skills/document-discovery/references/drafting-patterns.md

# Discovery drafting patterns

These are provider-neutral drafting patterns for a U.S. federal civil matter. They are starting structures, not pre-approved legal positions. Replace every bracketed field, verify the operative district and judge materials, preserve the served text, and obtain counsel's decision before service or transmission. The patterns assume the current federal rules unless a checked order or local rule changes the result.

## Request-design card

Before writing a request, complete this card:

| Field | Drafting question |
| --- | --- |
| Material issue | Which claim, defense, element, affirmative defense, damages issue, or authenticity question does this test? |
| Document family | What document or ESI type is actually needed? |
| Transaction or subject | What named event, agreement, product, account, project, or decision bounds the subject? |
| People | Which custodians, participants, authors, recipients, or decision-makers are justified? |
| Systems | Which repositories or devices are justified, and is a less burdensome source equally useful? |
| Time | What start and end dates fit the issue and the evidence? |
| Form | What usable ESI form, metadata, attachments, versions, or native features are needed? |
| Burden and benefit | What is likely cost, access, volume, duplication, or inaccessibility, and why is the requested scope proportionate? |
| Exclusions | What known duplicative, irrelevant, already-produced, or privileged material is excluded? |
| Authority | Which Rule 26/33/34/36/45 provision, order, local rule, or case supports the design? |

If the answer is “everything,” narrow the issue, event, period, people, system, or document type before drafting. A defined term cannot rescue an unbounded operative request. Put the proportionality rationale in the drafting record unless the governing practice calls for a reason in the instrument.

## Targeted request for production

Use a single document family and a visible boundary. A conventional form is:

```text
REQUEST NO. [__]

For the period [start date] through [end date], produce nonprivileged [document/ESI type] created, received, or maintained by [custodian(s)] in [repository/system], concerning [specific transaction, decision, product, or issue], including attachments and responsive versions. Produce in [requested or agreed ESI form], with reasonably usable metadata [identify only the fields needed].
```

The drafting note should state: `Issue: [claim/defense]. Benefit: [what the material will show]. Boundary: [period/custodian/system/type]. Burden: [known volume, access, cost, duplication, or inaccessibility]. Authority: [receipt IDs].` Do not treat “nonprivileged” as a waiver or as permission to omit a privilege log; it tells the responder how to handle the claim and keeps the request from demanding protected material.

### Before-and-after scope example

Fictional example only:

```text
Weak: Produce all documents concerning the Orion contract.

Bounded: For January 1 through June 30, 2025, produce nonprivileged drafts, approval records, and communications exchanged between the persons who negotiated Schedule 3 of the Orion Services Agreement, concerning the disputed service-level credit in section 3.2, including attachments and final versions, from the contract workspace and those custodians' business mailboxes.
```

The bounded version is still subject to Rule 26(b)(1), Rule 34, the claims and defenses, the actual systems and custodians, and any order. It is not a finding that the request is proportionate in an actual case.

## Itemized Rule 34 response

Use a row per request, or per discrete item/category where the served request contains separable parts. State what is withheld and what will be produced. A transparent pattern is:

```text
REQUEST NO. [__]: [exact served text]

Objection: Responding party objects to [precise words/part] because [specific factual reason tied to reasonable particularity, scope, duplication, burden, privilege, inaccessible ESI, or another checked ground]. The objection does not apply to [remaining portion].

Position: Responsive, nonprivileged materials within [date/custodian/system/document-type boundary] will be produced [or have been produced] in [form] [by the order/stipulated date]. Materials withheld on [specific privilege/work-product ground] will be identified in a log or other treatment required by the governing rule/order. No other responsive materials are being withheld on the stated objection.

Open issue: [precise unresolved point, proposed narrowing, or information needed].
```

Do not write a bare “overbroad, burdensome, vague, and disproportionate” paragraph. Identify which part is affected and why. If only part is objectionable, say what will be permitted. If the request specifies a form that cannot or should not be used, state the intended form and the concrete reason. If the response will produce nothing, explain the scope and whether the reason is no responsive material, privilege, control, proportionality, or an order—not merely “subject to objections.” Some local practices permit a short general orientation, but use it only after checking the governing rule or order and never as a substitute for the itemized rows above.

## Interrogatories

Track the 25-interrogatory default including discrete subparts, any stipulation/order, local sequencing rule, and service/response dates. A conventional item is:

```text
INTERROGATORY NO. [__]

Identify each person with knowledge of [bounded event or issue], stating the person's role, the subject of knowledge, and the date range of the person's involvement.
```

For a contention interrogatory, identify the proposition and the point in the schedule or order at which contention discovery is permitted. A response may answer, object specifically, or state that the investigation is continuing with a concrete supplementation plan. A records-based response under Rule 33(d) must identify the records in enough detail to locate them and provide a reasonable opportunity to examine, audit, or copy them; “see the production” without a usable identification is not the pattern.

## Requests for admission

Separate each matter. Use a short factual, law-to-fact, or genuineness proposition:

```text
REQUEST FOR ADMISSION NO. [__]: Admit that the version of Schedule 3 attached as Exhibit [__] is the version signed by [party] on [date].
```

If the proposition contains multiple facts, split it or make the components explicit. The response should admit, deny, or explain after reasonable inquiry why it cannot truthfully admit or deny, and should fairly address any part that can be admitted. State objections and grounds. Track the 30-day default and any local/order variation; do not silently treat a missed response as conclusively resolved without counsel checking service, extensions, and the court's rules.

## Preserving objections and response dates

Create a date card for every served instrument:

| Field | Record |
| --- | --- |
| Instrument | Type, set, number, and exact text hash or stable file ID |
| Service | Date, method, recipient, and proof supplied |
| Default rule | Rule 33, 34, 36, or 45 timing and response mechanism |
| Modified timing | Stipulation, scheduling order, local rule, or judge order, with receipt |
| Due date | Calculated date and assumptions; flag uncertainty |
| Response | Actual response date, extensions, and supplement history |
| Open waiver question | Specific objection, local practice, and authority still requiring counsel review |

Use specificity and concrete positions to preserve a defensible objection. Do not promise that every defect waives every objection, and do not invent a universal “subject to” rule. Rule 26(e) supplementation, a stipulation, an order, and the jurisdiction's waiver cases may change the analysis. Preserve the instrument and response as supplied; any proposed rewrite must be labeled a draft.

## Proportionality note

Use a six-factor note keyed to Rule 26(b)(1):

```text
Issues: [importance and nature of claims/defenses]
Amount: [amount in controversy, if relevant]
Access: [which party controls the information and alternatives]
Resources: [case-specific resource facts actually known]
Importance: [why this discovery materially resolves an issue]
Burden/benefit: [volume, cost, technical difficulty, duplication, and likely benefit]
Proposed boundary: [specific narrower or phased scope]
Unknowns: [facts counsel must confirm]
```

Do not make proportionality a label, an automatic cost-shifting demand, or a reason to withhold without identifying the affected scope. Do not infer resource facts, amount in controversy, or search burden from a generic case description.

## Meet-and-confer memorialization

Prepare, but do not send, a neutral record in this form:

```text
DISCOVERY CONFERENCE MEMORIAL — DRAFT FOR COUNSEL
Matter/posture: [nonconfidential identifier]
Rule/order checked: [Rule 26(f), 37(a), 26(c), 45, local/judge provisions]
Date, time, medium: [details]
Participants and roles: [details]

Issue 1 — Request No. [__]
Original request/response: [exact text or stable reference]
Requesting position: [concrete scope and reason]
Responding position: [concrete scope and reason]
Burden/benefit facts exchanged: [facts, not conclusions]
Proposed compromise: [precise boundary, form, date, and reservation]
Status: [agreed / unresolved / needs facts / court procedure to verify]

Agreements: [scope, dates, forms, log treatment, preservation steps]
Unresolved issues: [one row per issue]
Next step: [counsel decision or applicable court process; no external action taken]
```

Preserve exact quotations if the court's local rule or judge procedure requires them. A court may require a personal conference, a letter, a pre-motion conference, or a special certification; check before treating an email exchange as sufficient. The skill does not contact opposing counsel or file a motion.

## Subpoena triage card

Use one card per subpoena:

| Field | Question and output |
| --- | --- |
| Classification | Nonparty subpoena or party discovery? Production, testimony, inspection, or mixed? |
| Courts | Issuing court; likely compliance court; witness/document location; transfer issue |
| Contents | Issuer, action, command, topics, documents, ESI form, time/place, compliance date |
| Process | Service, notice/copy to parties, witness fee/mileage, and proof supplied |
| Objection/quash | Earlier of compliance date or 14-day production objection rule, subject to exact Rule 45 and local/order check |
| Burden/geography | 100-mile and other geographic limits, inadequate time, undue burden/expense, inaccessible ESI |
| Protection | Privilege, confidentiality, trade secret, personal information, protective-order need |
| Action queue | Facts and lawyer decision needed; no service, compliance, objection, or motion by this skill |

Never copy a Rule 34 deadline or party-discovery objection into a Rule 45 card without analysis. A nonparty's production review, once authorized and received, belongs in `docreview`; this skill can hand off the card and the unresolved questions.

## Privilege-log human queue

Use a row per potentially withheld item unless an operative rule or order authorizes a comprehensible categorical or grouped format:

| Field | Example placeholder |
| --- | --- |
| Queue ID/source | `PRIV-[n]`; source path or stable production ID |
| Date/type | [date]; email, memo, attachment, message, draft, or oral communication |
| Author/participants | Names and roles; relationship to client/counsel |
| Recipients | To, cc, bcc, and relationships; identify whether nonclient recipients appear |
| Custodian/location | Person, repository, or production unit |
| Subject | Neutral subject description that does not reveal protected substance |
| Claimed protection | Attorney-client, work product, joint/common interest if supported, or unknown |
| Basis facts | Purpose, confidentiality, legal-advice/litigation function, and handling facts |
| Treatment | Withhold, redact, produce nonprivileged portion, or needs more review |
| Log/order | Rule 26(b)(5), local/order field, categorical agreement, or Rule 502(d)/502(e) status |
| Human disposition | Pending; counsel decision and date; no automatic release |

A machine signal is only a queue entry. Counsel must decide whether the communication was for legal advice or litigation preparation, whether confidentiality was maintained, whether waiver or a common-interest theory applies, and whether a redacted or factual portion is discoverable. For an inadvertent-production notice, record the notice and hold the item while counsel applies Rule 26(b)(5)(B), FRE 502, and any Rule 502(d) order; do not return, destroy, sequester, retrieve, or disclose it through this skill.

## Authority-check worksheet

Attach this worksheet to every nontrivial package:

```text
As-of date: [date]
District/judge/circuit: [confirmed or missing]
Current rules retrieved: [FRCP/FRE source IDs and dates]
Local rules retrieved: [source ID/date or gap]
Standing/scheduling/case orders retrieved: [source ID/date or gap]
Binding circuit authority retrieved: [source IDs or gap]
Secondary sources used: [IDs, labeled nonbinding]
Potential amendment/currentness issue: [none or explain]
Unresolved conflict: [source IDs, proposition, and counsel decision needed]
```

If a source is inaccessible, record the retrieval failure and use only what can be verified from an available official source. A secondary summary cannot silently fill a missing primary rule. This ledger is also a coverage receipt: it says what was checked and what was not.

## Do-not-do list

- Do not serve, transmit, file, produce, collect, delete, sequester, return, retrieve, or destroy discovery material.
- Do not contact counsel, a witness, a custodian, or a subpoena recipient.
- Do not turn a proposed request into a served request or change served text without labeling the change.
- Do not use a generic objection, reservation, “subject to” phrase, or proportionality recital in place of a concrete position.
- Do not make a final responsiveness, privilege, waiver, preservation, or spoliation determination automatically.
- Do not treat local or judge-specific practice, a circuit holding, or Sedona guidance as nationwide law.
- Do not absorb international-arbitration Redfern work; hand it to an appropriate arbitration-discovery workflow.