Discovery Dos and … please don’t do that!

By Judge Joshua Davis Baker, Nashville

 

As all legal practitioners know, discovery is as common as a cold. As we also know, it can be laborious, time-consuming, frustrating and, at times, downright non-productive. However, like the mail, neither rain, nor sleet, nor snow can prevent it from happening.

In the Court’s three-year history, the judges have been presented with uncountable discovery motions of all varieties. Most commonly, the motions request an order compelling an opposing party to answer interrogatories or respond to requests for production of documents.

In the past year, the Court’s rules on discovery have undergone some changes. This posting will address those changes as well as provide some (hopefully) helpful pointers on conducting discovery in the Court of Workers’ Compensation Claims.

In general, the Tennessee Rules of Civil Procedure govern practice in cases before the Court. However, the mediation and hearing procedures, found in chapter 0800-02-21-.16 of the Tennessee Administrative Register, also address discovery in the Court of Workers’ Compensation Claims.

Because there are two sets of rules, it is important to remember that whenever the rules directly conflict, Rule .16 controls. For example, the Rules of Civil Procedure do not limit the number of interrogatories a party may serve. Rule .16(4)(c), however, limits the number of interrogatories to be served on an opposing party to twenty, including any subparts. In this instance, Rule .16(4)(c) directly conflicts with the Rules of Civil Procedure and is controlling. While this rule also allows the presiding judge to increase the number of interrogatories a party may serve, no party may serve more than twenty interrogatories without prior permission, which can be obtained by filing a motion.

As a word of caution, any party who serves more than twenty interrogatories without permission from the Court and then files a motion to compel a response, will likely have the motion denied. Also, the Court may order the opposing party to only answer the first twenty, meaning that if the crucial information sought is “back loaded,” the offending party may be denied the discovery it truly desires. The bottom line is to be cautious and ask permission before serving more than twenty interrogatories.

Another notable difference between the Court’s discovery rules and the Rules of Civil Procedure concerns voluntary resolution. While both the Court’s rules and the Rules of Civil Procedure encourage parties to cooperate in discovery, Rule 16(2)(c) requires that any discovery-related motion be accompanied by a statement from the moving party detailing the good-faith effort made to resolve the dispute before filing the motion. The Rules of Civil Procedure contain no such requirement. On this issue, the Court has denied many motions to compel because the moving party failed to provide a statement detailing its efforts before filing a motion to compel discovery. (FYI: a letter with a draft motion to compel enclosed, which says something to the effect of “give me everything I want or I’ll file this,” isn’t really a good-faith effort. It’s a threat.)

At the same time, self-represented litigants must answer written discovery. As this Court explained countless times to the self-represented, the employee has to answer interrogatories and provide documents or a written response to a request for document production within 30 days. Failure to do so may result in the assessment of attorney fees or dismissal of the action.

As a final note, please don’t ask for unnecessary discovery. The Rules of Civil Procedure allow the Court discretion to deny a discovery request that is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. With that in mind, please avoid serving “boilerplate” discovery requests that seek documents or information wholly unrelated to the claim. For example, several judges have recently received motions to compel medical records from every doctor the employee treated with throughout the employee’s entire life. The Court has no interest in the employee’s infant vaccination records, or progress notes concerning their recovery from a tonsillectomy. The request is so overly broad as to be laughable, and the Court will not enforce a request of this type.

That’s why it is important to remember to focus your requests only to the pertinent issues. If you have done so, and the opposing party still refuses to comply, your chances of gaining assistance from the Court are favorable.

In the end, when drafting discovery, please be deliberate and thoughtful. By carefully crafting your requests to fit the circumstances of the case, the parties can streamline the litigation process by avoiding needless motions and ensuring that the claim proceeds smoothly and quickly.

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