Discovery Deficiency Letter
(Federal)

Summary

This discovery deficiency letter is a standard form that attorneys can use in a federal court litigation to facilitate a discussion with opposing counsel concerning his or her failure to respond to discovery requests or provision of inadequate, incomplete, or otherwise deficient responses. This template includes practical guidance, drafting notes, alternate clauses, and optional clauses. Under Federal Rules of Civil Procedure (Federal Rules), if a person fails to make a disclosure required under Rule 26(a), you may file a motion to compel: • An answer to a question or interrogatory • A designation • A response to a request for production or inspection See Fed. R. Civ. P. 37(a)(3)(B). Before filing a motion to compel, you must confer or attempt to confer with opposing counsel in a good faith effort to resolve the issues raised by your motion. See Fed. R. Civ. P. 37(a)(1). If a conference occurs, your motion papers must include a certification specifying: • The date of the conference • The nature of the parties' communication  • The issues discussed –and–  • Any resolutions agreed to by the parties See Fed. R. Civ. P. 37(a)(1). If a conference does not occur, your certification must indicate your good faith efforts to attempt to confer with opposing counsel. See Fed. R. Civ. P. 37(a)(1). Accordingly, you should specifically detail: • All efforts made to confer with opposing counsel prior to your motion filing –and– • The reasons why a conference did not occur despite your efforts Some adversaries simply refuse to respond to any outreach efforts. To protect your client's interests, be sure to: • Document your requests for a conference in writing in a discovery deficiency letter –and– • Reach out to your adversary multiple times before filing your motion You can send this deficiency letter after: • You have served a party with discovery requests –and– • The party responded to those requests and you found their responses deficient –or– • The party failed to respond to those requests This letter contains several different sections and options depending on the problems with the responding party's discovery responses. There are separate sections for document requests and for interrogatories. Within each of those categories, there are paragraphs that address a lack of a response, an incomplete response, an improper invocation of a privilege or an objection, and other problems. Pick and choose from among these sections as your specific situation requires. If your adversary ignores your outreach efforts, you can attach your discovery deficiency letter as an exhibit to your motion to compel certification to show your good faith efforts to resolve the discovery dispute. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For more information on motions to compel discovery, see Motion to Compel Discovery: Making the Motion and Appealing an Adverse Ruling (Federal). For more information on drafting and responding to discovery requests, see Document Requests: Initial Considerations (Federal), Document Requests: Drafting and Serving RFPs (Federal), Document Requests: Responding to RFPs (Federal), Electronic Document Review Fundamentals (Federal), Interrogatories: Drafting and Serving Interrogatories (Federal), and Interrogatories: Responding to Interrogatories (Federal).