of Professional Conduct Rule 3.4:

A lawyer shall not:

(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

Obtaining evidence of spoliation can be difficult task. In some cases your client may be aware of missing records, however, frequently you will become aware of such evidence during deposition testimony. This requires a well researched, case strategy and discovery strategy. I recommend discussing your case with friends and colleagues to uncover potential sources and pieces of information that may not present intuitively in your case. Once identified you can come up with a strategy to get the testimony you will need to prove spoliation. Spoliation Motions can be brought to the court to force the negative inference of the evidence not produced.

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INTRODUCTION

Plaintiff brings this spoliation motion because Defendants have destroyed medical records which they are required by law to preserve and which detail _______________.

FACTS

Defendants objected to Plaintiff's Request ____________ as overly broad, vague and ambiguous. Only through deposition testimony has Plaintiff learned that Defendants destroyed these clinical records.

ARGUMENT

Spoliation is the destruction or significant alteration of potential evidence. A threshold question in a spoliation claim is whether the alleged spoliator was under any obligation to preserve evidence. The obligation to preserve evidence can arise from two sources. The first is when the party has a statutory, regulatory or ethical duty to preserve records. The second is when the party has a common law duty to preserve evidence for future litigation.

______________HAD A REGULATORY DUTY TO PRESERVE __________________

.....

DEFENDANTS HAD A COMMON LAW DUTY TO PRESERVE___________________

.....

PLAINTIFF HAS BEEN PREJUDICED BY DEFENDANTS'

DESTRUCTION OF THESE RECORDS

.....

All of these assertions are seriously disputed fact questions.

CONCLUSION

Oklahoma courts have broad authority to remedy the spoliation of evidence when one party gains an evidentiary advantage due to its failure to preserve evidence after having the opportunity to examine it. Public policy recognizes that the spoliator should bear the consequences for the loss of the evidence rather than the non spoliator. Defendants had exclusive control and possession of ________________. These records contained critical information central to the facts of this case. By destroying this evidence, Defendants prejudiced ______________. The law permits an adverse inference. Spoliation erodes the judicial process. The destruction of potentially relevant evidence clearly inhibits courts' ability to hear evidence and accurately determine the facts. The spoliator creates an unfair trial, in dereliction of the rules of civil procedure, if it can unilaterally determine which evidence will be placed before the jury. Because the critical item of evidence no longer exists to speak for the plaintiff's claims or to the defendant's defense, the trial court is not only empowered, but it is obligated to determine the consequences of the evidentiary loss. Pursuant to these established legal principles, Plaintiff respectfully requests that the Court:

1. Instruct the jury that ____________________ were under the exclusive possession and control of Defendants, who failed to produce such documents because they were destroyed; and

2. Instruct the jury that they are permitted to infer that the evidence, if produced, would have been unfavorable to the Defendants.

3. Strike Defendants' Affirmative Defense that____________________________.

E. Confidentiality Orders, Privileges and Privilege Logs

The onus is on the party who claims confidentiality of records to appeal to the court that such records be with held and to produce a privilege log. In practice this procedure is rarely followed. Commonly evidence is not produced and a claim of confidentiality is made without any involvement from the bench. Indeed the attorney seeking discovery often must file a motion to compel to get such documents. In order to be prepared for the motion document each violation of discovery with a letter to opposing counsel. See 12 O.S. § 3237 (2), for specific instructions as to confidentiality orders and privilege logs. A privilege log must include as to each document (unless otherwise ordered by the court): the author, recipient, its origination date, length, nature of the document or its purpose, and the basis for the objection.

F. Witness Harassment in Depositions

Above in section A and B find rules for attorney conduct and deposition conduct. These rules constrain objection during deposition. If opposing counsel is harassing your witness or inquiring into irrelevant areas, ask for a break and discuss this with counsel, preferably outside of the presence of your clients. If you cannot resolve the matter go on the record and state your objection and continue the deposition, until a later time or date, that you may have an opportunity to get a ruling from the judge on your matter. On occasion you may be able to get such a ruling over the phone at that time. However, often, you will need to file for a protective order from the court to protect your client from unreasonable or irrelevant questions and harassment.

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MOTION FOR PROTECTIVE ORDER

AND REQUEST FOR DISCOVERY CONFERENCE

COMES NOW________________, and respectfully moves this Court for a Protective Order regarding the financial information and records being sought through the discovery process.

In support hereof, ______________ would show to the Court as follows:

1. On ____________date, __________________, through their attorney ____________________, propounded First Discovery Requests to__________________.

2. On ___________________________, after both telephone and correspondence consultation between counsel regarding said discovery requests, revised Interrogatories and Requests for Production were provided by counsel for ______________client ; however, the revisions did not address the objections stated regarding requests for personal financial information ___________ client. The revised requests are attached hereto as Exhibit A and incorporated herein; the withdrawn requests are signified by striking out the question or request.

3. Much of the information requested in the Interrogatories and the Requests for Production of Documents is for the personal and confidential financial records of _____________. In part, the objection to production of this information is based on the fact that ____________________.

4. The purported justification for seeking the personal and confidential financial records of ____________________________.

•5. On [date] a deposition was taken of [client], wherein inquiry was made regarding the personal and confidential financial records.

•6. An objection was raised and counsel discussed the matter at that time. No resolution could be reached so the deposition was continued pending a ruling in this matter by the court ( if you have the deposition record include it as an exhibit).

7. Due to the highly confidential and privileged financial information being sought through discovery, _________________would also request this Court to limit the scope of the financial information sought, or, alternatively, a Protective Order be entered that the documents be provided only to the ________________review, or to the Court for an in‑camera review to determine the relevance of the requested information and the necessity of providing same to any of the parties herein, or for such other limitations as may protect the confidentiality of the information provided from public release.

6 ____________________ also requests a discovery conference be held to determine the appropriate scope of discovery and provision of financial information in this matter.

7 This Motion is based on Tit. 12 O.S. §3226 (C).

WHEREFORE, _______________, would request that the Court enter a Protective Order as requested herein; that a discovery conference be held to determine the appropriate scope of discovery herein; and for such other and further relief as the Court may consider to be just and proper.

G. Subpoenas for Production of Evidence, aka Motion to Compel

MOTION TO COMPEL

COMES NOW the Respondent,_____________, and moves the Court for an order compelling the Petitioner to answer discovery requests propounded upon him. In support of this Motion, Respondent would show the Court:

1. On or about ________date, Respondent's Interrogatories and Requests for Production of Documents was served upon Petitioner. On ____________, Respondent received Petitioner's discovery responses. However, Petitioner's answers were incomplete; therefore, on ___________, Respondent requested Petitioner supplement his responses. (See Exhibit "A")

4. On ____________date, Respondent received an undated letter from Petitioner asserting an attorney work product privilege to many discovery requests and failing to produce responsive documents. (See Exhibit "B")

5. On _____________, Respondent requested that Petitioner supplement the discovery responses; objected to the assertion of an attorney‑work product privilege; requested a privilege log; and requested the production of documents. (See Exhibit "C") Petitioner has failed to respond.

6. Furthermore, no privilege log has been provided; therefore, Respondent requests an order stating these items, if they exist, are not privileged, or if they are, they cannot be used as evidence if not immediately provided to Respondent.

WHEREFORE, Respondent would request that this Court enter an Order:

A. Compelling Petitioner to produce____________________.

B. Compelling Petitioner to produce all photographs, videos, statements or other exhibits which he intends to use at the trial of this matter;

C. Compelling Petitioner to produce a privilege log for any exhibit which is deemed privileged and to identify in said log who obtained such photographs, videos, statements, etc.

D. Enter an Order stating that all exhibits that Petitioner claims is privileged cannot be used as evidence at a later date.

NOTICE OF SUBPOENA DUCES TECUM

To: All Parties and Counsel of Record

TAKE NOTICE that Plaintiff has caused to be issued Subpoenas for Documents to ______________, copies of which are attached hereto. The subpoenas are being issued pursuant to 12 O.S. §2004.1. No testimony will be taken, and the persons to whom the subpoena is directed is being ordered only to produce documents or things for inspection and/or copying.

SUBPOENA DUCES TECUM

To: .

c/o attny

address

GREETINGS:

YOU ARE COMMANDED, pursuant to 12 O.S. §2004.1, to produce and permit inspection and copying of the following documents at 9:00 a.m. on __________, at the offices of Shelton Voorhees Law Group, 7701 S. Western Avenue, Suite 201, Oklahoma City, Oklahoma, 73139.

A complete copy of your entire file, including all invoices, reports, correspondence, notes, journals, facsimile transmissions, e‑mails, photographs (Note: please provide either laser color copies of photographs, or a CD containing photographs) or any other documentation in your possession regarding the property located at: ___________, Oklahoma, for the time period of ______________.

Please note that no personal appearance is requested or required.

A reasonable copy charge will be paid. The requested documents may be mailed to:

Ginger Maxted

Shelton Voorhees Law Group

7701 S. Western Avenue, Suite 201

Oklahoma City, OK 73139

Under the terms of §2004.1(B)(1), all parties to this case are being given notice that this Subpoena has been served. In the event you wish to make alternative arrangements for production of the documents requested, please contact the undersigned.

In order to allow objections to the production of documents and things to be filed, you should not produce them until the date specified in this subpoena, and if an objection is filed, until the Court rules on the objection.

Hereof fail not under penalty of law.

H. Building a Case for Sanctions

1. Rule Sources discussed here in include:

Federal Rules of Civil Procedure

Oklahoma Statutes, 12 O.S. 3232 ‑ Use of Depositions in Court Proceedings,

12 O.S. § 3227 Depositions Before Action or Pending Appeal

12 O.S. § 3237 Failure to Make or Cooperate in Discovery-Sanctions

Oklahoma Rules of Professional Conduct

Oklahoma Local Court Rules

2. How to Document Discovery Abuse

Documenting discovery abuse requires communication with opposing counsel via email or letter. You simply must document each conversation involving discovery and repeatedly request what you are entitled to and point out the rules that entitle you to discovery. Then you will have the evidence you will need to submit to the court when you must have the court's intervention to accomplish the goals of the system.

3. When to threaten Sanctions

I do not recommend that one threaten sanctions without the intent of filing them. Further, the court is want to grant sanctions. The court wants discover issues to be resolved by counsel.

4. When to ask for sanctions

Sanctions are warranted when evidence or information which one is entitled to is not produced despite an order of the court. The procedure for sanctions is laid out in 12 O.S. § 3237.

5. Phrasing Your Request for sanctions

Carefully word your request for sanctions and include for the court exhibits (correspondence) which document the sanctionable behavior and the lack of other remedy for such behavior. You are entitled to attorney fees and or reasonable expense for efforts to remedy the offending behavior.

I. Case Law Update(the effect of Mancia v. Mayflower Textile Services CO. on Traditional Discovery)

The Motions, Responses and Replies filed were extensive. In regards to Defendant Mayflower, the Plaintiffs raised issues relating to fourteen document requests and sought two supplemental interrogatory responses.

The documents requested included the following: (1) an attachment or attachments to the contract between Defendant Mayflower and Defendant Lunil; (2) an attachment or attachments to the contract between Defendant Mayflower and Defendant Argo; (3) documents that support the making and execution of the contract between Defendant Mayflower and Defendant Lunil; (4) documents that support the making and execution of the contract between Defendant Mayflower and Defendant Argo; (5) all documents indicating the days and hours worked by the Plaintiffs; (6) all records concerning wages earned by the Plaintiffs; (7) postings in Defendant Mayflower's place of business that inform workers of their wage and overtime rights; (8) all documents related to Defendant Mayflower's payment to Defendant Lunil for labor performed by employees at Defendant Mayflower's place of business; (9) all documents related to Defendant Mayflower's payment to Defendant Argo for labor performed by employees at Defendant Mayflower's place of business; (10) all documents regarding vehicles in which employees of Defendant*356 Mayflower were transported to and from work; (11) records showing all production workers who worked at Defendant Mayflower's place of business during the last two pay periods of 2007 and the first pay period of 2008; (12) payroll based tax documents and filings for the period relevant to the litigation; (13) all documents showing the relationship with individual workers and Defendant Mayflower; (14) documents regarding the ownership of Defendant Mayflower. Id. at 2‑12, Reqs. 1‑7, 15‑17, 21‑23, 26, 28. The requested supplemental interrogatory responses sought the identity of the person or persons answering the interrogatories, and a description of the business operations of Defendant Mayflower. Id. at 12‑14, Interrogs. 1, 3.

With Defendant Lunil, the Plaintiffs raised issues about ten document requests and sought two supplemental interrogatory responses. Pls.' Mot. Compel Def. Lunil 2‑10, Reqs. 1‑4, 12‑13, 17, 19, 22, 25, Interrogs. 11, 3. As for Defendant Mehta, the Plaintiffs had issues with only two document requests. Pls.' Mot. Compel Def. Mehta 2‑4, Reqs. 1‑2. In essence, Plaintiffs sought the same type of information from Defendants Lunil and Mehta as they did from Defendant Mayflower.

Finally, the Plaintiffs raised issues about twenty‑five document requests served on Defendant Argo, and further sought one supplemental interrogatory response. Pls.' Mot. Compel Def. Argo 2‑10, Reqs. 1‑25, Interrog. # 3. On September 29, 2008, Plaintiffs submitted correspondence notifying the Court of the resolution of four discovery disputes with Defendant Mayflower, three discovery disputes with Defendant Lunil and twenty disputes with Defendant Argo.FN2Having resolved most of their differences with Defendant Argo, the Plaintiffs still sought certain company records and also requested that Defendant Argo supplement its interrogatory response regarding the nature of its business, the locations and addresses where business operations had been conducted and the identities of its managerial and supervisory staff at each location. Id. at 1‑10, Reqs. 3‑4, 12, 19, 21, Interrog. # 3.

During my review of the objections originally served by the Defendants in their Responses to Plaintiffs' discovery requests, I noted an obvious violation of Fed.R.Civ.P. 33(b)(4) (which requires that the grounds for objecting to an interrogatory must be stated with specificity, or else they are waived) and the ruling in Jayne H. Lee, Inc. v. Flagstaff Indus., 173 F.R.D. 651, 655 (D.Md.1997) (also noting the obligation to particularize objections to interrogatories, on pain of waiver). Similarly, facially apparent violations of Fed.R.Civ.P. 34(b)(2), the rulings of the court in Jayne H. Lee, Inc., 173 F.R.D. at 656 (failure to respond to document production request in one of three appropriate ways) and Hall v. Sullivan, 231 F.R.D. 468, 473‑74 (D.Md.2005) (failure to object with particularity to document production request waives objection), were noted.

Further, the failure by the Defendants to particularize their objections to Plaintiffs' discovery requests suggested a probable violation of Fed.R.Civ.P. 26(g)(1) (failure to conduct a "reasonable inquiry" before objecting to an interrogatory or document request). As a result of these apparent discovery violations, I scheduled an in‑court hearing with counsel to address them.

This hearing took place on September 29, 2008. During the hearing I raised with counsel my concerns about the objections that had been filed by Defendants, as well as concern about the breadth of the Plaintiffs' discovery requests, and the possibility that they were excessively broad and costly, given what is at stake in this case. I advised counsel that the dispute appeared to be one that could be resolved, or substantially minimized, by greater communication and cooperation between counsel and the parties, and provided detailed suggestions for counsel to follow at a meet and confer session. I also explained that I would prepare a written opinion to more fully explain my concerns, suggestions and rulings, and instructed counsel how to respond if, after the conference, *357 there continue to be disputes requiring court resolution. This memorandum provides that explanation.

One of the most important, but apparently least understood or followed, of the discovery rules is Fed.R.Civ.P. 26(g), enacted in 1983. The rule requires that every discovery disclosure, request, response or objection must be signed by at least one attorney of record, or the client, if unrepresented. Fed.R.Civ.P. 26(g)(1). The signature "certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry," the disclosure is complete and correct, and that the discovery request, response or objection is: (a) consistent with the rules of procedure and warranted by existing law (or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law); (b) is not interposed for any improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); and (c) is neither unreasonable nor unduly burdensome or expensive, (considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action). Fed.R.Civ.P. 26(g)(1)(A), (B)(i)‑(iii) (emphasis added). If a lawyer or party makes a Rule 26(g) certification that violates the rule, without substantial justification, the court (on motion, or sua sponte) must impose an appropriate sanction, which may include an order to pay reasonable expenses and attorney's fees, caused by the violation. Fed.R.Civ.P. 26(g)(3).

[1] The Advisory Committee's Notes to Rule 26(g) significantly flesh it out:

Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection....

If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objection....

Although the certification duty requires the lawyer to pause and consider the reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.

The duty to make a "reasonable inquiry" is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11....

....

Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. Sanctions to deter discovery abuse would be more effective if they were diligently applied "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent."

It cannot seriously be disputed that compliance with the "spirit and purposes" of these discovery rules requires cooperation by counsel to identify and *358 fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot "behave responsively" during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Second, the rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated, absent "substantial justification," and those sanctions are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance. Fed.R.Civ.P. 26(g)(3). As the Advisory Committee's Notes state, "Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court's inherent authority." Fed.R.Civ.P. 26(g) advisory committee's notes to the 1983 amendments (internal citations omitted).

Third, the rule aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party. Despite the requirements of the rule, however, the reality appears to be that with respect to certain discovery, principally interrogatories and document production requests, lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial. The rationalization for this behavior is that the party propounding Rule 33 and 34 discovery does not know enough information to more narrowly tailor them, but this would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost‑to all parties‑is proportional to what is at stake in the litigation. The requirement of discovery being proportional to what is at issue is clearly stated at Rule 26(g)(1)(B)(iii) (lawyer's signature on a discovery request certifies that it is "neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action"), as well as Rule 26(b)(2)(C)(i)‑(iii) (court, on motion or on its own, must limit the scope of discovery if the discovery sought is unreasonably cumulative or duplicative, can be obtained from a more convenient source, could have been previously obtained by the party seeking the discovery or the burden or expense of the proposed discovery outweighs its likely benefit).

Similarly, Rule 26(g) also was enacted over twenty‑five years ago to bring an end to the equally abusive practice of objecting to discovery requests reflexively‑but not reflectively‑and without a factual basis. The rule and its commentary are starkly clear: an objection to requested discovery may not be made until after a lawyer has "paused and consider[ed]" whether, based on a "reasonable inquiry," there is a "factual basis [for the] ... objection." ...

It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver. Fed R. Civ. P. 33(b)(4) ("The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure."); see also Beverly v. Depuy Orthopaedics, Inc., No. 3:07‑CV‑137 AS, 2008 WL 45357, at *2 (N.D.Ind.2008) ("An underdeveloped argument, or argument not raised at all, is a waived argument."); DL v. District of Columbia, 251 F.R.D. 38, 43 (D.D.C.2008) ("When faced with general objections, the applicability of which to specific document requests is not explained further, '[t]his Court will not raise objections for [the responding party],' but instead will 'overrule[ ] [the responding party's] objection[s] on those grounds.' ") (quoting Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 242 F.R.D. 1, 12 (D.D.C.2007)); Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 538 (D.C.Kan.2006) ("The Court ... holds that a general objection which objects to a discovery request 'to the extent' that it asks the responding party to provide certain categories of documents or information is tantamount to asserting no objection at all. In other words, such a general objection does not preserve the asserted challenge to production."); Hall, 231 F.R.D. at 473‑74 (objections to Rule 34 document production requests must be stated with particularity or are waived); Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 660‑61 (D.Kan.2004) ("This Court has on several occasions disapproved of the practice of asserting a general objection 'to the extent' it may apply to particular requests for discovery. This Court has characterized these types of objections as worthless for anything beyond delay of the discovery. Such objections are considered mere hypothetical or contingent possibilities, where the objecting party makes no meaningful effort to show the application of any such theoretical objection to any request for discovery. Thus, this Court has deemed such ostensible objections waived or [has] declined to consider them as objections.") (quoting Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 666‑67 (D.Kan.2004) (internal quotations and citations omitted))....

Perhaps the greatest driving force in litigation today is discovery. Discovery abuse is a principal cause of high litigation transaction costs. Indeed, in far too many cases, economics‑and not the merits‑govern discovery decisions. Litigants of moderate means are often deterred through discovery from vindicating claims or defenses, and the litigation process all too often becomes a war of attrition for all parties....

....

Excessive and abusive discovery has been recognized as a serious problem for some time. More than 10 years ago, a study of Federal trial judges in two district courts found that they perceived "unnecessary, expensive, overburdening discovery as a substantial threat to the efficient and just functioning of the federal trial system for civil litigation." In 1980, a study of lawyers in Chicago found that 49 percent of those practicing in Federal courts believe that "overdiscovery" is a major abuse of the discovery process.

S.Rep. No. 101‑650, at 20‑21, as reprinted in 1990 U.S.C.C.A.N. 6823‑24 (internal citations omitted).

The apparent ineffectiveness of Rule 26(g) in changing the way discovery is in fact practiced often is excused by arguing that the cooperation that judges expect during discovery FN3 is unrealistic because it is at odds *361 with the demands of the adversary system, within which the discovery process operates. But this is just not so

.... It is not the purpose of this decision to assess fault. The trial judge, however, was not at fault. A judge with a caseload to manage must depend upon counsel meeting each other and the court halfway in moving a case toward trial."); Flanagan v. Benicia Unified Sch. Dist., 2008 WL 2073952, at *10 (E.D.Cal.2008) ("The abusiveness of plaintiff's discovery responses indicate a lack of cooperative spirit.... [P]laintiff's wilful disregard of the Federal Rules, and her lack of communication and cooperation with defense counsel in regard to all discovery, undermine the judicial process plaintiff herself has invoked."); Marion v. State Farm Fire and Casualty Co., 2008 WL 723976, at *3‑4 (S.D.Miss. Mar. 17, 2008) ("[T]he gravest 'error' committed by the Magistrate [Judge] was thinking that 'the parties [could] meet and confer to discuss any outstanding discovery requests,' because after this 'meet and confer' it was 'clear that the parties had done little to resolve their perceived differences on document production.'... This Court demands the mutual cooperation of the parties. It hopes that some agreement can be reached.... Neither [the Magistrate Judge] nor this Court will hesitate to impose sanctions on any one‑party or counsel or both‑who engages in any conduct that causes unnecessary delay or needless increase in the costs of litigation."(citing Fed.R.Civ.P. 26(g))); Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 45 (1st Cir.2007) (sustaining certain sanctions imposed by district court for discovery violations and noting with disapproval the lack of cooperation and responsiveness of defendants to plaintiff's attempts to comply with the discovery schedule); In re Spoonemore, 370 B.R. 833, 844 (Bkrtcy.D.Kan.2007) ("Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties' resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable."); Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir.1996) ("This Court cannot determine where the fault in this latest breakdown of attempted discovery lies. The Court is therefore assuming that both attorneys have failed in this regard. This Court is not happy with the progress, or should say lack of progress, relating to getting this case ready for trial. It is apparent that the attorneys involved in this case do not like each other, do not get along, and will not cooperate in the discovery process. The people who suffer when this happens are the parties.").

The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society....

Thus, partisan advocacy is a form of public service so long as it aids the process of adjudication; it ceases to be when it hinders that process, when it misleads, distorts and obfuscates, when it renders the task of the deciding tribunal not easier, but more difficult.

....

The lawyer's highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures*362 and institutions. The lawyer's role imposes on him a trusteeship for the integrity of those fundamental processes of government and self‑government upon which the successful functioning of our society depends.

... A lawyer recreant to his responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its justification. Everywhere democratic and constitutional government is tragically dependant on voluntary and understanding co‑operation in the maintenance of its fundamental processes and forms.

It is the lawyer's duty to preserve and advance this indispensable co‑operation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness....

... It is chiefly for the lawyer that the term "due process" takes on tangible meaning, for whom it indicates what is allowable and what is not, who realizes what a ruinous cost is incurred when its demands are disregarded. For the lawyer the insidious dangers contained in the notion that "the end justifies the means" is not a matter of abstract philosophic conviction, but of direct professional experience.

DOCUMENT REQUESTS

1. The contract or contracts between each of the Mayflower entities and Lunil Services, Agency, L.L.C. ("Lunil") reflecting Lunil's agreement to provide plant production workers for the Mayflower laundry for all the years in which the agreement or agreements between the Mayflower entities and Lunil were in effect.

RESPONSE: Objection. This request is overly broad and unduly burdensome, and is not reasonably calculated to lead to the discovery of material admissible in evidence at the trial of this matter in that it contains no time limitation whatsoever, and clearly seeks documents outside of the limitations period governing this action. Subject to and without waiving this objection, see attached agreement between Lunil Services Agency, LLC and Mayflower Healthcare Textile Services, LLC.

4. Any and all correspondence, e‑mail, and/or notes of oral conversations, and any other recordings, including documentation of payments that support the formation of a contract between Mayflower and Argo whereby Agro [sic] agreed to provide plant production workers for the Mayflower laundry plant, and any and all records that reflect the terms of that agreement.

RESPONSE: Subject to and without waiving this objection, any responsive non‑privileged documents, in [sic] any exist, ill [sic] be produced at a time mutually acceptable to the parties.

Pls.' Mot. Compel Def. Mayflower 2‑4, Reqs. 1, 4.

Second, I ordered Plaintiffs' counsel and Defendants' counsel to discuss the amount and type of discovery already provided, and then discuss the additional discovery still sought by Plaintiffs, in order to evaluate the Rule 26(b)(2)(C) factors, to determine whether Plaintiffs' legitimate additional discovery needs could be fulfilled from non‑duplicative, more convenient, less burdensome, or less expensive sources than those currently sought by the Plaintiffs. I further instructed Defendants' counsel that during this portion of the discussion, the burden was on the *365 Defendants to provide a particularized factual basis to support any claims of excessive burden or expense.

I then advised counsel that in their discussion they should attempt to reach an agreement, in full or at least partially, about what additional discovery (and from what sources) should be provided by Defendants to Plaintiffs. In doing so, I suggested that they consider "phased discovery," so that the most promising, but least burdensome or expensive sources of information could be produced initially, which would enable Plaintiffs to reevaluate their needs depending on the information already provided.

Finally, I advised counsel that when they had completed their discussion, they were to provide me with a status report identifying any unresolved issues, and if there were any, I gave them a format to use to present them to me in a fashion that would enable me to rule on them expeditiously.

It is apparent that the process outlined above requires that counsel cooperate and communicate, and I note that had these steps been taken by counsel at the start of discovery, most, if not all, of the disputes could have been resolved without involving the court. It also is apparent that there is nothing at all about the cooperation needed to evaluate the discovery outlined above that requires the parties to abandon meritorious arguments they may have, or even to commit to resolving all disagreements on their own. Further, it is in the interests of each of the parties to engage in this process cooperatively. For the Defendants, doing so will almost certainly result in having to produce less discovery, at lower cost. For the Plaintiffs, cooperation will almost certainly result in getting helpful information more quickly, and both Plaintiffs and Defendants are better off if they can avoid the costs associated with the voluminous filings submitted to the court in connection with this dispute. Finally, it is obvious that if undertaken in the spirit required by the discovery rules, particularly Rules 26(b)(2)(C) and 26(g), the adversary system will be fully engaged, as counsel will be able to advocate their clients' positions as relevant to the factors the rules establish, and if unable to reach a full agreement, will be able to bring their dispute back to the court for a prompt resolution. In fact, the cooperation that is necessary for this process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the time when the case may be resolved on its merits, or settled. This clearly is advantageous to both Plaintiffs and Defendants.

D.Md.,2008.

Mancia v. Mayflower Textile Servs. Co.

253 F.R.D. 354

(Caption)

PLAINTIFF'S FIRST SET OF INTERROGATORIES,

REQUESTS FOR PRODUCTION,

AND REQUESTS FOR ADMISSION TO DEFENDANT

Pursuant to the provisions of 12 Okla. Stat. §3233, 12 Okla. Stat. §3234, and 12 Okla. Stat. §3236, the following Interrogatories, Requests for Production, and Requests for Admission are herewith propounded and served upon the Defendant, to be answered separately and fully in writing by the Defendant under oath within thirty (30) days from the date of service hereof.

DEFINITIONS AND INSTRUCTIONS

12 Okla. Stat. §3233(A). Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. . . . The answers are to be signed by the person making them, and the objections signed by the attorney making them ... within thirty (30) days after the service of the interrogatories, except that a defendant may serve answers or objections to interrogatories within forty-five (45) days after service of summons and complaint upon that defendant. . . .

12 Okla. Stat. §3233(C). Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries thereof.

Okla. Stat. §3226(E). SUPPLEMENTATION OF RESPONSES. A party who has responded to a request for discovery with a response that was complete when it was made is under no duty to supplement the response to include information thereafter acquired, except as follows:

1. A party is under a duty seasonably to supplement the response with respect to any question directly addressed to:

a. The identity and location of persons having knowledge of discoverable matters, and

b. The identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony,

2. A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which

a. He knows that the response was incorrect when made, or

b. He knows that the response, which was correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

INSTRUCTIONS: 12 Okla. Stat. §3234(B) provides as follows:

The party upon whom the request is served, shall serve a written response within thirty (30) days after the service of the request, except that a defendant may serve a response within forty-five (45) days after service of the summons and petition upon that defendant, The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities shall be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. . . .

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

You are hereby requested to produce and permit inspection and copying of any and all writings, drawings, graphs, charts, photographs, motion picture films, phono-records, tape and video recordings, records and other data compilations (including computer data) from which information can be obtained, translated, if necessary, through detection devices into reasonably usable form, regarding the following Requests for Production.

Each matter separately set forth below shall be deemed admitted unless, within thirty (30) days after service of these Requests for Admission, Defendant serves upon Plaintiff a written answer or objection addressed to the matters of which admissions are requested.

12 Okla. Stat. §3236(A) provides as follows:

If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of subsection D of Section 3237 of this title, deny the matter or set forth reasons why he cannot admit or deny.

12 Okla. Stat. §3236(A) further provides:

If the court determines that an answer does not Comply with the requirements of this section, it may order either that the matter is admitted or that an amended answer be served,

The court may, in lieu of these orders, determine that the final disposition of the request be made at a pretrial conference or at a Designated time prior to trial, The provisions of paragraph 4 of subsection A of Section 3237 of this title apply to the award of expenses incurred in relation to the motion.

Plaintiff requests that Defendant consider each Interrogatory and Request to be continuing, and further requests Defendant to supplement its answers if additional information comes into possession of the Defendant or its attorneys between the date of service and the time of trial. Such additional answers shall be served seasonably, but not later than thirty (30) days after such information is received.

If the Defendant considers any document falling within these Requests for Production to be privileged from discovery, Plaintiff requests that at the time of responding to the Requests for Production, Defendant serves upon Plaintiff a written list of documents so withheld and identify each document by date, author, and the basis upon which the document is considered to be privileged from production or discovery.

Words used in the singular include the plural, words used in the plural include the singular. Words used in the present tense include the past tense, and words used in the past tense include the present tense.

To the extent that you consider any of the following Interrogatories, Requests for Production, or Requests for Admission objectionable, respond to so much of each request as is not objectionable, in your view, and separately state the part of each request to which you raise objection and the grounds for each such objection.

INTERROGATORIES

INTERROGATORY NO. 1: Identify the person(s) answering these Interrogatories, including your full name, residence address, business address, telephone number, and your official capacity with Defendant.

INTERROGATORY NO. 2: Identify by full name, telephone number and address each and every person known or believed by you and your attorney(s) to have information or knowledge of the allegations contained in Plaintiff's Petition. For each person identified herein, provide a detailed description of that person's knowledge.

INTERROGATORY NO. 3: Please identify by providing the full name, address, telephone number, and last known employer, for each Administrative/Executive Director employed at for the time period of ______________to the present.

INTERROGATORY NO. 4: Please identify by name, address, telephone number, and last known employer, for each [employee], employed at for the time period of to the present.

INTERROGATORY NO. 5: Identify, by listing the name, address, and telephone number of the employee, agent, or representative of Defendant with the most personal knowledge about the care measures undertaken to prevent the occurrence of pressure sores on and the care measures undertaken to promote the healing of such pressure sores after the same occurred. (If more than one person must be identified to accurately answer this interrogatory, please identify all such persons).

INTERROGATORY NO. 6: Describe in detail all measures, care, steps, and specific actions taken by Defendant to "...ensure that (1) a resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." (42 C.F.R. §483.25(c)(1) and (c)(2); Chapter 675. Regulations for Licensure of Nursing and Specialized Facilities, § 310:675-9-1.1(b)(1)(E) and (H).)

INTERROGATORY NO. 7: If any of the following requests for admission are denied, in whole or in part, identify the Request and give a complete description of all facts relied upon in making the denial, along with names, addresses and telephone numbers of all persons having sufficient knowledge of each fact to be able to testify as a witness. Also, give a detailed description of the substance and content of all expert opinions relied upon in making the denial, along with names, professional qualifications, addresses and telephone numbers of the persons rendering each opinion. Last, identify all documents and tangible things relied upon in making the denial. If any part of this Interrogatory is answered on information and belief set forth such information, its source, when and in what manner obtained and why it is reasonable to believe it true.

INTERROGATORY NO.8 : If any of the following Requests for Admissions is denied because of lack of information or knowledge, identify the Request and give a detailed chronological account of every effort by your or your attorneys to inquire into the subject matter of the Request, including the date of each effort, the person making each effort, the nature and substance of the effort and the information obtained by each effort.

INTERROGATORY NO. 9: State whether you, your attorneys, your insurance carrier, or anyone acting on your or their behalf obtained statements in any form from any persons regarding any of the events or happenings that occurred at the scene of the incident referred to in the complaint immediately before, at the time of, or immediately after said incident. If so, state, with respect to each such statement:

a. The name and address of the person from whom the statement was taken.

b. The date on which the statement was taken.

c. The name(s) and address(es) of the person(s) and employer(s) of such person(s) who took the statement.

d. The name(s) and address(es) of all person(s) having custody of the statement.

e. Whether the statement was written, by recording device, by court reporter, or by stenographer.

f. Which of the statements mentioned in subparagraph (a) above are signed by the person giving them.

g. If you will do so without a Motion to Produce, attach a transcribed copy of said statement(s).

INTERROGATORY NO. 10: Do you or anyone acting on your behalf know of any photographs, films, or video-recording depicting ? If so, state:

a. The number of photographs, the amount of time of video tape, or the size of each digital video-recording file;

b. The places, objects, or person photographed, filed, or video-recorded;

c. The date(s) the photograph, film, or video-recordings were taken;

d. The name, current (or last known) address and telephone number of each person who has the original and/or a copy of each photograph, film, or video-recording;

e. If any photographs, films, or video-recordings have been lost or destroyed, identify by name, current (or last known) address and telephone number and employment capacity the last person to have had possession of the photograph, films, or video-recording.

INTERROGATORY NO. 11: Are you aware of any person you may call as a witness at the trial of this action who may have or claims to have any information concerning the medical, mental, or physical condition of prior to her March 2007 admission to ? If so, state:

a. The name, last known address, occupation and employer of each person;

b. The subject and substance of the information each person claims to have.

INTERROGATORY NO. 12: Identify all claims made or lawsuits served at any time since January 1, 2000, against , which alleged negligence, wrongful death, or medical malpractice at or by . In your answer please provide the case name, court name, and court file number of each such lawsuit.

INTERROGATORY NO. 13: Please identify each expert whom you expect to call as a witness at trial, and state:

a. The expert's name, address, occupation and title;

b. The expert's field of expertise, including sub-specialties, if any;

c. A listing of any other cases in which the expert has testified as an expert at trial or by deposition within the preceding five years.

INTERROGATORY NO. 14: With respect to each expert identified in answer to the preceding interrogatory, please state:

a. The subject matter on which the person is expected to testify;

b. The substance of the facts and opinions to which the person is expected to testify;

c. A summary of the grounds for each opinion, including the specific factual data upon which the opinion will be based.

REQUESTS FOR ADMISSION

REQUEST FOR ADMISSION NO. 1: Admit that developed pressure sores, or bed sores, while a resident at .

REQUEST FOR ADMISSION NO. 2: Admit that suffered excessive weight loss while she was a resident of .

REQUEST FOR ADMISSION NO. 3: Admit that in___________, had to be transported from to Baptist Hospital for emergency treatment.

REQUEST FOR ADMISSION NO. 4: Admit that the medical records from reflect that on one or more occasions employees of ___________________ to while she was resident in that facility.

REQUEST FOR ADMISSION NO. 5: Admit that the medical records from reflect that on more than one occasion the dressing on 's pressure ulcer failed to be changed on a daily basis as ordered by her treating physician.

REQUEST FOR ADMISSION NO. 6: Admit that the medical records from reflect that on more than one occasion failed to comply with the dietary physician's orders for.

REQUEST FOR PRODUCTION OF DOCUMENTS

REQUEST FOR PRODUCTION NO. 1: A full and complete copy of 's medical records, charts, clinical records, documents, notes, etc. for the time period of her residency at .

REQUEST FOR PRODUCTION NO. 2: A complete copy of 's file maintained in the business office of as required by Chapter 675, Regulations for Licensure of Nursing and Specialized Facilities § 310:675-7-8.1(a).

REQUEST FOR PRODUCTION NO. 3: If not produced in response to the preceding Request for Production, a complete copy of all correspondence, notes, e-mails, reports, or other documents between and , or anyone acting on 's behalf, including, but not limited to, _____________.

REQUEST FOR PRODUCTION NO. 4: Produce color laser copies of all photographs of Plaintiff requests that the photographs be scanned onto a disc for production to Plaintiff.

REQUEST FOR PRODUCTION NO. 5: Produce copies of all video depicting .

REQUEST FOR PRODUCTION NO. 6: All records and/or documents and/or reference papers, which support or tend to support or are referenced, in Defendant's responses to Plaintiff's Interrogatories and Requests for Admission.

REQUEST FOR PRODUCTION NO. 7: Certified copies of all insurance agreements and policies which afford coverage to you or your agents, employees, officers, for any conduct, negligence, etc. alleged against you and your nursing home in Plaintiff's Petition.

REQUEST FOR PRODUCTION NO. 8: Certified copies of all insurance agreements and/or policies, in their entirety, which afford protection to you or for the acts and omissions set forth by Plaintiff in the Petition in the above-entitled and numbered cause including, but not limited to, primary, umbrella and excess policies, which may obligate any respective insurance company(ies) to satisfy part or all of a judgment which may be rendered in this action against the Defendant.

Ginger K. Maxted

SHELTON VOORHEES LAW GROUP

7701 South Western Ave., Suite 201

Oklahoma City, Oklahoma 73139

(405) 213-0236 (office)

(405) 601-0677 (facsimile)

Gmaxted@sheltonlawok.com