Discovery Deficiency Meet-and-Confer Letter - Hawaii

DISCOVERY DEFICIENCY MEET-AND-CONFER LETTER

Hawaii Circuit Court — Pursuant to HRCP Rule 37(a)(2)

[ATTORNEY/FIRM NAME]
[________________________________]
[________________________________]
[City, Hawaii, ZIP]
Phone: [____________________]
Fax: [____________________]
Email: [________________________________]
Hawaii Bar No.: [____________________]

[__/__/____]

VIA [☐ EMAIL ☐ CERTIFIED MAIL ☐ HAND DELIVERY ☐ OVERNIGHT COURIER]

[________________________________]
[Opposing Counsel Name]
[________________________________]
[Law Firm Name]
[________________________________]
[Address Line 1]
[________________________________]
[City, Hawaii, ZIP]

Re: [________________________________] v. [________________________________]
Court: Circuit Court of the [First / Second / Third / Fifth] Circuit, State of Hawaii, Civil No. [________________________________]
Subject: Discovery Deficiency Meet-and-Confer — [☐ Interrogatories ☐ Requests for Production ☐ Requests for Admission ☐ All Discovery Responses]

Dear [________________________________]:

I. PURPOSE OF THIS LETTER

This letter is written pursuant to Hawaii Rules of Civil Procedure Rule 37(a)(2) (HRCP Rule 37(a)(2)), which requires that any motion to compel discovery include "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." This letter constitutes our formal good-faith effort to resolve the discovery deficiencies described herein without court intervention.

We write on behalf of our client, [________________________________] ("[Plaintiff/Defendant]"), regarding deficiencies in [________________________________]'s ("[Responding Party]") discovery responses served on [__/__/____].

II. HAWAII DISCOVERY FRAMEWORK — KEY RULES

A. Response Deadlines

• Interrogatories: 30 days after service; a defendant may serve answers or objections within 45 days after service of the summons and complaint (HRCP Rule 33(b)(3))
• Requests for Production: 30 days after service; a defendant may respond within 45 days after service of the summons and complaint (HRCP Rule 34(b))
• Requests for Admission: 30 days after service; absent a shorter court-set time, a defendant need not respond before 45 days after service of the summons and complaint (HRCP Rule 36(a))

B. Interrogatory Limits

HRCP Rule 33(a) permits up to 60 interrogatories, counting subparts or subquestions as individual questions, without leave of court or written stipulation. In an expedited-track case, HRCP Rule 16.1(c)(1)(B) instead limits each party to a combined total of 35 interrogatories, document requests, and requests for admission, including subparts.

C. Scope of Discovery

HRCP Rule 26(b)(1)(A) permits discovery of nonprivileged matter relevant to the subject matter involved in the action and retains the reasonably-calculated-to-lead-to-admissible-evidence standard. Rule 26(b)(2) separately requires limits when discovery is cumulative or duplicative, more conveniently obtained elsewhere, already adequately explored, or when its burden or expense outweighs its likely benefit.

D. Verification Requirement

Each interrogatory must be answered separately and fully in writing under oath unless objected to. The person making the answers signs them, and the attorney making objections signs the objections. HRCP Rule 33(b)(1)-(2).

E. Privilege Log

When a party withholds otherwise discoverable information as privileged or protected trial-preparation material, HRCP Rule 26(b)(6) requires an express claim and a description of the nature of the withheld documents, communications, or things sufficient for the other parties to assess the claim without disclosure of protected information.

F. ESI and Technology Considerations

Hawaii's discovery rules address ESI. HRCP Rule 34(b) governs production, and HRCP Rule 26(b)(1)(B) addresses sources identified as not reasonably accessible because of undue burden or expense.

G. Discovery Motions — Hearing vs. Non-Hearing

Before preparing a discovery motion, check the current Rules of the Circuit Courts, the assigned judge's procedures, and the scheduling order for hearing, submission, page-limit, declaration, and conferral requirements.

H. Meet-and-Confer Certification

HRCP Rule 37(a)(2) requires that any motion to compel be accompanied by a certification that the movant has in good faith conferred or attempted to confer with the party failing to make discovery in an effort to secure the information without court action. This letter satisfies that requirement, though we remain available for a telephone conference.

I. 2022 Amendments to Hawaii Civil Rules

Effective January 1, 2022, amendments to the Hawaii Rules of Civil Procedure modified certain discovery provisions, including changes related to case track assignments and scheduling. Please verify whether this case has been assigned to an expedited or non-expedited track under HRCP Rule 16.1, as the track assignment may affect discovery scope and scheduling.

J. Sanctions for Discovery Violations

HRCP Rule 37(a)(4): If a motion to compel is granted, or the requested discovery is provided after filing, the court generally requires payment of the movant's reasonable expenses, including attorney's fees, subject to the rule's good-faith-effort, substantial-justification, and unjust-circumstances exceptions.

HRCP Rule 37(b)(2): For failure to comply with a discovery order, the court may:

• Designate facts as established
• Prohibit the disobedient party from supporting or opposing designated claims or defenses
• Strike pleadings in whole or in part
• Stay proceedings until the order is obeyed
• Dismiss the action or render a default judgment
• Treat the failure as contempt of court

III. INTERROGATORY DEFICIENCIES

The following interrogatory responses are deficient under HRCP Rule 33.

Deficiency Checklist — Interrogatories

☐ Incomplete Answer — The response does not fully answer the interrogatory as required by HRCP Rule 33(b)(1). Each interrogatory must be answered separately and fully in writing under oath.

☐ Unsupported Relevance or Burden Objection — State the specific basis for any relevance, cumulative, duplicative, undue-burden, or expense objection under HRCP Rule 26(b)(1)-(2), and answer any unobjectionable portion.

☐ Improper Overbreadth/Undue Burden Objection — No specific showing of overbreadth or undue burden has been made. Please identify specifically what makes the interrogatory objectionable and provide a complete response to any unobjectionable portion.

☐ Improper Vagueness Objection — The interrogatory is reasonably clear. Please respond based on a good-faith interpretation of the question.

☐ No Verification — Interrogatory responses are not signed under oath by the person making the answers as required by HRCP Rule 33(b)(1)-(2). Please provide a proper verification.

☐ Failure to Supplement — HRCP Rule 26(e) imposes a continuing duty to supplement responses. Please supplement immediately with any additional responsive information.

☐ Boilerplate Objections — Multiple boilerplate objections are stated without application to the specific interrogatory. Hawaii courts disfavor such non-particularized objections.

☐ Improper Reference to Documents — The response attempts to answer by referencing documents without adequate specificity. HRCP Rule 33(d) permits this practice only where the burden of ascertaining the answer is substantially equal for both parties and specific records are clearly identified.

☐ Exceeded Interrogatory Limit — More than 60 interrogatories, counting subparts or subquestions individually, were served without leave or written stipulation under HRCP Rule 33(a), or the combined expedited-track limit in Rule 16.1(c)(1)(B) was exceeded.

Specific Interrogatory Deficiencies

IV. REQUEST FOR PRODUCTION DEFICIENCIES

The following Requests for Production responses are deficient under HRCP Rule 34.

Deficiency Checklist — Requests for Production

☐ Blanket Objections Without Response — Responding party has asserted blanket objections without producing any responsive documents. HRCP Rule 34(b) requires the reasons for each objection and a response to the portion of an item or category that is not objectionable.

☐ Inadequate Privilege Description — Documents appear to have been withheld without the express claim and sufficient description required by HRCP Rule 26(b)(6). Please identify the withheld material sufficiently to permit assessment of the claim without revealing protected information.

☐ Incomplete Production — Based on [________________________________], additional responsive documents exist that were not produced. Please confirm the completeness of the production or supplement.

☐ Unclear Production Timing — The response does not identify when inspection or production will occur. Please confirm a reasonable production date of [__/__/____] or propose another date.

☐ Improper Format — Documents or ESI were not produced in the requested form or, if no form was specified, in the form ordinarily maintained or a reasonably usable form under HRCP Rule 34(d). Please reproduce in [☐ native format ☐ reasonably usable form ☐ other: ________________________________].

☐ ESI Issues — The request encompasses ESI. Please describe the search methodology used, including custodians, date ranges, and search terms. If any source is claimed to be not reasonably accessible due to undue burden or expense, identify it with specificity under HRCP Rule 26(b)(1)(B).

☐ Documents Not Organized by Request — Produced documents are not organized to correspond to the categories in the request or produced as kept in the ordinary course of business.

Specific RFP Deficiencies

V. REQUEST FOR ADMISSION DEFICIENCIES

The following Requests for Admission responses are deficient under HRCP Rule 36.

Deficiency Checklist — Requests for Admission

☐ Evasive Denial — The response does not fairly meet the substance of the matter as required by HRCP Rule 36(a). A denial must specifically address the substance of the matter requested.

☐ Improper Objection — The objection lacks legal basis under HRCP Rule 36. Please withdraw the objection and provide a substantive response, or identify specific authority for the objection.

☐ Qualified Response Without Specification — HRCP Rule 36(a) requires a qualified response to specify so much as is true and qualify or deny the remainder. The qualification provided does not meet this standard.

☐ Insufficient Claim of Lack of Information — A denial based on lack of information must be accompanied by a statement that a "reasonable inquiry" was made and that information known or reasonably obtainable is insufficient. No such statement was provided.

☐ Untimely Response — Potential Deemed Admission — Requests were served on [__/__/____] and responses were due by [__/__/____]. Under HRCP Rule 36(a), each matter is admitted unless a timely written answer or objection is served, subject to the court's authority and any written agreement allowed by the rule.

Specific RFA Deficiencies

VI. PRIVILEGE LOG DEFICIENCIES

Pursuant to HRCP Rule 26(b)(6), a party withholding otherwise discoverable information must expressly make the claim and describe the nature of the withheld material sufficiently to permit assessment without revealing protected information. Use the following log fields when they are appropriate to satisfy that standard:

☐ Date of each withheld document or communication
☐ Author(s) and all recipients, including cc and bcc
☐ General subject matter without disclosing privileged content
☐ Privilege or protection asserted (attorney-client, work product, etc.)
☐ Whether any redacted version can be produced

Current status of privilege log: [________________________________]

Required action: Please provide a complete privilege log by [__/__/____].

VII. CASE TRACK AND SCHEDULING CONSIDERATIONS

Note on Case Tracks: Under HRCP Rule 16.1, Hawaii Circuit Court cases are assigned to tracks (expedited or non-expedited) that affect discovery scheduling. Please confirm the current track assignment for this case and whether any track-specific discovery limitations apply:

☐ Case Track Assignment: [________________________________]
☐ Fact Discovery Deadline: [__/__/____]
☐ Expert Designation Deadline: [__/__/____]
☐ Trial Date: [__/__/____]

VIII. DEMAND FOR SUPPLEMENTATION AND DEADLINE

We demand that [Responding Party] serve complete, verified, and rule-compliant supplemental responses to all deficiencies identified in this letter no later than:

SUPPLEMENTATION DEADLINE: [__/__/____]

Failure to provide complete supplemental responses by this deadline may result in a Motion to Compel pursuant to HRCP Rule 37(a), accompanied by the required good-faith certification and a request for expenses under HRCP Rule 37(a)(4).

IX. MEET-AND-CONFER AVAILABILITY

We remain willing to confer telephonically or in person to discuss these deficiencies in good faith, as contemplated by HRCP Rule 37(a)(2). Hawaii courts expect genuine cooperative efforts to resolve discovery disputes before seeking judicial intervention.

We are available at the following times (Hawaii-Aleutian Standard Time — note Hawaii does not observe Daylight Saving Time):

• [________________________________] (Date/Time)
• [________________________________] (Date/Time)
• [________________________________] (Date/Time)

Please contact the undersigned by [__/__/____]. If we do not hear from you by that date, we will proceed to file the appropriate motion.

X. DISCOVERY MOTION PROCEDURE

Before filing, counsel will determine the motion procedure from the current circuit rules, assigned judge's procedures, and scheduling order. Proposed procedure or hearing date: [________________________________].

XI. SANCTIONS WARNING

HRCP Rule 37(a)(4) governs expenses on a motion to compel and includes exceptions for the movant's failure to make the required good-faith effort, substantial justification, and circumstances making an award unjust. HRCP Rule 37(b)(2) authorizes orders addressing failure to obey a discovery order, including evidentiary preclusion, striking pleadings, dismissal, or default when the rule's conditions are met.

Any requested sanction must be tied to the actual conduct, procedural posture, and relief authorized by the current rules and court orders.

XII. LITIGATION HOLD REMINDER

Please confirm that [Responding Party] has implemented and is maintaining a litigation hold covering all potentially relevant documents and ESI, including emails, text messages, shared drives, cloud storage, and documents in the custody of third parties under the responding party's control. Failure to preserve relevant information may result in sanctions for spoliation of evidence.

XIII. CLOSING

This letter represents our good-faith attempt to resolve these discovery disputes without court intervention. We look forward to your prompt written response no later than [__/__/____].

Sincerely,

[________________________________]
[Attorney Name]
[________________________________]
[Law Firm Name]
Counsel for [________________________________]
[Plaintiff/Defendant]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Discovery Deficiency Meet-and-Confer Letter was served upon the following counsel of record by the method indicated:

[________________________________]
[Opposing Counsel Name and Address]

☐ Email
☐ U.S. Mail, postage prepaid
☐ Hand Delivery
☐ Overnight Courier
☐ Hawaii eCourt (if available)

[________________________________]
[Serving Attorney Name]

Sources and References:

• Hawaii Rules of Civil Procedure: https://www.courts.state.hi.us/wp-content/uploads/2024/09/hrcp_ada.pdf
• HRCP Rule 26 — General Provisions Governing Discovery
• HRCP Rule 33, 34, 36, 37
• HRCP Rule 37(a)(2) — Good Faith Certification Requirement
• Rules of the Circuit Courts of the State of Hawaii: https://www.courts.state.hi.us/wp-content/uploads/2025/01/rcch.htm
• Order Amending Hawaii Rules of Civil Procedure (2022)