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 begins our good-faith effort to resolve the discovery deficiencies described below without court intervention. HRCP Rule 37(a)(2) requires a motion to compel to include a certification that the movant has conferred or attempted to confer in good faith with the person or party failing to make discovery.

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))

Rule 6(e) adds two days to a period measured from service of a discovery request by mail. Apply any court order or written agreement permitted by Rule 29 when calculating the actual deadline.

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

HRCP Rule 34(a) permits requests for electronically stored information, Rule 34(d) governs production form, and 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 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 a motion to compel to include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery. Document this letter and any follow-up conversation or attempted conference before making that certification. We remain available for a telephone conference.

I. Expedited-Track Assignment

Rule 16.1(a) permits the court, on party agreement, to designate a qualifying case for the expedited track in a Rule 16(b) scheduling order. Check the order and any Rule 16.1(c) discovery limits before calculating available discovery.

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 Amend a Materially Incomplete or Incorrect Response — Identify the response and the information triggering Rule 26(e)(2)'s duty to amend: [____________]. Please provide the required amendment by [DATE].

☐ Non-Specific Objections — The stated grounds do not identify the basis for objection to the particular interrogatory as Rule 33(b)(4) requires. Please state all grounds with specificity and answer any unobjectionable portion.

☐ 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.

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 — Identify the form requested, any form objection, and the actual form produced: [____________]. Rule 34(d) governs the response to an objection and, when no form was specified, production in the ordinarily maintained or a reasonably usable form. Please provide a form permitted by the rule: [____________].

☐ ESI Issues — Identify the missing responsive ESI and why the response appears incomplete: [____________]. If You assert that a source is not reasonably accessible because of undue burden or expense, identify that source; Rule 26(b)(1)(B) supplies the procedure for resolving that claim.

☐ 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.

☐ Unexplained Objection — Rule 36(a) requires an objection to state its reasons. Please explain the objection to Request No. [____] or serve an answer.

☐ 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 — Rule 36(a) requires a statement that reasonable inquiry was made and that information known or readily obtainable is insufficient to admit or deny. No such statement was provided.

☐ Untimely Response — Potential Deemed Admission — Requests were served on [__/__/____] by [METHOD], and responses were due by [__/__/____] after applying Rule 36(a), any Rule 29 agreement or court order, and Rule 6(e) if service was by mail. Under Rule 36(a), each matter is admitted absent a timely written answer or objection, subject to Rule 36(b)'s withdrawal or amendment procedure.

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: [________________________________]

Requested action: Please provide an express privilege claim and an assessable description under Rule 26(b)(6) by [__/__/____]; use the listed fields where they help without disclosing protected information.

VII. CASE TRACK AND SCHEDULING CONSIDERATIONS

Note on Case Tracks: Under Rule 16.1(a), the court may designate a qualifying case for the expedited track in its scheduling order. Please confirm whether this case has that designation and which discovery limits apply:

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

VIII. DEMAND FOR SUPPLEMENTATION AND DEADLINE

We request corrected, rule-compliant responses to the identified deficiencies by the date below. Interrogatory answers must be under oath and signed by the answerer under Rule 33(b)(1)-(2); Rule 36(a) governs admission answers and objections.

SUPPLEMENTATION DEADLINE: [__/__/____]

If the dispute remains, we may seek a Rule 37(a) order for unanswered interrogatories or production requests, or a Rule 36(a) determination of the sufficiency of admission answers or objections, with any available expenses subject to the applicable rule and good-faith conference requirement.

IX. MEET-AND-CONFER AVAILABILITY

We remain willing to confer by telephone or in person to discuss these deficiencies in good faith, as Rule 37(a)(2) contemplates before a motion to compel.

We are available at the following times (Hawaii-Aleutian Standard 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 applicable court procedures and the 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 identify what steps [Responding Party] has taken to preserve relevant documents and ESI within its possession, custody, or control, including email, text messages, shared drives, and cloud storage. Identify any responsive material that is no longer available and the known reason.

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.htm
• HRCP Rule 26 — General Provisions Governing Discovery
• HRCP Rule 33, 34, 36, 37
• HRCP Rule 37(a)(2) — Good Faith Certification Requirement