Contention Interrogatories: Not If, But When

In HealthEdge Software, Inc. v. Sharp Health Plan, plaintiff objected on work product grounds to defendant's request that plaintiff produce (among other things) "[a]ll DOCUMENTS upon which [HealthEdge] relies in support of its affirmative defenses set forth in its answer to the [Sharp] counterclaim." Civ. A. No. 19-cv-11020-ADB, 2021 U.S. Dist. LEXIS 88061, at *12 (D. Mass. May 6, 2021) (second and third alterations in original). After acknowledging that HealthEdge must "eventually respond to these requests," the court upheld HealthEdge's objection – pointing to Federal Rule of Civil Procedure 33(a)(2)'s provision allowing the court to "order that such discovery requests not be responded to until later in the litigation."Id. at *12-13. The court then invited defendant Sharp to "renew these requests for production at the close of discovery, at which point HealthEdge shall respond."Id. at *13.

This common sense approach reconciles the competing interests. It also highlights a basic distinction between the attorney-client privilege and the work product doctrine. Lawyers create work product with the intention of eventually disclosing much of it.