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Answering Discovery FAQs with Joshua Brinen

Oct 19, 2022 | Litigation

What is Discovery?

Discovery is a phase of litigation that happens after the pleading stages. As you may remember, in the pleading stages, a summons and complaint are served after being filed with the court. Then the defendant either answers, moves to dismiss, answers with counterclaims or crossclaims, or brings in third parties. Once the bounds and meets of the litigation are determined the court will then move the case into discovery. Discovery is quite literally where everybody shows their cards. In discovery, you ask for documents, and emails, ask questions in written form, and request admissions as to facts. The culmination of discovery is a deposition where opposing counsel questions either the plaintiff or defendant or a third party about the material facts of the case.

What is a Request for Admission?

A request for admission is a direct question that can be answered in a yes or no manner by the opposing side. It cannot discuss a material fact of the case and it cannot discuss an issue that would resolve the case. It can authenticate documents or clarify statements, and narrow the focus of the litigation as a whole. When responding to a request for admission, you must either admit or deny, objections may be raised and specifically, an objection as to not having enough knowledge, or legal conclusion, or an indefinite statement may be raised to avoid or delay answering a request for admission. However, at the end of the day, all requests for admission must be admitted or denied.

What is a Request for Production of Documents?

If a request for admission is a request to admit or deny a particular fact and is narrow, a request for production of documents is necessarily a broader request. A request for production of documents will ask for a class or a specific document that one side believes the opposing side has in its possession. A request for production of documents should be bound by a specific timeframe that is relevant to the litigation. It should be as broad as possible, but narrowly tailored to ask for a specific group of documents and should not be compounded in what it is asking.

What does not being compound mean? It means you should ask for documents from A to B about C. It shouldn’t list a group of people unless done as a class. Requests for production of documents can be responded to by producing the documents or objected to: for vagueness, compound questions, or overbroad, which means to say you’re asking for too many documents or you’re asking for a timeframe that is well beyond what you might need to prosecute the lawsuit.

A request for production of documents can also encompass something new in the last 10 or 15 years which is electronically stored information. A request for production of documents can delve into emails, text messages, slack messages, and other electronic forms of communication. At the end of the day, a request for production of documents must be either objected to or documents produced, or the other side must be told that you do not have those documents. The production from these requests will be the basis of a deposition.

What is an Interrogatory?

If a request for admission is a request to admit or deny and a request for production of documents is a request to see what evidence in written form or electronically stored information the other side has, an interrogatory is a question that must be answered in essay form. Interrogatories are limited to a certain number, depending on the court. In federal court, it is 35 interrogatories and depending on which state court you are in, it may involve a similar limitation. Interrogatories do not ask to admit or deny, but merely explain. Explain your theory of damages. Explain your theory of liabilities. Tell me what witnesses you have. Tell me who you used to prepare the request for production of documents, the request for admission, and those interrogatories. Interrogatories are limited but are sworn under oath, so they must be prepared with great caution.

What is a Deposition?

After the requests for admission have been admitted or denied, after documents have been produced, and after interrogatories have been answered, opposing counsel may request a deposition of you or your client. A deposition is an examination by an attorney under oath. A deposition may be used at trial to impeach a witness if that witness is changing his or her story. A deposition is the first opportunity for an attorney to see how a witness, or the plaintiff, or the defendant, behaves when being questioned on the stand. Depositions are very important and can take up to seven hours under the Federal Rules of Civil procedure, not including breaks. Depositions are the first time the witness, the plaintiff, or the defendant is tested and is the culmination of the discovery process.

What is a Special Master, and What is His or Her Purpose in Litigation?

A special master is a person appointed by a judge who handles specific matters. A special master can be used in many phases of litigation. For the purposes of this discussion, I’d like to limit the use of a special master to the discovery phase of litigation. A special master will be appointed to handle discovery disputes. So if a request for admission is challenged, and objected to, and the plaintiff and defendant cannot resolve their differences and the asker of the request for admission cannot admit or deny from the other side they might bring that to a special master. Likewise with an interrogatory and most often with a request for the production of documents, might a special master be involved.

The special master will review the discovery dispute and make rulings or recommendations to the judge on how the discovery dispute should be resolved. A special master is not a magic wand. A special master is a neutral referee who will sort out the thorny issues of discovery and make rulings on such matters as privilege, and confidentiality, and who may see what is produced during the discovery phase, to expedite and take work off the main judge.

Contact a Skilled Attorney

Brinen & Associates advises clients regarding their options and remedies for lawsuits. Call (212) 330-8151 or send us a message to schedule a consultation. 


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I formerly worked as a satellite employee from my home state of New Jersey. I ended my employment with my former employer in 2016. In 2018, I was sued by my former employer for $1.1 million in Illinois State Court. I was referred to Brinen & Associates, LLC by a friend who is a client of the firm. Brinen & Associates, LLC came highly recommended. I contacted Joshua Brinen and then had a consultation at his office with his colleague Mark White. Together, Messrs. Brinen and White explained my options...

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