I enjoy sorting through discovery responses. No, I really do! Sometimes they arrive gift wrapped with tabs and paperclips and a handy index, but most often not. My favorite episode was when the client told me it should not be too much trouble because she is very organized and has provided two copies of everything. The first thing I pulled out was three years worth of bank statements. There were two copies just as she had promised, but I would swear she had shuffled both copies of all the statements together like a deck of cards. It took about a half hour just to put them in order. Good thing they put the statement date on each and every page!
As much as I may enjoy the “investigative” feel of putting the marital estate together, for the person providing those responsive documents and answers this is very personal! Even if the responses are coming from your own client, they may be provided grudgingly. For this reason, it is good practice to preserve the original response before you begin breaking it into pieces for purposes of establishing the marital estate.
The good news these days is that you do not necessarily need to lop down another tree to make a second “working” copy. I strongly recommend scanning the discovery response in its entirety (size permitting) before separating the documents in any way. If the responses are relatively small, i.e., arrived in an envelope or folder, you can easily scan the response in as a single document. On the other hand, if the responsive documents arrived in a box – or boxes! – the issue then becomes one of time and cost effectiveness. In this case, you may want to scan the covering document (Answers to Interrogatories or Response to Request for Productions of Documents) with an attached listing of the documents provided.
There is good reason for going to the trouble of preserving your original response, whether it comes from your party or the other side. For example, the client mentioned above had complaints about the amount of time she was billed for my review, organization and analysis of her responses. Since I had preserved a copy of her original response as received, we were able to show why it had taken some time just to get the documents in order in the first place. Note that I said “show” rather than “argue.” Always be as conciliatory as possible when discussing differences with clients, especially when it comes to billing issues. An argumentative tone indicates defensiveness and may give the client reason to believe they have valid concerns for their complaints.
There are equally good reasons to preserve the original response received from the opposing party. If the other party – or even your client – insists that certain documents were received from the other side within those discovery responses, you have a record of exactly what you received and a basis upon which to pursue additional discovery. Having complete, organized records which may be easily referenced provides less opportunity for repercussions from your client, the opposing counsel and the court.
In my next post, I will address what to do with those discovery documents now that you have preserved your original response. You know – the fun part!
I hope all is well with you and yours.