§33.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§33.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategic and practical considerations regarding CR 33 and Fed. R. Civ. P. 33 are discussed below.

(1)Abuse of CR 33

CR 1 provides that the civil rules shall be construed to secure "the just, speedy, and inexpensive determination of every action." Lengthy interrogatories, and insufficient answers, run directly contrary to this mandate. Interrogatories are best used to identify witnesses with knowledge of relevant facts and to identify relevant documents, thus enabling the examining party to frame a request for production with "reasonable particularity" as required under CR 34(b). In addition, interrogatories may be useful in obtaining information regarding selective contentions in the large case, or in obtaining inexpensive discovery in the small case in which the issues are few in number and easily articulated. Furthermore, specialized uses, such as testing jurisdictional issues or obtaining the opinions of experts, are frequently productive.

The limitations available under CR 26(b)(1), and the addition of CR 26(f) and CR 26(g), provide mechanisms to curb abuse of CR 33. CR 26(b)(1), added in 1985, places certain limits on the otherwise broad scope of discovery allowed under CR 26. CR 26(f) provides for discovery conferences during which the parties may propose limitations on discovery. CR 11 and CR 26(g) offer the possibility of increased sanctions for abuse of the discovery rules. In addition, the substantial changes to the federal rules reflect a sentiment against wholesale carte blanche discovery through interrogatories.

(2)Practical considerations

In some ways, interrogatories are of limited utility. As discussed earlier, in federal court interrogatories are simply limited under Fed. R. Civ. P. 33(a). Similar limitations exist in some counties. See, e.g., Pierce County PCLR 3(h)(2), (3).

Keep in mind that an interrogatory is nothing more than a question written by a lawyer, which will be answered by a lawyer who has had at least 30 days, if not longer, to develop an answer or an objection. Almost always, as a discovery tool, interrogatories are less effective than document discovery and depositions.

In federal court, service of interrogatories must await the initial discovery conference and should await receipt of the opposing party's initial discovery disclosures, which are generally due 14 days after the discovery conference. Once you assess the information contained in the initial disclosures, you can use your limited number of interrogatories (25, including subparts) to fill in the gaps.

In state court, absent local limitations, there are no limits under the rules as to the number of interrogatories that can be propounded. However, whether in state or federal court, efficient and effective use of interrogatories is generally limited to the following areas of inquiry:

(1)identification of persons having knowledge of any facts relevant to the case, or who have knowledge of information that can lead to discoverable facts;

(2)identification of any documents relevant to the case, including documents pertaining to any claims or affirmative defenses asserted;

(3)damages claimed, including description of each component of the damages claim, and how the damages are calculated;

(4)identification of experts, the grounds or factual basis for the opinion, and a description of the materials used and relied upon by the expert in reaching his or her opinion;

(5)key dates, such as date of delivery or date of receipt of goods; and

(6)well-drafted contention interrogatories.

(a)Considerations for the examining party

Define critical, ambiguous, or novel terms at the outset, because the absence of such definitions provides a possible basis for challenging certain requests as vague or ambiguous, or by claiming a lack of knowledge. However, you need not define common terms, which should be given their ordinary meaning.

Set forth certain matters of general application. For instance, if the responding party lacks knowledge necessary to answer, ask for an identification of other persons the responding party believes has information responsive to the request. In anticipation of a claim of privilege, request that if the answer to any interrogatory is claimed to be privileged, the responding party identify the privilege claimed, the facts justifying application of the privilege, and each person with knowledge of the factual basis upon which the privilege is asserted.

In drafting a given interrogatory, strive for brevity, conciseness, and clarity. Avoid compound or multiple requests for information in a single interrogatory. In drafting a request, place yourself in the position of the...