The RFA Deadline, the Supplemental Record, and the Backdated Verification
Oakline Legal Group represents plaintiff Theodora Marsh in a state-court auto-collision case. The complaint was filed eleven months ago; the defendant answered nine months ago. The court’s scheduling order set discovery cutoff for March 15, a final pretrial conference on June 2, and trial on June 16. On March 10, a paralegal, Ben, receives a supplemental medical record showing that Marsh attended physical therapy for six weeks longer than she stated in an interrogatory answer verified in January. Plaintiff’s responses to the defendant’s requests for admission are due Monday, March 13, at 5:00 p.m. Ben also finds an email from defense counsel dated March 8 requesting a meet-and-confer about “inconsistent discovery responses” and threatening a motion to compel. The supervising attorney is out of the office until March 14. Marsh calls and says, “Just fix the answers; I don’t want to look like a liar,” and asks Ben to change the date on the verification.
1. Identify the immediate deadlines and risks, and explain what Ben may and may not do before the attorney returns.
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Immediate risks:
- RFAs due Monday. Under the applicable rule (typically modeled on Rule 36), failure to respond timely can be deemed an admission. That is a substantive disaster and may be hard to withdraw.
- Attorney unavailable. Ben must escalate to another attorney now, not wait until March 14.
- Inconsistent interrogatory answer. The new record triggers a duty to supplement or correct under Rule 26(e) or its state analog. The January verification cannot be altered.
- Meet-and-confer email. It is a deadline-bearing communication; acknowledge it and route it to the attorney.
Ben may: calendar all dates; prepare a draft RFA response and a draft supplemental interrogatory answer; gather the therapy records; issue a litigation hold; and ask the attorney to approve a short extension request. He may not sign discovery, make legal representations, or serve anything without attorney review.
2. What should Ben do about the inconsistent interrogatory answer and the meet-and-confer email?
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The correction must be made honestly. Ben should:
- Pull the January interrogatory answer and compare it line by line with the therapy records; identify exactly what was inaccurate and why.
- Prepare a supplemental response that corrects the earlier answer and provides the additional dates, subject to attorney review. Do not simply replace the old verification or change its date.
- Preserve the records and the client’s communications; do not delete or alter metadata.
- Route the meet-and-confer email to the attorney and propose a call date. Ben may acknowledge receipt but should not argue the merits or admit sanctionable conduct.
- Warn the attorney that the discrepancy may support a motion to compel, an evidence sanction, or an attack on credibility, and that the firm may need to disclose the correction promptly to avoid prejudice.
- Tell the client the attorney will discuss the correction; do not coach her to characterize it as a clerical error unless that is true.
3. Marsh asks Ben to change the verification date. What should Ben say and do?
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Ben should not change the date or help create a false verification. He can say: ‘I can’t alter a sworn verification or backdate a document. That could be perjury or a discovery sanction. I will tell your attorney what you said and prepare a supplemental correction for review.’
If Maria insists, Ben should end the call politely, document it, and report it to the supervising attorney and, if necessary, another firm attorney. The firm must avoid client perjury or false evidence and may need to withdraw if the client insists on fraud. Ben should not give legal advice about the consequences beyond explaining firm policy and the need for attorney review. He should preserve the original documents and not send the client a draft verification with a blank date.