Discovery Drafting Under FRCP 26 Proportionality

Discovery drafting is the preparation of the written discovery instruments that exchange information between parties in a civil lawsuit: interrogatories (written questions answered under oath), requests for production (document requests), requests for admission (factual statements one party asks the other to admit or deny), and the responses and objections to each. Effective discovery drafting requires deep knowledge of the elements of each claim and defense, FRCP and state-rule numerical limits, proportionality analysis under FRCP 26(b)(1), and the precise objection language that preserves the right to limit production.

The five primary methods of civil discovery under the FRCP are: (1) interrogatories under FRCP 33; (2) requests for production of documents and things under FRCP 34; (3) requests for admission under FRCP 36; (4) depositions under FRCP 30 and 31; and (5) physical and mental examinations under FRCP 35 (used primarily in personal-injury cases). Most state courts use parallel methods. Legal Tank's discovery drafting service covers each method with attorney sign-off.

The four most commonly used types of civil discovery are interrogatories, requests for production of documents, requests for admission, and depositions. These four cover the vast majority of civil-case discovery; physical and mental examinations under FRCP 35 are reserved for cases where a party's physical or mental condition is in controversy. Legal Tank drafts each type with strict attention to FRCP and state-rule numerical limits and timing.

Drafting discovery means writing the precise text of the written discovery instruments and their responses: interrogatory questions, document requests, requests for admission, deposition notices, and the answers and objections served back. The drafter must phrase each request narrowly enough to survive overbreadth objections but broadly enough to capture the relevant information. The drafter must also identify the exact objections to preserve (relevance, proportionality, overbreadth, privilege, undue burden) for any responses requiring objections.

FRCP Rule 33 governs interrogatories: it allows a party to serve written questions on another party, limits the requesting party to 25 interrogatories including all discrete subparts unless the court allows more, requires the responding party to answer or object within 30 days of service, requires the answers to be made under oath, and allows business records to be produced in lieu of narrative answers in certain circumstances under Rule 33(d). Discovery drafters must respect the 25-question limit and the parsing of subparts.