By Meghan Droste, April 10, 2019
This month’s tip regarding discovery comes from both my experience as an employee-side attorney and also from my previous life when I occasionally represented federal agencies. As anyone who has had to engage in discovery can tell you, interrogatories are served in nearly every case and can take up a large amount of time to respond to. I know from both sides of the table that trying to ensure your client/witness is on top of drafting the responses, the inevitable follow-up emails and calls when they are not, and the reviewing and editing for comprehension can be incredibly time-consuming. Although I have never done it — more on why not in just a bit — I can somewhat understand the appeal of cutting out the middle man (and all of the related work) and just drafting the responses yourself. No follow ups, no explanations for why they really do have to respond, no editing needed; it’s all taken care of on time and done correctly.
Sounds great, right? Well…. no, sorry. You really shouldn’t respond to the interrogatories yourself, no matter how many headaches it might save you.
Why shouldn’t an attorney/non-attorney representative draft the responses to interrogatories?
For starters, you are not the witness/ complainant/responsible or responding management official (and if you are a witness or responsible management official you should speak with someone about having the case reassigned because you may run into some serious issues of privilege if you participated directly in the issues in the complaint).
As the representative, you do not have any direct, personal knowledge of the allegations or what occurred. Just as you cannot testify in a deposition or hearing about your understanding of the facts, you should not testify to them in the interrogatory responses. You need to ask the people who know about the events what happened, and they should be the ones drafting the responses.
When I was on the agency side of cases, I would identify everyone who might have relevant knowledge and then send each person the requests that applied to them. That might mean nearly all of them, or it might be just one or two, whatever was appropriate for each person. If more than one witness had knowledge responsive to a request, I would include all of their responses, clearly indicating what information was from each witness. I strongly encourage you to do the same.
If my advice isn’t enough to convince you, consider the case law on this issue. The Federal Rules of Civil Procedure, which are not binding but do provide guidance, contemplate an attorney signing discovery responses only as to the objections, and not to the substantive responses. See Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers [to the interrogatories] must sign them, and the attorney who objects must sign any objections.”); see also Sorrell v. District of Columbia, 252 F.R.D. 37, 43 (D.D.C. 2008) (holding a paralegal signing discovery responses to be improper because he would be attesting to the veracity of the answers and also making objections).
As one court has noted, the requirements under Rule 33(b)(5) are “critical because interrogatories serve not only as a discovery device but as a means of producing admissible evidence.” See Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008).
Your responses as a representative are not evidence; but the responses of the people with personal knowledge are. I know it may seem like a lot more work, but in the end it will be better for the agency, and it’s just the right thing to do. Droste@FELTG.com