Discovery Dispute Resolution Letter

DISCOVERY DISPUTE LETTERS

Step-by-Step Instructions: Discovery Dispute Resolution Letter Instructions from Attorney to Associate Associate: Discovery dispute letters are critical to our litigation strategy and often determine whether we'll succeed on motions to compel. These letters must demonstrate good faith meet-and-confer efforts, document opposing counsel's unreasonable positions, and create a clear record for the court. Every sentence should advance our discovery goals while maintaining professionalism and enumerating the dispute as if it will be an exhibit or future motion.

STEP 1: GATHER DISCOVERY-SPECIFIC CASE INFORMATION Before You Start Writing, Collect: 1.1 Case and Procedural Information Case Caption: Full plaintiff v. defendant format Court and Case Number: Exact docket number Client Matter Number: Internal tracking number Judge: Include department/division if applicable Current Discovery Deadline: From scheduling order or stipulation Case Management Conference Date: If approaching 1.2 Discovery Conference Details – IF any. Conference Date and Time Participants: All attorneys and parties present Conference Type: Informal meet-and-confer, court-ordered. Outstanding Deadlines: From court order or conference If the letter is sent prior to the discovery conference, is the purpose to outline the issues for conferral. 1.3 Specific Discovery Disputes Discovery Requests: Numbers and exact language of disputed requests Objections Raised: Specific objections and grounds asserted Compromises Discussed: Any partial agreements reached, if it is after the discovery conference. If it is before, discuss any compromises or offers for resolution. Unresolved Issues: What still needs resolution, if a conference has already been held.

STEP 2: LETTERHEAD AND DISCOVERY-SPECIFIC HEADER Instructions: 2.1 Standard Professional Header: [DATE]

[OPPOSING COUNSEL NAME] [TITLE] [FIRM NAME] [ADDRESS] [CITY, STATE ZIP]

Via Email: [email@address.com] 2.2 Discovery-Specific Reference Line: Re: [Full Case Caption] [Court Name] Case No. [Number] Our Client: [Client Name] Matter No.: [Internal number] Discovery Conference Follow-Up [or "Discovery Dispute Resolution"] Discovery Cut-Off: [Date from scheduling order] Example Header: March 20, 2024

Jennifer L. Thompson, Esq. Partner Thompson, Williams & Associates 5678 Commerce Street, Suite 300 Chicago, IL 60601

Via Email: jthompson@twalaw.com

Re: Acme Construction Co. v. Superior Materials, Inc. U.S. District Court for the Northern District of Illinois Case No. 1:24-cv-03456 Our Client: Acme Construction Co. Matter No.: 2024-0234 Follow-Up to March 18, 2024 Discovery Conference Discovery Cut-Off: June 15, 2024

STEP 3: OPENING PARAGRAPH - ESTABLISH CONTEXT AND PURPOSE Instructions: 3.1 Reference the Discovery Conference State specific date and participants Acknowledge any agreements reached Identify remaining disputes requiring resolution Reference applicable deadlines 3.2 Set Professional but Firm Tone Acknowledge opposing counsel's cooperation (if any) Express hope for resolution, as it is important to the Court not to file a motion if the issues can be resolved informally. Make clear that motion practice may follow if necessary Example Opening: "Thank you for participating in our discovery conference on March 18, 2024. As we discussed, we were able to reach agreement on several discovery matters, including your willingness to produce the 2023 financial statements and our agreement to narrow Interrogatory No. 15 to the Chicago project only.

However, several significant discovery disputes remain unresolved, despite our good faith efforts to compromise. I am writing to memorialize these outstanding issues and seek resolution before the approaching discovery deadline. If we cannot reach agreement on these matters within ten days, we will be compelled to seek relief from the Court."

STEP 4: DOCUMENT AGREEMENTS REACHED (IF ANY) Instructions: 4.1 List Specific Compromises Be precise about what was agreed to Include deadlines for compliance Reference any modifications to original requests Confirm mutual understanding Example: "For clarity, I understand we have reached the following agreements:

1. You will produce Defendant's complete 2023 audited financial statements by March 25, 2024, subject to an appropriate confidentiality order.

2. We will narrow Interrogatory No. 15 to seek information only about the Chicago Harbor project, eliminating requests for information about other projects.

3. You will provide dates for the depositions of John Smith and Mary Johnson by March 22, 2024, with depositions to be completed by May 1, 2024.

Please confirm your agreement with these terms or notify me immediately if you understand our agreements differently."

STEP 5: ADDRESS EACH OUTSTANDING DISPUTE SYSTEMATICALLY Instructions: 5.1 Organize by Discovery Method Group by: Interrogatories, Document Requests, Deposition Issues Use clear headers for each section Number or bullet point each dispute for easy reference 5.2 For Each Disputed Item, Include: A. The Exact Request Language "Request for Production No. 23: All communications between Defendant and any subcontractor regarding the Chicago Harbor project from January 1, 2023, to present." B. Opposing Counsel's Objection "Your Response: 'Defendant objects to this request as overly broad, unduly burdensome, and seeking information protected by the attorney-client privilege and work product doctrine.'" C. Why the Objection Lacks Merit "This objection is without merit for several reasons: First, communications with subcontractors are clearly relevant to Plaintiff's claims regarding construction defects..." D. Your Proposed Compromise (If Any) "In an effort to resolve this dispute, we are willing to limit this request to communications from June 1, 2023 forward, and exclude communications with your counsel." Example Dispute Section: OUTSTANDING DOCUMENT PRODUCTION DISPUTES

1. Request for Production No. 23

Request: "All communications between Defendant and any subcontractor regarding the Chicago Harbor project from January 1, 2023, to present."

Your Objection: "Defendant objects to this request as overly broad, unduly burdensome, and seeking information protected by the attorney-client privilege and work product doctrine."

Response: This objection lacks merit. Communications with subcontractors are directly relevant to Plaintiff's claims regarding construction defects and are likely to lead to discoverable evidence under Fed. R. Civ. P. 26(b)(1). The request is narrowly tailored to the specific project at issue. Moreover, communications with third-party subcontractors are not protected by attorney-client privilege. See Upjohn Co. v. United States, 449 U.S. 383 (1981).

Proposed Compromise: To address any burden concerns, we will accept production limited to communications from June 1, 2023 forward, and agree to exclude any communications involving your counsel.

2. Request for Production No. 31 [Continue with same format]

STEP 6: ADDRESS DEPOSITION DISPUTES Instructions: 6.1 Identify Disputed Depositions Witnesses you want to depose Objections to scope or timing Disputes over location or duration 6.2 Address Each Dispute Legal basis for right to depose Relevance to case Proposed scheduling Scope limitations you'll accept Any objection as to the mode of deposition, in person or virtual. Any objections to the terms of deposition if virtual. Example: DEPOSITION DISPUTES

1. Deposition of CEO Robert Martinez

Your Position: You have indicated that Mr. Martinez is unavailable for deposition and that his testimony would be cumulative of other witnesses.

Our Position: Mr. Martinez's deposition is essential as he made the key decisions regarding subcontractor selection and project oversight. His testimony is not cumulative but goes to unique knowledge of decision-making processes. Under Fed. R. Civ. P. 30(a)(1), we have the right to depose parties' representatives with unique knowledge.

Proposed Resolution: We will limit Mr. Martinez's deposition to four hours and focus solely on his decision-making regarding subcontractor selection and project oversight. We are available for his deposition any day during the week of April 15-19, 2024.

STEP 7: INTERROGATORY DISPUTES Instructions: 7.1 Address Objections Systematically Quote the interrogatory exactly Address each objection raised Explain why response is inadequate Propose narrower alternative if appropriate Example: INTERROGATORY DISPUTES

Interrogatory No. 8: "Identify all persons with knowledge of facts relating to the Chicago Harbor project construction defects alleged in Plaintiff's Complaint."

Your Response: "Defendant objects to this interrogatory as vague, ambiguous, and overly broad. Subject to this objection, Defendant responds that John Smith, Mary Johnson, and Robert Martinez have knowledge of the project."

Inadequacy of Response: Your response fails to provide the addresses, job titles, and specific areas of knowledge required by Fed. R. Civ. P. 33(d). The objections lack merit as the interrogatory is directly tied to claims in the Complaint and uses standard discovery language approved by courts in this district.

Resolution Sought: Please provide a complete response including each person's current address, job title during the relevant period, and a brief description of their knowledge areas, as required by local rules.

STEP 8: SET DEADLINES AND CONSEQUENCES Instructions: 8.1 Propose Reasonable Deadline Consider court schedules and discovery deadlines Allow sufficient time for compliance, should the court deadlines allow for it. Reference any court-imposed deadlines 8.2 State Consequences Clearly but Professionally Motion to compel consideration Request for sanctions if appropriate Impact on case schedule Example: "Given the approaching discovery deadline of June 15, 2024, we need prompt resolution of these disputes. Please provide your response to this letter, including production of documents and scheduling of depositions, by April 5, 2024.

If we do not receive a satisfactory response by this deadline, we will file appropriate motions with the Court seeking an order compelling discovery, sanctions for unreasonable delay, and such other relief as may be just. We prefer to resolve these matters cooperatively, but we cannot allow discovery disputes to prejudice our client's case."

STEP 9: PROFESSIONAL CLOSING WITH PRESERVATION LANGUAGE Instructions: 9.1 Invite Further Discussion Show willingness to meet and confer further Provide direct contact information Suggest specific time for follow-up call, if I do not hear back from you I will call at this specific time______. To avoid an attorney who fails to follow up so the conversation never happens. 9.2 Include Discovery-Specific Preservation Language Example: "I am available to discuss these matters further and hope we can reach resolution without court intervention. Please call me at your earliest convenience to discuss any of these issues. I am generally available for a follow-up conference this week between 2:00 and 4:00 PM. If I do not year from you on a specific date/time that works best for you, I will give you a call on June 4, at 10:00 a.m.

As always, please ensure that your client continues to preserve all documents, electronically stored information, and other materials relevant to this litigation, including materials responsive to our pending discovery requests.

I look forward to your prompt response and to resolving these matters efficiently."

STEP 10: SIGNATURE BLOCK AND CASE MANAGEMENT Format: Sincerely,

[Your signature] [Your typed name] [Your title] [Direct phone number] [Direct email]

cc: [Client name] [Co-counsel if applicable]

Attachments:

• Copy of original discovery requests
• Excerpts from discovery conference notes
• Relevant court scheduling order

STEP 11: STRATEGIC CONSIDERATIONS BY DISPUTE TYPE Meet and Confer Letters (Pre-Motion) Purpose: Document good faith efforts required by rules, or detail the ways that discovery is insufficient prior to a formal conferral conference, so there is an agenda if the items cannot be resolved. Tone: Professional but firm, building record for motion Detail Level: Comprehensive - this may be exhibit to motion Timing: Allow reasonable response time before motion deadline Post-Conference Follow-Up Letters Purpose: Memorialize agreements and narrow remaining disputes, or the position on discovery. Tone: Collaborative while preserving positions Detail Level: Precise about what was agreed vs. disputed Timing: Send within 24-48 hours while memories are fresh Pre-Motion to Compel Letters Purpose: An attempt at resolution before court involvement Tone: Firm and formal, creating court record Detail Level: Comprehensive legal analysis of each dispute Timing: Allow sufficient time for response before filing deadline

STEP 12: FINAL REVIEW CHECKLIST FOR DISCOVERY LETTERS Procedural Requirements: All local rules' meet-and-confer requirements satisfied Reasonable deadline provided for response Good faith settlement efforts demonstrated All disputed items specifically identified Strategic Elements: Letter builds record for potential motion to compel Unreasonableness of opposing positions highlighted Client's willingness to compromise demonstrated Legal authority cited for contested positions Professional Standards: Tone is firm but professional throughout All factual statements are accurate and verifiable Discovery requests quoted exactly as served Responses characterized fairly (even if inadequate) Court Readiness: Letter could serve as exhibit to motion to compel Creates clear record of meet-and-confer efforts Demonstrates reasonableness of client's position Shows opposing party's unreasonable obstruction

SPECIAL CONSIDERATIONS FOR DIFFERENT COURTS Federal Court (FRCP) Emphasize Rule 26(f) meet-and-confer requirements Reference proportionality standards from Rule 26(b)(1) Consider magistrate judge referral possibilities Account for case management order deadlines State Court Check local discovery rules and timelines Verify meet-and-confer requirements vary by jurisdiction Consider different objection standards Account for different discovery cut-off calculations Complex Commercial Cases Address e-discovery protocols specifically Consider protective order requirements Account for voluminous document productions Address privilege log disputes Remember: Discovery dispute letters often become court exhibits. Write every sentence as if the judge will read it, because they probably will. Make our client look reasonable and opposing counsel look obstructionist, but always maintain professionalism and accuracy.