How to Audit Discovery Responses in a Section 1983 Case
Thirty days after you served your requests, a thick envelope arrives. Most of it is objections. Some documents are attached. Nothing is labeled. Your first instinct is to write an angry letter about everything.
Do not. Audit first. A request-by-request audit turns a pile of paper into a list of specific deficiencies with specific cures, which is the only thing a court will enforce.
After reading this article, you should be able to:
- classify every response into one of four statuses
- separate an objection from an answer and evaluate each on its own
- state the concrete deficiency and the cure the rules require
- carry the audit into a meet-and-confer letter and, if needed, a motion to compel
Read this with the process step on discovery and the sample meet-and-confer letter.
Build the audit table
One row per request. Columns:
| Request | Target (claim, defendant, element) | Exact response text | Objections | Produced | Withheld | Status | Deficiency | Cure |
|---|
Copy the response text exactly. Paraphrasing a response is how you end up arguing about something the defendants did not say.
The target column comes from the target map you built before serving, the claim, defendant, and element each request was meant to close. If you did not build one, build it now. It tells you which deficiencies matter.
Four statuses
Assign each request exactly one:
Not produced. The response admits responsive material exists, or does not deny it, and nothing was produced. This includes “will produce” with nothing attached and no date.
Claimed nonexistent. The response states that no responsive material exists, or that a reasonable search found none. Note whether the response describes the search. A bare “none” after a request for body-camera footage from an officer who wears a camera invites a follow-up interrogatory about the search.
Withheld. The response admits responsive material exists and states it is being withheld, on an objection or a privilege. Rule 34(b)(2)(C) requires an objection to say whether anything is being withheld on its basis. If material is withheld as privileged, a privilege log is required.
Unclear. The response objects, or refers you elsewhere, without saying whether anything exists, whether a search was done, whether anything was produced, or whether anything was withheld. Most boilerplate responses land here. “Unclear” is not a finding that the defendants are hiding something. It is a finding that they have not told you, and the cure is to make them say.
Evaluate the objection and the answer separately
Many responses object and then answer “subject to and without waiving” the objection. Treat those as two things.
The objection. Under Rule 33(b)(4), an interrogatory objection must be stated with specificity, and grounds not timely stated are waived. Under Rule 34(b)(2)(B) and (C), a production objection must state with specificity the grounds and whether responsive material is being withheld. “Overbroad, unduly burdensome, vague, and not proportional” with nothing more is not specific. Record it as a boilerplate objection and put “state the specific ground and whether material is withheld” in the cure column.
The answer. Read what was actually said or produced as if the objection did not exist. Is it complete? Does it answer the question asked, or a narrower one? “See the body-camera footage” is not an answer to “state every fact supporting your contention that Plaintiff resisted.” Record the gap.
A partial answer plus a boilerplate objection is the most common response you will get. It has two deficiencies, and the cure for each is different.
Things silence does not prove
- Silence does not establish that a document exists.
- Silence does not establish that it does not exist.
- Silence does not establish that anything was withheld.
- Silence does not establish waiver, though an untimely objection may be waived under Rule 33(b)(4).
Write what the response says and does not say. Do not fill the gaps with inference. The cure for silence is a demand that the defendants state the fact.
Common deficiencies and their cures
| Deficiency | Cure to demand |
|---|---|
| Boilerplate objection, no specifics | State the specific ground for each objection and whether any material is withheld on its basis. Rule 34(b)(2)(C). |
| Objection without stating whether material is withheld | State whether responsive material is being withheld. Rule 34(b)(2)(C). |
| ”Will produce” with no date | State the date of production. Rule 34(b)(2)(B) requires a reasonable time. |
| Privilege asserted, no log | Serve a log compliant with Rule 26(b)(5)(A) and the local rules. |
| ”None” with no description of the search | Describe the search: custodians, systems, date ranges, and terms. |
| Answer refers to documents instead of stating facts | Answer the interrogatory in words. Rule 33(d) permits reference to records only under its conditions. |
| Answer narrower than the request | Answer the request as written, or state the specific objection to the part not answered. |
| Response not signed or verified | Interrogatory answers must be signed under oath by the party. Rule 33(b)(3), (5). Objections signed by counsel. |
| Production not organized or labeled | Produce as kept in the usual course or organized and labeled to correspond to the requests. Rule 34(b)(2)(E)(i). |
| Video produced as an excerpt | Produce the complete recording from each camera, with metadata, in native format. |
What the audit is not
The audit records what the responses say and identifies the gap between that and what the rules require. It does not decide whether an objection is valid. It does not declare waiver. It does not decide whether to accept a partial answer, narrow a request, confer, move to compel, or seek fees. Those are your decisions, and you make them after the audit, request by request.
For each row, your options are usually:
- accept the response as sufficient
- accept a narrowed version and say so in writing
- demand the cure by a date
- move to compel after the conference
Write down which you chose and why. That record is what you will need if the dispute reaches the court.
From audit to letter to motion
The audit feeds the meet-and-confer letter directly. Each deficient row becomes one numbered item: the request, the response, the deficiency, the rule, the cure, and a date.
If the defendants cure, update the table. If they do not, the same table becomes the exhibit to your motion to compel under Rule 37(a). Courts appreciate a motion that shows, request by request, what was asked, what was said, what the rule requires, and what the conference produced. They do not appreciate a motion that says the defendants are stonewalling.
Check Your Understanding
-
The response to your request for all body-camera video says: “Objection, overbroad and unduly burdensome. Subject to and without waiving, see the video produced as Exhibit 1.” Exhibit 1 is a 90-second clip. What are the deficiencies?
Show answer
Two. The objection is boilerplate and does not state whether material is withheld on its basis, contrary to Rule 34(b)(2)(C). The answer is incomplete: a 90-second excerpt does not respond to a request for all video. The cures are a specific objection with a withholding statement, and production of the complete recordings from every camera. -
The response to your interrogatory asking for every fact supporting the resistance defense says “See incident report and body-camera video.” Is that an answer?
Show answer
No. An interrogatory must be answered in words. Rule 33(d) allows referring to business records only when the answer can be derived from them and the burden is the same for both sides, and it requires specifying the records in enough detail to locate the answer. Demand a written answer stating the facts. -
The response says “no documents exist” for your request for use-of-force reports. What do you record, and what do you do?
Show answer
Record the status as "claimed nonexistent" and note whether the response describes any search. Do not record it as a lie or as withholding. The cure is a demand to describe the search performed, and a follow-up interrogatory asking whether department policy required a use-of-force report for this incident and, if so, why none was created.