Discovery Interrogatories from Plaintiff to Defendant with Production Requests
Note: This summary is not intended to be an all-inclusive
summary of discovery law in Arkansas, but does include basic and other
information.
Definitions
Discovery: A procedure designed to allow disclosure
of information between Plaintiffs and Defendants. Written questions,
oral questioning, document production and admissions requests are generally
allowed. Discovery was designed to to prevent trial by ambush.
Interrogatories: Written questions from Plaintiff to
Defendant, or from Defendant to Plaintiff. The questions are mailed
to the Plaintiff, Defendant or the attorney for response in writing.
The answers or responses are usually due between 20-30 days.
Deposition: A procedure where verbal questions are
asked a Plaintiff or Defendant for immediate response. Depositions
are usually recorded by a court reporter, who swears the person to tell
the truth before questioning begins.
Production of Documents: The method of obtaining documents
from the other party relevant to the case such as all documents a party
intends to introduce at trial.
Requests for Admissions: Written questions where you
request the other party to admit or deny some relevant fact.
Objections: Objections may be made to all discovery
questions if the questions are not relevant, or likely to lead to the discovery
of relevant evidence.
Civil Procedure Rules: Virtually all states have adopted
a version of civil procedure rules which include rules dealing with discovery.
Arkansas Rules of Civil Procedure
Arkansas has adopted the Arkansas Rules of Civil Procedure which
contain rules governing discovery. The discovery rules also apply
in divorce actions.
Discovery Methods:Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things or
permission to enter upon land or other property, for inspection and other
purposes; physical and mental examinations; and requests for admission.
Unless the court orders otherwise under subdivision (c) of this rule, the
frequency of use of these methods is not limited. Rule 26(a)
Scope: Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the issues in the pending actions, whether it relates
to the claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence, description, nature,
custody, condition, identity and location of any books, documents, or other
tangible things and the identity and location of persons who have knowledge
of any discoverable matter or who will or may be called as a witness at
the trial of any cause. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
Rule 26(b)
Experts: Discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of subdivision
(b)(1) of this rule and acquired or developed in anticipation of litigation
or for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any other party
to identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which he is expected to
testify, and to state the substance of the facts and opinions to which
the expert is expected to testify and a summary of the grounds for each
opinion. (ii) Upon motion, the court may order further discovery by other
means, subject to such restrictions as to scope and such provisions, pursuant
to subdivision (b)(4)(C) of this rule, concerning fees and expenses as
the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in anticipation
of litigation or preparation for trial and who is not expected to be called
as a witness at the trial, only as provided in Rule 35(b) or upon a showing
of exceptional circumstances under which it is impractical for the party
seeking discovery to obtain facts or opinions on the same subject by other
means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions (b)(4)(A)(ii)
and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained
under subdivision (b)(4)(B) of this rule the court shall require the party
seeking discovery to pay the other a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and opinions
from the expert. Rule 26(b)(4)
Sequence and Timing of Discovery: Unless the court upon motion,
for the convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence and
the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery. Rule
26(d)
Supplementation of Responses: A party who has responded to
a request for discovery with a response that was complete when made is
under no duty to supplement his response to include information thereafter
acquired, except as follows:
(1) A party is under a duty seasonably to supplement his 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 and location of each person expected to be called as a witness
at trial, and in the case of expert witnesses, 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
to an interrogatory, request for production, or request for admission if
the party learns that the response is in some material respect incomplete
or incorrect and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in
writing.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses. Rule 26(e)
Before Whom Depositions May Be Taken: Within this state and
elsewhere in the United States or within a territory or insular possession
subject to the dominion of the United States, depositions shall be taken
before an officer authorized to administer oaths by the laws of this State
or of the place where the examination is held, or before a person appointed
by the court in which the action is pending. A person so appointed has
power to administer oaths and take testimony. Rule 28(a)
In a foreign state or country, depositions may be taken (1) on notice
before a person authorized to administer oaths in the place where the examination
is held, either by the law thereof or by the law of the United States,
or (2) before a person commissioned by the court, and a person so commissioned
shall have the power by virtue of his commission to administer any necessary
oath and take testimony, or (3) pursuant to any applicable treaty or convention
or pursuant to a letter of request, whether or not captioned a letter rogatory.
A commission or a letter of request shall be issued on application and
notice and on terms that are just and appropriate. It is not requisite
to the issuance of a commission or a letter of request that the taking
of the deposition in any other manner is impractical or inconvenient, and
both a commission and a letter of request may be issued in proper cases.
A notice or commission may designate the person before whom the deposition
is to be taken either by name or descriptive title. A letter of request
may be addressed "To The Appropriate Authority in (name of the country)."
When a letter of request or any other device is used pursuant to any applicable
treaty or convention, it shall be captioned in the form prescribed by that
treaty or convention. Evidence obtained in response to a letter of request
need not be excluded merely because it is not a verbatim transcript, because
the testimony was not taken under oath, or because of any similar departure
from the requirements for depositions taken within the United States under
these rules. Rule 28(b)
Depositions
Procedure in Deposition By Oral Examination: After
commencement of the action, any party may take the testimony of any person,
including a party, by deposition upon oral examination. Leave of court,
granted with or without notice, must be obtained only if the plaintiff
seeks to take a deposition prior to the expiration of 30 days after service
of the summons and complaint upon any defendant or service made under Rule
4(e), except that leave is not required (1) if a defendant has served a
notice of taking deposition or otherwise sought discovery, or (2) if special
notice is given as provided in subdivision (b)(2) of this rule. The attendance
of a witness may be compelled by subpoena as provided in Rule 45. The deposition
of a person confined in prison may be taken only by leave of court on such
terms as the court prescribes. Rule 30(a)
Notice of Examination; General Requirements; Special Notice;
Method of Recording; Production of Documents and Things; Deposition of
Organization:
(1) A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing to every
other party to the action. The notice shall state the time and place for
taking the deposition and the name and address of each person to be examined,
if known, and if the name is not known, a general description sufficient
to identify him or the particular class or group to which he belongs. If
a subpoena duces tecum is to be served on the person to be examined, the
designation of the materials to be produced as set forth in the subpoena
shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition
by plaintiff under subdivision (a) if the notice (A) states that the person
to be examined is about to go out of this state, or is about to go out
of the United States, and will be unavailable for examination unless his
deposition is taken before expiration of the 30 day period, and (B) sets
forth facts to support the statement. The plaintiff's attorney shall sign
the notice and his signature constitutes a certification by him that to
the best of his knowledge, information and belief, the statement and supporting
facts are true. The sanctions provided by Rule 11 are applicable to the
certification.
(3) The party taking the deposition shall state in the notice the
method by which the testimony shall be recorded. Unless the court orders
otherwise, it may be recorded by sound, sound-and-visual, or stenographic
means, and the party taking the deposition shall bear the cost of the recording.
Any party may arrange for a transcription to be made from the recording
of a deposition taken by nonstenographic means. With prior notice to the
deponent and other parties, any party may designate another method to record
the deponent's testimony in addition to the method specified by the person
taking the deposition. The additional record or transcript shall be made
at that party's expense unless the court otherwise orders.
(4) Unless otherwise agreed by the parties, a deposition shall be
conducted before an officer appointed or designated under Rule 28 and shall
begin with a statement on the record by the officer that includes: (A)
the officer's name and business address; (B) the date, time, and place
of the deposition; (C) the name of the deponent; (D) the administration
of the oath or affirmation to the deponent; and (E) an identification of
all persons present. If the deposition is recorded other than stenographically,
the officer shall repeat items (A) through (C) at the beginning of each
unit of recorded tape or other recording medium. The appearance or demeanor
of deponents or attorneys shall not be distorted through camera or sound-recording
techniques. At the end of the deposition, the officer shall state on the
record that the deposition is complete and shall set forth any stipulations
made by counsel concerning the custody of the transcript or recording and
the exhibits, or concerning other pertinent matters.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and tangible
things at the taking of the deposition. The procedure of Rule 34 shall
apply to the request. The court may on motion, with or without notice,
allow a shorter or longer time.
(6) A party may in his notice and in the subpoena name as the deponent
a public or private corporation or a partnership or association or governmental
agency and describe with reasonable particularity the matters on which
examination is requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents, or other
persons who consent to testify on its behalf and may set forth, for each
person designated, the matters on which he will testify. A subpoena shall
advise a non-party organization of its duty to make such a designation.
The persons so designated shall testify as to matters known or reasonably
available to the organization. This subdivision (b)(6) does not preclude
taking a deposition by any other procedure authorized by these rules.
(7) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone or other remote electronic
means. For purposes of these rules, a deposition by such means is taken
at the place where the deponent is to answer questions. Rule 30(b)
Interrogatories
Any party may serve upon any other party written interrogatories
to be answered by the party served or, if the party served is a public
or private corporation or a partnership or association or governmental
agency, by any officer or agent, who shall furnish such information as
is available to the party. Interrogatories may, without leave of court,
be served upon the plaintiff after commencement of the action and upon
any other party with or after service of the summons and complaint upon
that party.Rule 33(a)
(1) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the objecting
party shall state the reasons for objection and shall answer to the extent
the interrogatory is not objectionable. (2) The party answering interrogatories
shall repeat each interrogatory immediately before the answer or objection.
The answers are to be signed by the person making them and the objections
signed by the attorney making them. (3) The party upon whom the interrogatories
have been served shall serve a copy of the answers, or objections within
30 days after the service of the interrogatories, except that a defendant
must serve answers or objections within 30 days after the service of the
interrogatories upon him or within 45 days after the summons and complaint
have been served upon him, whichever is longer. A shorter or longer time
may be directed by the court or, in the absence of such an order, agreed
to in writing by the parties subject to Rule 29. (4) All grounds for an
objection to an interrogatory shall be stated with specificity. Any ground
not stated in a timely objection is waived unless the party's failure to
object is excused by the court for good cause shown. (5) The party submitting
the interrogatories may move for an order under Rule 37(a) with respect
to any objection to or other failure to answer an interrogatory. Rule 33(b)
Interrogatories may relate to any matters which can be inquired
into under Rule 26(b), and the answers may be used to the extent permitted
by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or contention
that relates to fact or the application of law to fact, but the court may
order that such an interrogatory need not be answered until after designated
discovery has been completed or until a pretrial conference or other later
time. Rule 33(c)
Production
Any party may serve on any other party a request (1) to produce
and permit the party making the request, or someone acting on his behalf,
to inspect and copy any designated documents (including writings, drawings,
graphs, charts, photographs, phono-records, and other data compilations
from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which constitute
or contain matters within the scope of Rule 26(b) and which are in the
possession, custody or control of the party upon whom the request is served;
or (2) to permit entry upon designated land or other property in the possession
or control of the party upon whom the request is served for the purpose
of inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b). Rule 34(a)
(1) The request may, without leave of court, be served upon the
plaintiff after commencement of the action and upon any other party with
or after service of the summons and complaint upon that party. The request
shall set forth the items to be inspected either by individual item or
by category, and describe each item and category with reasonable particularity.
The request shall specify a reasonable time, place and manner of making
the inspection and performing the related acts.
(2) The party upon whom the request has been served shall serve
a written response within 30 days after the service of the request, except
that a defendant must serve a response within 30 days after the service
of the request upon him or within 45 days after the summons and complaint
have been served upon him, whichever is longer. A shorter or longer time
may be directed by the court or, in the absence of such an order, agreed
to in writing by the parties subject to Rule 29. The response shall state,
with respect to each item or category, that inspection and related activities
will 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 and inspection
permitted of the remaining parts. The party submitting the request may
move for an order under Rule 37(a) with respect to any objection to or
other failure to respond to the request or any part thereof, or any failure
to permit inspection as requested.
(3) A party who produces documents for inspection shall (A) organize
and label them to correspond with the categories in the production request
or (B) produce them as kept in the usual course of business if the party
seeking discovery can locate and identify the relevant records as readily
as can the party who produces the documents. Rule 34(b)
This rule does not preclude an independent action against a person
not a party for production of documents and things and permission to enter
upon land. Rule 34(c)
Physical and Mental Examination of Persons
When the mental or physical condition (including the blood group)
of a party, or a person in the custody or under the legal control of a
party, is in controversy, the court in which the action is pending may
order the party to submit to a physical examination by a physician or a
mental examination by a physician or a psychologist or to produce for the
examination the person in his custody or legal control. The order may be
made only on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the time, place, manner,
conditions and scope of the examination and the person or persons by whom
it is to be made. Rule 35(a)
(1) If requested by the party against whom an order is made under
Rule 35(a) or the person examined, the party causing the examination to
be made shall deliver to him a copy of a detailed written report of the
examining physician or psychologist setting out his findings, including
results of all tests made, diagnoses and conclusions, together with all
like reports of all earlier examinations of the same condition. After delivery,
the party causing the examination shall be entitled, upon request to receive
from the party against whom the order is made, a like report of any examination,
previously or thereafter made, of the same condition, unless, in the case
of a report of examination of a person not a party, the party shows that
he is unable to obtain it. The court on motion may make an order against
a party requiring delivery of a report on such terms as are just and if
a physician or psychologist fails or refuses to make a report, the court
may exclude his testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered,
or by taking the deposition of the examiner, the party examined waives
any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has examined
or may thereafter examine him in respect to the same mental or physical
condition.
(3) This subdivision applies to examinations made by agreement of
the parties, unless the agreement expressly provides otherwise. This subdivision
does not preclude discovery of a report of an examining physician or psychologist
or the taking of a deposition of the physician or psychologist in accordance
with the provisions of any other rule or statute of this state. Rule 35(b)
(1) A party who relies upon his or her physical, mental or emotional
condition as an element of his or her claim or defense shall, within 30
days after the request of any other party, execute an authorization to
allow such other party to obtain copies of his or her medical records.
The term "medical records' means any writing, document or electronically
stored information pertaining to or created as a result of treatment, diagnosis
or examination of a patient.
(2) Any informal, ex parte contact or communication between a party
or his or her attorney and the physician or psychotherapist of any other
party is prohibited, unless the party treated, diagnosed, or examined by
the physician or psychotherapist expressly consents. A party shall not
be required, by order of court or otherwise, to authorize any communication
with his or her physician or psychotherapist other than (A) the furnishing
of medical records, and (B) communications in the context of formal discovery
procedures. Rule 35(c)
Rule 36 Requests for Admissions
A party may serve upon any other party a written request for the
admission, for purposes of the pending action, of the truth of any matters
within the scope of Rule 26(b) set forth in the request that relate to
statements or opinions of fact or the application of law to fact, including
the genuineness of any documents described in the request. Copies of documents
shall be served with the request unless they have been or are otherwise
furnished or made available for inspection and copying. The request may,
without leave of court, be served upon the plaintiff after commencement
of the action and upon any other party with or after service of the summons
and complaint upon that party.
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed
to the matter, signed by the party or by his attorney. However, a defendant
shall have 30 days after service of the request or 45 days after he has
been served with the summons and complaint to answer, whichever time is
longer. These time periods may be shortened or lengthened by the court.
If objection is made, the reasons therefor shall be stated. The party answering
requests for admissions shall repeat each request immediately before the
answer or objection. The answer shall specifically admit or 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 Rule 37(c), deny the matter or set forth reasons
why he cannot admit or deny it.
The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the requirements
of this rule, 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 final disposition of the request be made at a pre-trial conference
or at a designated time prior to trial. The provisions of Rule 37(a)(4)
apply to the award of expenses incurred in relation to the motion.
If an attorney for a party to whom requests for admission are addressed
signs an answer, his signature shall be deemed his oath as to the correctness
of the answer and his specific authority to bind the party on whose behalf
he signs. Rule 36(a)
Compel Discovery
a) Motion for Order Compelling Discovery.A party, upon reasonable
notice to all parties and all persons affected thereby, may apply for an
order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party
may be made to the court in which the action is pending, or, on matters
relating to a deposition, to the court in the place where the deposition
is being taken. An application for an order to a deponent who is not a
party shall be made to the court in the place where the deposition is being
taken.
(2) Motion. If a deponent fails to answer a question propounded
or submitted under Rules 30 or 31, or a corporation or other entity fails
to make a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in response
to a request for inspection submitted under Rule 34, fails to respond that
inspection will be permitted as requested, or fails to permit inspection
as requested, or if a party, in response to a request under Rule 35(c),
fails to provide an appropriate medical authorization, the discovering
party may move for an order compelling an answer, or a designation, or
an order compelling inspection in accordance with the request. The motion
shall include a statement that the movant has in good faith conferred or
attempted to confer with the person or party failing to make the discovery
in an effort to secure the information or material without court action.
When taking a deposition on oral examination, the proponent of the question
may complete or adjourn the examination before he applies for an order.
(3) Evasive or Incomplete Answer or Response. For purposes
of this subdivision, an evasive or incomplete answer or response is to
be treated as a failure to answer or respond. Rule 37(a)
Domestic Actions Discovery Notes
If you require extra time to respond to discovery, you should ask
the other side for an extension in writing. It may also be necessary
to enter an order granting the extension to protect your rights.
Discovery questions are limited in number so select the most important
questions to ask the other side. Don't waste your requests writing
questions that you already know the answer to.
