Discovery Interrogatories from Defendant to Plaintiff with Production Requests
Note: This summary is not intended to be an all inclusive
summary of discovery law in Tennessee, 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.
Tennessee Rules of Civil Procedure
Tennessee has adopted the Tennessee 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.
Rule 26.01
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 subject matter involved in the pending action,
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 and location of any books, documents,
or other tangible things and the identity and location of persons having
knowledge of any discoverable matter. 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.
The frequency or extent of use of the discovery methods set forth
in subdivision 26.01 shall be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative or is
obtainable from some other source that is more convenient, less burdensome
or less expensive; (ii) the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought; or, (iii)
the discovery is unduly burdensome or expensive, taking into account the
needs of the case, the amount in controversy, limitations on the parties'
resources, and the importance of the issues at stake in the litigation.
The court may act upon its own initiative after reasonable notice or pursuant
to a motion under subdivision 26.03.
Rule 26.02
Experts:
Discovery of facts known and opinions held
by experts, otherwise discoverable under the provisions of subdivision
(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 the
expert 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) A party may also depose any other party's
expert witness expected to testify at trial.
(B) A party may not discover the identity of, facts known by, or
opinions held by an expert who has been consulted by another party in anticipation
of litigation or preparation for trial and who is not to be called as a
witness at trial except as provided in Rule 35.02 or upon a showing that
the party seeking discovery cannot 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 (4)(A)(ii)
and (4)(B) of this rule; and (ii) with respect to discovery obtained under
subdivision (4)(A)(ii) of this rule the court may require, and with respect
to discovery obtained under subdivision (4)(B) of this rule the court shall
require, the party seeking discovery to pay the other party a fair portion
of the fees and expenses reasonably incurred by the latter party in obtaining
facts and opinions from the expert.
Rule 26.02(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
26.04
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 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 though
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.
(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 26.05
Discovery Conference:
At any time after commencement of an action the court may direct the attorneys for the parties to appear before
it for a conference on the subject of discovery. Rule 26.06
Before Whom Depositions May Be Taken:
Within 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 the United States 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. In videotaped depositions taken pursuant to Rule 30.02(4)(B),
any lawyer or lawyer's agent can operate the equipment. Rule 28.01
In a foreign country, depositions may be taken (1) on notice before
a person authorized to administer oaths in the place in which 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 a letter rogatory. A commission
or a letter rogatory 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 rogatory that the taking of the deposition in any
other manner is impracticable or inconvenient; and both a commission and
a letter rogatory 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 rogatory may be addressed "To the
Appropriate Authority in (here name the country)." Evidence obtained in
response to a letter rogatory need not be excluded merely for the reason
that it is not a verbatim transcript or that the testimony was not taken
under oath or for any similar departure from the requirements for depositions
taken within the United States under these rules. Rule 28.02
Stipulations:
Unless the court specifically orders otherwise,
the parties may by written stipulation signed by all parties or counsel
(1) provide that depositions may be taken before any person, at any time
or place, upon any notice, and in any manner, and when so taken may be
used like other depositions, and (2) modify the procedures provided by
these rules for other methods of discovery. Rule 29
Depositions:
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 4.05, 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 Rule 30.02(2). The attendance
of witnesses 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 30.01
A party desiring to take the deposition of any person upon oral
examination shall give notice in writing to every other party to the action.
The notice shall be served on the other parties at least five days beforehand
when the deposition is to be taken in the county in which suit is pending.
When the deposition is to be taken out of the county, at least seven days'
notice shall be given. 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 the person or the particular class or group to which the person
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.
Notwithstanding paragraph (A), any deposition may be recorded by
audio-visual means without a stenographic record. Any lawyer or lawyer's
agent can operate the equipment. Any party may make at the party's own
expense a simultaneous stenographic or audio record of the deposition.
Upon a party's request and own expense, any party is entitled to an audio
or audio-visual copy of the audio-visual recording. The audio-visual recording
is an official record of the deposition. A transcript prepared by a court
reporter is also an official record of the deposition. On motion the court,
for good cause, may order the party taking, or who took a deposition by
audio-visual recording to furnish, at the party's expense, a transcript
of the deposition. Rule 30.02
Interrogatories
Availability; Procedures for Use.
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.
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.
The party upon whom the interrogatories have been served shall serve a
copy of the answers, and objections if any, within 30 days after the service
of the interrogatories, except that a defendant may serve answers or objections
within 45 days after service of the summons and complaint upon that defendant.
The court may allow a shorter or longer time. The party submitting the
interrogatories may move for an order under Rule 37.01 with respect to
any objection to or other failure to answer an interrogatory. Rule 33.01
Rule 34 Production
Production of documents and things and entry upon land for inspection
and other purposes - Scope.
Any party may serve on any other party a request
(1) to produce and permit the party making the request, or someone acting
on the party's 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)
Procedure.
(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 is served shall serve a written response within
15 days after the service of the request, except that a defendant may serve
a response within 30 days after service of the summons and complaint 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 will be permitted as requested, unless the request is
objected to, in which event any reasons for objection shall be stated.
If objection is made to part of an item or category, the part shall be
specified. 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) The request for production, the response thereto, and
all or any documents produced pursuant to this Rule shall not be filed
with the court. The party demanding an inspection or production shall retain
both the original of the inspection or production demand, with the original
proof of service affixed to it, and the original response, until one (1)
year after final disposition of the action. At that time, both originals
may be destroyed, unless the court, on motion of any party and for good
cause shown, orders that the originals be preserved for a longer period.
Rule 34(b)
Persons not parties.
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)
Notice of filing and notice of compliance.
The party serving requests for production of documents shall file with the court a notice stating
when and on whom such request was served. The party responding to a request
for production of documents may file with the court a notice stating when
and on whom the response was served, or otherwise indicating that there
has been compliance with the request. Rule 34(d)
Physical and Mental Examination of Persons
When the mental or physical condition (including the blood group)
of a party, or of 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 or mental examination
by a physician or to produce for 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 35.01
If requested by the party against whom an order is made under Rule
35.01 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 setting out his findings, including results of all tests made,
diagnoses and conclusions, together with 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 fails or refuses
to make a report the court may exclude his testimony if offered at the
trial.
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 of the same mental or physical
condition.
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 the
taking of a deposition of the physician in accordance with the provisions
of any other rule. Rule 35.02
Requests for Admissions
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Rule 26.02 set forth in the request that relate
to statements or opinions of fact or of 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.
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Rule 26.02 set forth in the request that relate
to statements or opinions of fact or of 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.
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 37.01(4)
apply to the award of expenses incurred in relation to the motion. Rule
36.01
Compel Discovery
A party, upon reasonable notice to other 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 or to a deponent who is not a party, may be made to the court
in which the action is pending.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under Rule 30 or 31, or a corporation or other
entity fails to make a designation under Rule 30.02(6) or 31.01, 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, the discovering party may move for an order compelling
an answer, or a designation, or an order compelling inspection in accordance
with the request.
When taking a deposition on oral examination, the proponent of the
question may complete or adjourn the examination before he applies for
an order.
If the court denies the motion in whole or in part, it may make
such protective order as it would have been empowered to make on a motion
made pursuant to Rule 26.03. Rule 37.01
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.
