By Rogge Dunn and Trey Cox

Triple-Threat Discovery Forms

Excerpted from Triple-Threat Discovery Forms

Editor’s Note: This form contains triple-threat discovery for a breach of contract case. Use this form in conjunction with Form 4:10, Plaintiff’s Triple-Threat for All Commercial Cases, which contains Instructions, Definitions, and discovery requests common to all commercial cases.

FORM 4:20  PLAINTIFF’S TRIPLE-THREAT: BREACH OF CONTRACT

INTERROGATORIES

CONTRACTS

INTERROGATORY NO. 1: Describe in detail the services you requested from Plaintiff.

RESPONSE:

INTERROGATORY NO. 2: Identify all agreements and/or contracts, including any modifications thereof, between Plaintiff and Defendant.

RESPONSE:

INTERROGATORY NO. 3: If you contend the Contract is not valid or enforceable, describe in detail the factual and legal basis for this contention.

RESPONSE:

BREACH

INTERROGATORY NO. 4: Describe in detail why Defendant has not performed as required by the Contract and alleged in the Petition at paragraph __.

RESPONSE:

INTERROGATORY NO. 5: If Defendant contends that its breaches of the Contract as alleged in the Petition at paragraph __ are excused for any reason, describe in detail the factual and legal basis for this contention.

RESPONSE:

INTERROGATORY NO. 6: Did Defendant receive the services identified in the previous interrogatory? If your answer is other than an unqualified “yes,” state what was received, and specifically how the services received differed from those requested.

RESPONSE:

INTERROGATORY NO. 7: Describe in detail the business relationship between Plaintiff and Defendant.

RESPONSE:

PERFORMANCE

INTERROGATORY NO. 8: If Defendant contends that it has fulfilled its obligations under the Contract, describe in detail the performance or tendered performance.

RESPONSE:

INTERROGATORY NO. 9: If Defendant contends that Plaintiff’s performance under the Contract was otherwise deficient, describe in detail all facts supporting this contention.

RESPONSE:

INTERROGATORY NO. 10: Identify any reason you contend that Defendant does not owe the debt alleged by Plaintiff.

RESPONSE:

INTERROGATORY NO. 11: Did Defendant notify Plaintiff of any reason why Defendant should not pay the debt? If so, identify all such communication(s).

RESPONSE:

DAMAGES

INTERROGATORY NO. 12: Identify the amount, if any, which Defendant admits is owed to Plaintiff and the calculation used to determine the amount.

RESPONSE:

INTERROGATORY NO. 13: Identify the amount, if any, of the damages alleged by the Plaintiff that Defendant challenges or disputes.

RESPONSE:

INTERROGATORY NO. 14: Identify each of Plaintiff’s invoices that Defendant asserts is not due and owing, and for each claim identified, specifically state the reason(s) for disputing payment.

RESPONSE:

INTERROGATORY NO. 15: Identify each payment amount Defendant asserts was not properly offset or applied to its account, and for each claim identified, specifically state the amount of any offset that allegedly should have been applied as well as the reason such offset should apply.

RESPONSE:

AFFIRMATIVE DEFENSES

INTERROGATORY NO. 16: Identify each affirmative defense that Defendant intends to raise in this Lawsuit, and for each defense, please describe the factual and legal bases for that defense.

RESPONSE:

INTERROGATORY NO. 17: If it is Defendant’s contention that it is not obligated to pay Plaintiff, describe in detail the factual and legal basis for this contention.

RESPONSE:

INTERROGATORY NO. 18: If Defendant contends failure of a consideration is a defense to enforcement of the Contract, describe the legal theories and factual basis for that contention.

RESPONSE:

INTERROGATORY NO. 19: Describe in detail any aspect of the Contract you contend is ambiguous.

RESPONSE:

INTERROGATORY NO. 20: If Defendant contends the Contract was illegal, describe in detail the factual and legal basis for that contention.

RESPONSE:

INTERROGATORY NO. 21: If Defendant contends the Contract is unenforceable due to the statute of frauds, describe in detail the factual and legal basis for that contention.

RESPONSE:

INTERROGATORY NO. 22: If Defendant contends the Contract is unenforceable due to impossibility, describe in detail the factual and legal basis for that contention.

RESPONSE:

INTERROGATORY NO. 23: If Defendant contends the Contract is unenforceable by virtue of mistake, describe in detail the factual and legal basis for that contention.

RESPONSE:

ADMISSIONS

CONTRACT

REQUEST NO. 1: Admit that Defendant never cancelled the Contract.

RESPONSE:

REQUEST NO. 2: Admit that Defendant could have cancelled the Contract at any time.

RESPONSE:

REQUEST NO. 3: Admit that Exhibit __ is a true and correct copy of the purchase orders that Plaintiff issued to Defendant.

RESPONSE:

REQUEST NO. 4: Admit that on [date], [contract signatory] was authorized to execute the Contract on behalf of Defendant.

RESPONSE:

REQUEST NO. 5: Admit that on [date], [contract signatory] was not authorized to execute the Contract on behalf of Defendant.

RESPONSE:

REQUEST NO. 6: Admit that Exhibit __ is a true and correct copy of the Contract.

RESPONSE:

REQUEST NO. 7: Admit that the Contract is valid and enforceable.

RESPONSE:

REQUEST NO. 8: Admit Defendant accepted the goods or services provided by Plaintiff.

RESPONSE:

REQUEST NO. 9: Admit that an authorized representative of Defendant executed the Contract.

RESPONSE:

REQUEST NO. 10: Admit that a representative of Defendant read the Contract before Defendant executed it.

RESPONSE:

REQUEST NO. 11: Admit that the Contract contains a merger clause that precludes the reliance on oral statements made prior to the execution of the Contract.

RESPONSE:

REQUEST NO. 12: Admit that the Contract contains a merger clause that precludes the reliance on written matter exchanged prior to the execution of the Contract.

RESPONSE:

AFFIRMATIVE DEFENSES

REQUEST NO. 13: Admit that Defendant was never prevented from performing due to any governmental action or regulation.

RESPONSE:

PERFORMANCE

REQUEST NO. 14: Admit that Defendant did not perform its obligations under the Contract.

RESPONSE:

REQUEST NO. 15: Admit that Plaintiff performed its obligations under the Contract.

RESPONSE:

REQUEST NO. 16: Admit that in consideration of Plaintiff’s performance, Defendant became obligated to pay Plaintiff interest in the event Defendant made late payment or defaulted on payment.

RESPONSE:

REQUEST NO. 17: Admit that in consideration of Plaintiff’s performance, Defendant became obligated to pay Plaintiff a total of [amount owed], plus interest.

RESPONSE:

REQUEST NO. 18: Admit that Defendant failed or refused to pay some part of the [amount owed], plus interest that remains outstanding.

RESPONSE:

REQUEST NO. 19: Admit that Defendant failed or refused to pay all of the [amount owed], plus interest that remains outstanding.

RESPONSE:

REQUEST NO. 20: Admit that the goods or services provided by Plaintiff reflected in Exhibit __ were made at the request of Defendant.

RESPONSE:

REQUEST NO. 21: Admit that it was Plaintiff’s regular course of business to provide the services or deliver the goods reflected in Exhibit__.

RESPONSE:

REQUEST NO. 22: Admit that the sum Plaintiff charged for the goods and services provided to Defendant were a customary, reasonable amount.

RESPONSE:

REQUEST NO. 23: Admit that, during the term of Contract, Plaintiff fully and continuously performed its contractual obligations to Defendant.

RESPONSE:

REQUEST NO. 24: Admit that Defendant never expressed to Plaintiff that Defendant was unhappy, dissatisfied or said anything to the effect that Plaintiff performance was bad.

RESPONSE:

REQUEST NO. 25: Admit that Defendant failed to pay monthly invoices and charges for services rendered within thirty (30) days of receipt of invoice.

RESPONSE:

REQUEST NO. 26: Admit that Plaintiff performed its obligations under the Contract.

RESPONSE:

REQUEST NO. 27: Admit that Defendant requested the goods and services delivered by Plaintiff.

RESPONSE:

REQUEST NO. 28: Admit that Defendant accepted the goods and services delivered by Plaintiff.

RESPONSE:

REQUEST NO. 29: Admit that Defendant made no objection or complaint to Plaintiff after receiving the statement/invoice attached hereto as Exhibit __.

RESPONSE:

REQUEST NO. 30: Admit that Defendant never revoked acceptance of the goods and services delivered to Defendant by Plaintiff.

RESPONSE:

REQUEST NO. 31: Admit that Plaintiff has performed all conditions precedent, if any, to Defendant’s performance required under the Contract.

RESPONSE:

REQUEST NO. 32: Admit that Defendant never repudiated the Contract.

RESPONSE:

REQUEST NO. 33: Admit that Plaintiff never waived Defendant’s performance under the Contract.

RESPONSE:

REQUEST NO. 34: Admit that you made no written complaint to Plaintiff regarding Plaintiff’s performance under the Contract.

RESPONSE:

OTHER SIMILAR SUITS

REQUEST NO. 35: Admit that, in the last five years, Defendant has been involved in contract dispute litigation with at least one other supplier.

RESPONSE:

REQUEST NO. 36: Admit that, in the last five years, Defendant has not been involved in any contract dispute litigation with any other supplier.

RESPONSE:

DAMAGES

REQUEST NO. 37: Admit that the amount Plaintiff has alleged it suffered in damages is correct.

RESPONSE:

REQUEST NO. 38: Admit that Plaintiff has been damaged by Defendant’s breach in the amount of [amount owed], plus interest.

RESPONSE:

DEMAND

REQUEST NO. 39: Admit that Plaintiff made written demand to Defendant for [the amount owed].

RESPONSE:

REQUEST NO. 40: Admit that Plaintiff made written demand to Defendant for payment of the [amount owed] plus interest.

RESPONSE:

REQUEST NO. 41: Admit that despite Plaintiff’s written demand for payment, Defendant failed or refused to pay the amount demanded.

RESPONSE:

REQUEST NO. 42: Admit that after written demand from Plaintiff for payment, Defendant did not pay for the goods and services reflected in Exhibit __.

RESPONSE:

REQUEST NO. 43: Admit that Plaintiff sent Defendant written notice and demand alleging that Defendant had breached the Contract.

RESPONSE:

REQUEST NO. 44: Admit that over thirty (30) days prior to the filing of the Lawsuit, Plaintiff presented to Defendant a written claim for payment of the amount owed to Plaintiff.

RESPONSE:

REQUEST NO. 45: Admit that upon receiving written demand for payment from Plaintiff, Defendant made no objection, complaint or any other communication to Plaintiff as to why Defendant should not pay.

RESPONSE:

REQUEST NO. 46: Admit that over thirty (30) days prior to the filing of the Lawsuit, Plaintiff presented to Defendant an oral claim for amounts alleged in paragraph __ of the Petition.          

RESPONSE:

REQUEST NO. 47: Admit that upon receiving oral demand for payment of the account from Plaintiff, Defendant made no objection, complaint or any other communication to Plaintiff as to why Defendant should not pay this account.

RESPONSE:

REQUEST NO. 48: Admit that Exhibit __ is a demand letter.

RESPONSE:

REQUEST NO. 49: Admit that Exhibit __ constitutes presentment.

RESPONSE:

BREACH

REQUEST NO. 50: Admit that Defendant has breached the Contract.

RESPONSE:

REQUEST NO. 51: Admit that Defendant has breached the Contract by failing to pay the[amount owed].

RESPONSE:

REQUEST NO. 52: Admit that Defendant’s breach of the Contract was material.

RESPONSE:

REQUEST NO. 53: Admit that the failure to pay for goods and services under the Contract constitutes a material breach.

RESPONSE:

REQUEST NO. 54: Admit that Plaintiff has not breached the Contract.

RESPONSE:

REQUEST NO. 55: Admit that Plaintiff has not materially breached the Contract.

RESPONSE:

REQUESTS FOR PRODUCTION

PARTIES’ COMMUNICATIONS

REQUEST FOR PRODUCTION NO. 1:All documents relating to or reflecting any communications between Plaintiff and Defendant to the effect that Plaintiff was not performing.

RESPONSE:

REQUEST FOR PRODUCTION NO. 2:All documents related to any invoices issued to Defendant from Plaintiff.

RESPONSE:

REQUEST FOR PRODUCTION NO. 3:All documents relating to any objection you made to any invoice sent to you by Plaintiff.

RESPONSE:

REQUEST FOR PRODUCTION NO. 4:All written demands from Plaintiff to you for payments sought in the Lawsuit.

RESPONSE:

REQUEST FOR PRODUCTION NO. 5:Letters and faxes received by Defendant, requesting payment for the amounts alleged to be owed in the Lawsuit.

RESPONSE:

REQUEST FOR PRODUCTION NO. 6: Defendant’s letters and faxes responding to Plaintiff’s requests for payment.

RESPONSE:

PAYMENTS

REQUEST FOR PRODUCTION NO. 7:Any and all documents relating to or reflecting payments from Defendant to Plaintiff.

RESPONSE:

PERSONNEL

REQUEST FOR PRODUCTION NO. 8: Please produce all documents and records concerning [employee’s name]’s use of the parking lot including all “in/out” records.

RESPONSE:

CONTRACT

REQUEST FOR PRODUCTION NO. 9:All documents related to the Contract.

RESPONSE:

NEGOTIATION AND DRAFTS

REQUEST FOR PRODUCTION NO. 10:All documents relating to the negotiations and/or execution of the Contract.

RESPONSE:

REQUEST FOR PRODUCTION NO. 11: All drafts of contracts between Defendant and Plaintiff.

RESPONSE:


Rogge Dunn is a trial lawyer who loves trying cases. He has litigated complex business, employment, personal injury, and insurance disputes throughout the country, and has tried cases to a jury verdict in four states.

Although approximately two-thirds of his practice involves representing corporate defendants, Mr. Dunn has won more than $175 million in settlements and verdicts for his plaintiff clients, including million dollar verdicts in Texas and Louisiana.

Two of Mr. Dunn’s closing arguments were recorded for the Million Dollar Arguments series. He has been recognized by D Magazine as one of the best lawyers in Dallas. He regularly appears as a legal commentator for television and radio stations, and presents legal seminars four to five times a year.

Mr. Dunn taught at Southern Methodist University as an adjunct professor for 14 years, clerked for the Honorable Reynaldo Garza of the U.S. Fifth Circuit Court of Appeals, and served as a Note Editor of theTexas Law Review.

He is a partner at Clouse Dunn Khoshbin in Dallas, and may be reached at rdunn@trialtested.com or 214-220-0077.

Trey Cox represents clients in a wide variety of litigation, including complex commercial litigation, securities fraud matters, professional liability, energy litigation, real estate litigation, intellectual property and commercial arbitrations—both domestic and international. Mr. Cox has tried a significant number of state and federal jury trials, litigated hundreds of evidentiary hearings and has extensive experience arguing cases before the Fifth Circuit and Texas Courts of Appeals.

His passion for outstanding advocacy and courtroom excellence has been recognized by his peers in local, state and national surveys designed to identify exceptional legal talent: in D Magazine, as a Best Lawyer Under 40 three consecutive times; as a Texas Super Lawyer three consecutive times; in the Dallas Business Journal, as one of the “10 Metroplex Litigators Worth Having on Your Side”; and in the national legal publication Lawdragon, as one of 500 “new stars” in American law.

Mr. Cox serves on the faculty of the National Institute for Trial Advocacy and has lectured throughout Texason topics including trial advocacy, trial strategy and complex litigation. Mr. Cox received a B.A., magna cum laude, from Washington & LeeUniversityand his law degree from the University of Virginia, with honors.

He is a partner at Lynn, Tillotson & Pinker L.L.P. in Dallas, and may be reached at tcox@lynnllp.com or (214) 981-3813.