§33.6 Analysis

• Jurisdiction: Washington

§33.6ANALYSIS

This section analyzes the provisions of CR 33 and Fed. R. Civ. P. 33.

(1)Interrogatories may be served only upon a party to the action

CR 33(a) provides in pertinent part that "any party may serve upon any other party written interrogatories to be answered by the party served." Thus, interrogatories may only be served by, and answered by, a party to the litigation. A similar provision appears in CR 34 and CR 36. Thus, CR 30 (Depositions Upon Oral Examination), CR 31 (Depositions Upon Written Questions), and CR 45 (Subpoena) are the discovery tools for use with nonparty witnesses.

(2)Response by a corporation, partnership, association, or governmental agency

Under CR 33(a), if the party served is a public or private corporation or a partnership or association or governmental agency, the interrogatories may be answered or objected to by any officer or agent of such an entity. An attorney may qualify as an agent. Am. Linen Supply Co. v. Nursing Home Bldg. Corp.,15 Wn.App. 757, 551 P.2d 1038 (1976). For additional authority, see §33.7(2), below.

(3)Scope of discoverability

The scope of discoverability is discussed below.

(a)Generally

CR 33(b) provides in part: "Interrogatories may relate to any matters which can be inquired into under Rule 26(b) ...." Generally, CR 26(b) allows discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, provided the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Lurus v. Bristol Labs., Inc., 89 Wn.2d 632, 636-37, 574 P.2d 391 (1978) (holding that plaintiff is entitled to discovery of claims against the defendant subsequent to the date of injury in the subject litigation); Bushman v. New Holland Div. of Sperry Rand Corp., 83Wn.2d429,433-35,518 P.2d 1078 (1974) (concluding that plaintiff's interrogatories were proper subjects of discovery because they were related directly to the subject upon which the action was based). See Chapter 26. (Rule 26. General Provisions Governing Discovery) of this deskbook; see also §33.7(3), below.

Under CR 26(b)(1), the trial court is allowed to manage the frequency and extent of use of interrogatories and other discovery devices:

The frequency or extent of use of the discovery methods set forth in section (a) shall be limited by the court if it determines that: (A) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (C) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under section (c).

(b)Contention interrogatories

Parties often propound interrogatories seeking the factual and legal bases for any claims made or affirmative defenses asserted by the opposing party. These types of interrogatories are often referred to as "contention interrogatories." Contention interrogatories are contemplated under both the federal and Washington rule:

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.

CR 33(b); seeFed. R. Civ. P. 33(a)(2).

Examples of proper contention interrogatories include asking any party to (1) state its contentions or clarify whether it is making a contention; (2) articulate the facts underlying a contention; (3) assert a position or explain that position in relation to how the law applies to the facts; and (4) explain the legal or theoretical basis behind a contention. See Capacchione v. Charlotte-Mecklenburg Schs., 182 F.R.D. 486, 489 (W.D.N.C. 1998). In view of the nature of contention interrogatories, most courts disfavor a party's use of contention interrogatories until discovery has been undertaken, recognizing that they are more appropriately used after a substantial amount of discovery has been conducted, typically at the end of the discovery period. Tennison v. City & County of San Francisco, 226 F.R.D. 615, 618 (N.D. Cal. 2005) (holding that plaintiff was properly required to answer contention interrogatory requesting all facts supporting his claim for compensatory and general damages, other than by his repeated statement that "his damages stem from 13-1/2 years of wrongful incarceration," because defendant officer was entitled to know whether citizen suffered emotional distress because of incarceration and whether he sought treatment for such distress, among other things, and should not have to guess regarding plaintiff's alleged injuries); Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 110-11 (D.N.J. 1990) (deeming plaintiff's contention interrogatories, in its first wave of discovery requests, premature when discovery was in its "infancy" and holding that judicial economy and efficiency dictated that contention interrogatories are more appropriate after a substantial amount of discovery has been conducted); In re Convergent Techs. Sec. Litig., 108 F.R.D. 328, 338-39 (N.D. Cal. 1985) (holding that a party seeking answers to contention interrogatories issued early on in case must handcraft a limited set of questions and must be able to show that there is good reason to believe that answers to its well-tailored questions will contribute meaningfully to clarifying the issues in the case, narrowing the scope of the dispute, or setting up early settlement discussions; or that such answers are likely to expose a substantial basis for a motion under rule 11 or rule 56). Some courts impose upon the propounding party the burden of justifying service of contention interrogatories early in the discovery phase of the case, before substantial document and deposition discovery has been completed. A court may require the propounding party to present "specific, plausible grounds for believing that securing early answers to its contention questions will materially advance the goals of the [discovery rules]." Fischer & Porter Co. v. Tolson, 143 F.R.D. 93, 96 (E.D. Pa. 1992) (citation omitted) (denying defendant's motion to compel when defendant's contention interrogatories were filed early in pretrial period before substantial documentary or testimony discovery has been completed).

The framework most often relied upon in determining the timing of contention interrogatories is set forth inln re Convergent Technologies, 108 F.R.D. at 338-39. To serve early contention interrogatories, the Convergent Technologies court required the following showing from the propounding party:

that there is good reason to believe that answers to its well-tailored questions will contribute meaningfully to clarifying the issues in the case, narrowing the scope of the dispute, or setting up early settlement discussions, or that such answers are likely to expose a substantial basis for a motion under Rule 11 or Rule 56 .... The Court will be especially vigilant in its evaluation of proffered justifications when a complaint is not facially infirm and when defendants appear to have control over or adequate access to much of the evidence relevant to [the allegations].

Id. There are no Washington cases discussing criteria or limitations on contention interrogatories.

(c)Waiver of objections by failing to timely respond to interrogatories

As a general rule, objections to interrogatories are waived unless made within the time allotted for response—either 30 days or such additional time as set by stipulation or order. Although CR 33 does not contain the explicit waiver language found in its federal counterpart (Fed. R. Civ. P. 33(b)), Washington courts hold that an objection is waived if not made within the 30-day response period. Neighborhood Alliance of Spokane Cnty. v. County of Spokane, 172 Wn.2d 702, 718, 261P.3d 119 (2011); Safeco Ins. Co. of Am. v. Rawstrom, 183 F.R.D. 668, 671-72 (CD. Cal. 1998); Jayne H. Lee, Inc. v. Flag staff Indus. Corp., 173 F.R.D. 651, 657 (D. Md. 1997) (granting defendant's motion to compel and holding that plaintiff's failure to timely respond to defendant's interrogatories waived any objections, other than based on privilege). See alsoChapter 26 (Rule 26. General Provisions Governing Discovery) of this deskbook. In Rawstrom, a defendant was deemed to have waived certain objections because they were not raised until her supplemental responses to earlier propounded interrogatories. The supplemental responses were served after the time required under Fed. R. Civ. P. 33(b). The fact the defendant served partial responses within the 30-day period did not preserve her right to file belated objections in her supplemental responses.

Practice Tip: If you are unable to provide complete responses to interrogatories within the 30-day time period, and you cannot obtain a written extension of time from opposing counsel within which to respond, you should serve written objections to any interrogatories by separate document within the 30-day period. This will avoid any potential waiver of those objections. If possible, bring a motion for protective order if bases exist for objection under CR 26(c).

(d)Compliance with CR 26(g)

CR 26(g) applies both to an interrogating party's requests for discovery and to a responding party's answers and objections to interrogatories. CR 26(g) requires certification from a party and its counsel...