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MAKE THEM ANSWER THE QUESTIONS

By Michael A. Bryant and Jodi Beste

Bradshaw & Bryant, PLLC

A vital part of any law suit is the discovery process. It is here that we learn more about our case through what evidence the defense provides and from what our client additionally discloses. It is here we get a deeper look at our cases. The meaningful part of discovery exchange is getting answers to our questions.

Imagine setting up the defendant’s deposition, having them show up and then have the deponent not answer a single one of your questions. This is no different and is no more acceptable when the defense attorney answers every one of your questions with an objection. In the age of wanting to get along or being too busy, sometimes the easy way is to just look beyond the objections and see what it is that they do answer. There are practical legal reasons why that acceptance is not the best response. It is suggested instead that a letter should be sent off requesting that these questions be fully answered without the objections. You should also request that all items that may be potentially discoverable but are being objected to under some claim of privilege be listed out in a privilege log. This will ensure that you are given enough information to decide whether or not a motion should be brought. Clearly state in the letter that if these answers are not properly made or a privilege log is not provided, a motion will be brought. This letter is important not only because the defense may answer, but also because the Court will require this attempt to be made before the motion can be brought under Minn. R. Civ. Pro. 37.

If the defense continues to not fully answer the questions free of unnecessary objections, a motion should be brought.

BRINGING THE MOTION

In any case of discovery, pleadings have some purpose in defining issues to be tried, and when essential facts are admitted by the pleadings or by admissions under the applicable rule, they no longer are in issue until some action is taken to appraise the court and adversary that the litigant wishes to abandon the position he formerly has taken and change his course of procedure. Phelps v. Benson, 90 N.W.2d 533, 546 (Minn. 1958). Furthermore, while a proponent of discovery has no duty to make a Rule 37 motion to compel answers, upon failure or refusal to answer, the lawyer should do so if it would be in furtherance of securing the information needed for the claim or defense. Garrity v. Kemper Motor Sales, 159 N.W.2d 103, 107 (Minn. 1968).

The motion should be brought under Rule 37.01:

Minn. R. Civ. Pro. 37.01 Motion for Order Compelling Discover provides:

... (b) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30.02(f) or 31.01(c), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

Minn. R. Civ. Pro. 37.01 (b)(emphasis added). Minnesota Rule 37.01 goes further in (c) to describe the issue that is at the very heart of this motion.

(c) Evasive or Incomplete Answer, or Response. For purposes of this subdivision an evasive or incomplete answer, or response is to be treated as a failure to disclose, answer, or respond.

Minn. R. Civ. Pro. 37.01 (c).

Trial courts have “considerable discretion in granting or denying discovery requests.” Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987); see also Shetka v. Kueppers, Von Feldt, & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). A case which illustrates where a district court expressly overruled the objections made by the defendant in its answers to interrogatories is Moore v. Freeman, 2003 W.L. 23737251 at 5 (Unpublished). The court in Moore ordered the defendant to supply full, complete and sworn answers to the interrogatories.

What the defense is doing by objecting is not properly answering the question and providing themselves cover for giving an incomplete or potentially inaccurate response. Further, the objections make for an answer which is not easily used in trial for impeachment purposes. By objecting to the question, they are in fact not answering the question and are not providing you with a usable answer.

IN MAKING THE MOTION, ATTORNEY’S FEES SHOULD BE REQUESTED

Under Minn. R. Civ. P. 37.01(d), the imposition of attorneys’ fees and costs is mandatory rather than discretionary, if a motion to compel discovery is granted:

[T]he court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

Minn. R. Civ. P. 37.01(d)(emphasis added); See McCarthy Well Co., Inc. v. St. Peter Creamery, Inc., 410 N.W.2d 312, 317 (Minn. 1987)(“...one of the purposes of interrogatories is to prevent unjust surprise and prejudice, and the purpose of imposing sanctions is to prevent a party who fails to comply with Minn. R. Civ. P. 33 from profiting from his or her own wrong”); See also, Kramer v. Boeing Co., 126 F.R.D. 690, 697 (D. Minn. 1989)(interpreting substantially similar Fed. R. Civ. P. 37(A)(4)).

Minn. R. Civ. P. 37.04, also sets forth sanctions for a party’s failure to comply with discovery requests:

If a party or an officer, director, employee, or managing agent of a party or a person designated in Rules 30.02(f) or 31.01 to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted pursuant to Rule 33, after proper service of the interrogatories...the court in which the action is pending on motion may make such orders in regard to the failure as are just, including any action authorized in Rule 37.02(b)(1), (2) and (3). In lieu of any order or addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds the failure was substantially justified or other circumstances make an award of expenses unjust.

The failure to act described herein may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26.03.

The claim for attorney’s fees exist to further two goals: To penalize those whose conduct is deemed to warrant sanction, and to deter others who may be tempted to behave in such a way as to warrant the imposition of sanctions in the future. Patton v. Newmar Corp., 520 N.W.2d 4, 7 (Minn. App. 1994).

IN BRINGING THIS MOTION, YOU MUST MAKE SURE YOUR HOUSE IS CLEAN ALSO

One thing that must be kept in mind is this: If you are going to fight this battle, you should be answering your own interrogatories without unwarranted or unnecessary objections. While the proper objection is necessary and mandatory in representing your client, if we are going to force the defense to answer questions, we have to make sure that we are answering the questions ourselves.

While the Court may not always grant these motions, it is important that they see what the defense is doing by not answering the questions. Hopefully the judge will be bothered by answers that start with an objection to every question. Under the nature of full disclosure, it is completely unacceptable to have every answer objected to. Thus, these motions are not only important, but they should lead to getting your questions answered. By getting your question answered, it will get to the very heart of what your case is all about.









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