Agency counsel has primary responsibility throughout the course of the litigation to investigate the facts, draft responses to interrogatories, provide written responses to requests for admissions, and provide draft written responses to requests for production of documents, and if appropriate, provide information that may limit the scope of discovery permitted against the agency on proportionality grounds. With respect to information, documents, and discoverable things within the legal possession, custody, or control of the agency, it remains the obligation of agency counsel, in consultation with DOJ, to conduct the inquiry required by Fed. R. Civ. P. 26(g) and to confirm, in writing if requested, that every response is accurate and complete. DOJ will make legal objections; negotiate protective orders, claw-back agreements, and Fed. R. Evid. 502(d) orders where appropriate; edit the draft discovery responses; and serve and file appropriate responses. The agency shall timely provide all documents responsive to any discovery request, including any privileged documents, along with all information required to show the applicability of any privilege it suggests should be asserted. DOJ will take the agency’s position into consideration in making the final determination regarding which privileges, if any, will be asserted.

The agency shall identify a representative who will sign the final interrogatory answers under oath as required by Fed. R. Civ. P. 33(b). Similarly, if requested, the agency will sign the final version of the responses to the requests for admissions, any document request certifications, or declarations and affidavits. There can be more than one agency representative for these purposes, depending on the circumstances. In such circumstances, agency counsel should seek guidance from DOJ. Agency counsel may offer or be asked to draft other pleadings and documents, but they are not required to provide this assistance. Such draft pleadings and other documents may be incorporated in the DOJ final product for filing.

The agency shall make its employees available for consultation, witness preparation, discovery document review, and depositions as needed throughout the course of the litigation. The agency shall provide its position on potential settlement, and attend settlement or mediation conferences if requested. Additionally, if requested, agency counsel may review and make timely comments on any briefs to be filed.

[updated April 2018]