eDiscovery professionals are laser-focused on “requests for production” when identifying responsive records in litigation support software. This is natural, given that document productions start with requests for production. However, discovery is far more than requests for production. There are special interrogatories and requests for admissions that should not be forgotten when reviewing electronically stored information (ESI).
Special interrogatories and requests for production are often logically connected by subject matter. In a California discovery dispute, a contention interrogatory over trade secret misappropriation called for the responding party to identify all documents and ESI that constituted trade secrets. Evans v. Realty, 2025 Cal. Super. LEXIS 18988, *2.
The responding party stated that there were no records that constituted trade secrets; however, there were documents that contained the trade secrets at issue in the case. Id.
The responding party provided descriptions of the alleged trade secrets misappropriated by the propounding party. The responding party asserted that the propounding party gained knowledge of customer preferences by reviewing documents while the responding party was an employee. The Court noted that the distinction between the words “contain” and “constitute” was not a meaningful difference. Evans, at *2-3.
Based on there not being a meaningful difference between “contain” and “constitute”, the Court ordered the responding party to identify the documents that either contained or constituted trade secrets within 20 days. Id.
Bow Tie Thoughts
Lawyers often debate definitions in discovery requests. “Constitute” and “contained” are examples of the analytical rabbit holes lawyers fall down. It is important to ask, “Is this what the other side wants?” There is a risk that overthinking definitions can result in motion practice.
Parties frequently use special interrogatories to get responding parties to identify records that support claims, defenses, or allegations in a complaint. There is often a mirroring request for production seeking what was identified in the special interrogatory. Whatever the form of the question, special interrogatories and requests for production can be logically connected over subject matter. The takeaway is that lawyers should not silo special interrogatories into a different category from conducting document review to identify responses to requests for production. Answers to both special interrogatories and requests for production can often overlap. Thinking of written discovery holistically can reduce repeating work if special interrogatories and requests for production share common questions.
Upcoming Webinar
I am hosting a webinar for Reveal titled “Connecting the Dots with Written Discovery,” on February 18th at 1:00 pm Pacific that will cover this topic in more detail. If interested in attending, you can register here: https://hubs.la/Q0434Kj_0