COVID-19 Update: How We Are Serving and Protecting Our Clients

Seven Reasons To Serve Discovery With Your Complaint

The Tennessee Rules of Civil Procedure permit a Tennessee personal injury or wrongful death plaintiff to serve discovery with a complaint.  Ordinarily, responses to interrogatories, requests for production of documents, and requests for admissions are due 30 days after service.  However, if they are served with the complaint the defendant has an additional 15 days to respond to them.

Why do you want to serve discovery with the complaint?

  1.  Why not get the litigation started?  You are going to serve discovery sooner or later – or you at least you should.  Usually there is no reason not to get the process started early.
  2. Early discovery will allow you to determine whether an individual defendant was on the business of another person or entity at the time of the incident, giving you the opportunity to add a vicarious liability defendant to the case if you filed suit well before the expiration of the statute of limitations.
  3. Early discovery will let you know if there is a witness you to the incident that you were previously unaware of, letting you determine whether you should talk to the witness informally or take his or her deposition early in the case.
  4. Early discovery will help you identify the basis for a defendant’s request to allocate fault to a nonparty.  This is especially helpful in federal court, where a defendant need not plead comparative fault with the particularity required by Rule 8.03 of the federal rules of civil procedure.   Thus, you need this information to make an informed decision about whether you should file suit against the nonparty, taking advantage of the 90-day extension of the statute of limitations typically allowed under Tenn. Code Ann. Sec. 20-1-119.
  5. The right questions will flush out the basis for any other affirmative defenses, such as those challenging sufficiency of process or sufficiency of service of process.  Thus, you can correct any alleged deficiency before you lose the ability to correct it.
  6. The right questions will help you see the defendant’s photographs, documents, etc. early in the case, which will help you draft your discovery plan earlier.
  7. Serving discovery early allows any squabbles over discovery to be worked out early, which means you can schedule depositions earlier (and keep the dates).

My view is this:  discovery should be sent with the complaint in every case unless you can articulate a reason why it should not be sent.