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Does discovery have to proceed step-wise, or is it possible (or even routine) to combine the discovery process whenever possible? Here's a hypothetical example of what I mean:

I am suing an employer for discriminatory hiring practices against black candidates. Let us assume there is no question of law, but merely questions of facts. I might pursue the following discovery strategy:

  1. Request for admission: Do you discriminate against black candidates in your hiring processes? If not, then:
  2. Interrogatory: How many black applicants have you had for openings in the last year, and to how many of those did you extend offers of employment? If the answer is that you don't know, then:
  3. Request for Production: Produce all job applications you collected in the last year, and I'll figure it out.

The "step-wise* approach involves filing/serving each one of these on the opposing party, waiting for their response, and then (depending on the response) serving the next. Obviously in more complicated cases this could result in a lot of back and forth.

The "efficient" approach would be to serve all three as a single request, essentially as I wrote them here. Is this allowed? Common? Ill-advised?

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3 Answers 3

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In practice, you serve all three of those requests at once: RFA (Request for admissions), IROG's (interrogatories), and RFP's (request for the production of documents) all get served together. If you decide, from a strategic perspective to serve them individually, then you need to do it in order. It is your right to do it that way, so as to craft questions for the next set based on answers from the first; however, I've never seen this done. Typically at this point in litigation, you are dealing with a lawyer. In that case the lawyer will except service and you can forgo all the formal service guidelines. If the litigant is Pro Se you need to actually serve them. But still, as a grouping with a cover letter that sets out what is being served. The next step in discovery is the deposition, where you ask any questions that are not answered by the written discovery, or to try to trip them up with their own answers, which they've signed, but most likely didn't prepare and may not even know what they say. I have won many a case by getting a litigant to admit that they don't even know what their defense is as written in their signed and notarized interrogatory answers!

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  • And are they served in a conditional manner? E.g., would the cover letter in this hypothetical say, "We're trying to discover facts that support our argument. If you concede our argument never mind. If you don't, pick the easiest response that satisfies our needs from the following...." Because presumably the last thing either party wants is to transfer a truckload of business files for dissection.
    – feetwet ♦
    Sep 21, 2015 at 18:57
  • No. You just ask your questions. Your cover would say, "Please find enclosed RFA, RFP, IROGS (spelled out obvi), then they need to answer each question. They will never answer a RFA that says, "did you do what I'm accusing you of". You want answers to make out a circumstantial prima facie showing. You need to show: plaintiff was a member of a “protected group” The plaintiff was qualified in all respects for the job they sought The plaintiff was rejected in spite of being fully qualified After the rejection, the employer continued seeking for applicants with the plaintiff’s qualifications
    – gracey209
    Sep 21, 2015 at 19:16
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    They need to answer all of your questions (within the limitations set by the rules or the scheduling order); that said, they will have subparts making 25 more like 100. But, they need to answer every question. It's not answer a and if you agree skip to q. it's answer every question. Period. Discovery is nothing more than mining for evidence. The more the merrier.
    – gracey209
    Sep 21, 2015 at 19:20
  • And the same applies to requests for production? E.g., in this case presumably it is reasonable to request all job applications and related documentation. If this is a large company do I make them deliver 2 tons of documents to my office just because I can, even if, based on their answers, I have no need or intention to actually open those?
    – feetwet ♦
    Sep 21, 2015 at 19:24
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    In a real case and not a hypo, you would never probably serve RFA's. Only certain cases where the factual predicates are not agreed to and you want to serve a motion for summary judgment and you need it to pin cite disputed to or agreed to facts. Typically, you do IROGS and RFP's and then if something big comes up, then send a RFA where either way they answer they are screwed. Also, call it "Plaintiffs (or Def's) 1st set of. IROGS (or RFP)...and reserve a few for follow-up incase you find you can dispense with a deposition if you get a couple more answered..
    – gracey209
    Sep 21, 2015 at 20:19
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It depends completely on the situation. How much money is involved, how much time do the attorneys want to burn, etc.

In general, you should make all your requests up front, especially if it involves documents. Usually there are a time deadlines, so your discovery schedule will be constrained by those dates.

If you do things that could be construed as badgering the defendant or deliberately wasting their time, the judge could get annoyed.

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  • So in the given example, you're saying that it is preferable to file a single request as described? I.e., "Either admit you did this, or else give us these data, or else give us those documents?"
    – feetwet ♦
    Sep 21, 2015 at 18:25
  • @feetwet Threatening the defendant or abusing the discovery process to try to coerce a defendant into a false admission could get your case summarily dismissed. If you think that the defendant would voluntarily admit to the tort, you could always have a recorded interview.
    – Cicero
    Sep 21, 2015 at 18:32
  • Your answer is unclear. Can you address the example I provided? If I'm suing a corporate entity for alleged discrimination, does the line of discovery I propose conceivably constitute abuse or coercion? If so, how? And is it more or less "bad" to follow that line of discovery stepwise than in a single request?
    – feetwet ♦
    Sep 21, 2015 at 18:39
  • The discovery in your example seems perfectly reasonable to me, although personally I would never ask a defendant to make a confession. It is not clear what the venue is here. Are we all in a conference room in a law office, or is this a letter, a phone call?
    – Cicero
    Sep 21, 2015 at 18:45
  • In this formal example everything is by letter. Why would it ever be inadvisable to ask the defendant whether he will conceded the core fact being litigated? It seems odd to line up a huge discovery process without first establishing that it is even necessary because the facts being discovered are in dispute.
    – feetwet ♦
    Sep 21, 2015 at 18:53
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The Federal Rules deal with this. Many federal rules are adopted by state courts so it's worth double-checking the local rule.

FRCP 26(d)(3) as amended to Dec 1, 2015

Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:

(A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

1970 note:
Subdivision (d)—Sequence and Priority. This new provision is concerned with the sequence in which parties may proceed with discovery and with related problems of timing. The principal effects of the new provision are first, to eliminate any fixed priority in the sequence of discovery, and second, to make clear and explicit the court's power to establish priority by an order issued in a particular case.

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