Discovery Deficiency Letter
(NY)

Summary

This discovery deficiency letter is a standard form that attorneys can use in a New York state 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, and alternate and optional clauses. Under New York's Civil Practice Law and Rules (C.P.L.R.), you may file a motion to compel discovery if a person fails to respond to or comply with any: • Request • Notice (except a notice to admit) • Interrogatory • Demand • Question –or– • Order See N.Y. C.P.L.R. § 3124. Before filing a motion to compel, you must confer with opposing counsel in a good faith effort to resolve the issues raised by your motion. See 22 NYCRR 202.7(c). If a conference occurs, your motion papers must include an affirmation specifying: • The date of the conference • The nature of the parties' communication  • The issues discussed –and– • Any resolutions agreed to by the parties  See 22 NYCRR 202.7(c). If a conference does not occur, your affirmation must indicate good cause why the parties did not confer. See 22 NYCRR 202.7(c). 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 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 affirmation to show your good faith efforts to resolve the discovery dispute. Be aware that courts routinely deny motions to compel where the affirmation of good faith does not clearly demonstrate the moving party's diligent efforts to resolve the discovery dispute. See Natoli v. Milazzo, 886 N.Y.S.2d 205 (2d Dep't 2009); Amherst Synagogue v. Schuele Paint Co., Inc., 816 N.Y.S.2d 782 (4th Dep't 2006).  For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on motions to compel discovery, see Motion to Compel Discovery: Making and Opposing the Motion (NY). For related templates, see Notice of Motion (Motion to Compel Discovery) (NY), Memorandum of Law (Motion to Compel Discovery) (NY), and Affirmation (Motion to Compel Discovery) (NY). For more information on drafting and responding to discovery requests, see Document Requests: Drafting and Serving RFPs Checklist (NY), Document Requests: Responding to RFPs (NY), Interrogatories: Initial Considerations Checklist (NY), Interrogatories: Drafting and Serving Interrogatories (NY), and Interrogatories: Responding to Interrogatories (NY).