CHAPTER 9 - 9-3 Interrogatory Types

• Jurisdiction: United States

9-3 Interrogatory Types

There are two basic interrogatory types: identification and contention interrogatories.¹⁵ Identification interrogatories call for factual information, such as the identity of documents, tangible things, persons with knowledge of relevant facts, or communications.¹⁶

The Texas discovery rules expressly permit contention interrogatories.¹⁷ Texas Rule 197.1 defines a contention interrogatory as one "inquir[ing] whether a party makes a specific legal or factual contention" or "ask[ing] the responding party to state the legal theories and to describe in general the factual bases for the party's claims or defenses[.]"¹⁸ Such interrogatories may, for example, ask a party to (1) state what it contends or whether it is making a particular factual or legal contention, (2) explain the facts underlying an allegation, claim, or defense, (3) assert a position or explain a position with regard to how the law applies to the facts, or (4) articulate the legal or theoretical reason for a contention or allegation.¹⁹ In other words, contention interrogatories require parties to put meat on the relatively barebones information required by Texas notice pleading.²⁰

Although Texas Rule 197 expressly permits contention interrogatories,²¹ it makes clear that such interrogatories cannot be used "to require the responding party to marshal all of its available proof or the proof it intends to offer at trial."²² What constitutes evidence marshalling is not clearly explained by Texas Rule 197 or by Texas Rule 194, which similarly provides that "the responding party need not marshal all evidence that may be offered at trial" in providing the initial disclosure required under Texas Rule 194.2(b)(3)—or, for cases filed before January 1, 2021, in responding to a Texas Rule 194.2(c) request for disclosure—of "the legal theories and, in general, the factual bases of the responding party's claims or defenses[.]"²³ Rather, Comment 2 to the 1999 change to Texas Rule 197 merely explains that "interrogatories that ask a party to state all factual and legal assertions are improper."²⁴ Because undefined words in procedural rules are given their ordinary meaning,²⁵ "marshalling" as used in Texas Rule 197.1 and the other discovery rules should be given it ordinary meaning—"[a]rranging all of a party's evidence in the order that it will be presented at trial."²⁶

An interrogatory asking the responding party to state "all" facts or "every" or "each" fact concerning a cause of action or defense appears to be improper.²⁷ In contrast, an interrogatory asking for the "general bases" or the "material" or "principal" facts concerning such a matter should be proper.²⁸ Therefore, it stands to reason that an interrogatory asking a plaintiff to "state, in general, the facts supporting its breach of contract claim" or a defendant to "state the principal [or material] facts supporting its estoppel defense" does not require evidence marshalling and is proper.²⁹

Moreover, an interrogatory asking the responding party to identify "all documents concerning or relating to" or "all persons with knowledge about" a matter or subject is an identification, rather than a contention, interrogatory that does not require evidence marshalling and generally is appropriate if it is not otherwise unduly burdensome, overbroad, or disproportionate to the case's needs.³⁰

Further, the mere fact that an interrogatory uses the word "all," "every," or "each" does not necessarily mean that it requires evidence marshalling.³¹ This principle is illustrated by Sheffield Development Co. v. Carter & Burgess, Inc.³² In that case, a homebuilder sued a residential subdivision developer for post-construction damage to houses that it built on subdivision lots, claiming that the damage was due to the lots' improper leveling and drainage.³³ The developer then joined the engineering firm that provided the engineering and surveying services for the lots' grading as a third-party defendant and sought contribution from it.³⁴ During discovery, the engineering firm served the following interrogatory on the developer:

Please identify/specify each and every lot in the Development which you contend deviated from or failed to conform to the approved grading and drainage plans. For each such lot, please identify and specify:

(a) the specific nature of the alleged deviation or non-conformity;

(b) the date(s) on which the alleged deviation or non-conformity existed;

(c) the person(s) and/or event(s) which you contend caused or contributed to the alleged deviation or non-conformity;

(d) the date the alleged deviation or non-conformity was discovered and by whom; and

(e) any and all steps taken to correct or remedy the alleged deviation or nonconformity.³⁵

The developer objected to the interrogatory because, among other things, it required evidence marshalling.³⁶ The trial court disagreed and "barred [the developer] from offering evidence of defects or errors by [the engineering firm] pertaining to grading or drainage . . . until it more fully answered the interrogatory [and further] ordered that [the engineering firm] did not need to produce any witnesses for deposition or respond to any discovery requests regarding [the developer's] claims until the question was answered[.]"³⁷

In the appeal from the engineering firm's summary judgment, the developer argued that the trial court's discovery order was improper because the interrogatory was objectionable.³⁸ The Fort Worth Court of Appeals, in rejecting the argument, held that the interrogatory did not require evidence marshalling because it did not require the developer to "'arrang[e] all of [its] evidence in the order that it will be presented at trial.' . . . Instead, it sought the facts underlying [the developer's] claims against [the engineering firm], which 'is the very purpose of discovery.'"³⁹

Accordingly, interrogatories like the interrogatory at issue in Sheffield Development that, for example, ask a plaintiff to state each misrepresentation or omission underlying its fraud or DTPA claim, each fiduciary breach underlying its breach of fiduciary claim, each trade secret or item of confidential information stolen or misappropriated, each breach of a lease provision in a wrongful eviction action, each discriminatory action, or each construction defect do not require evidence marshalling.⁴⁰

The difficulty is that there is a large middle ground between these types of interrogatories and ones that ask a party to state "all" or "every" fact supporting a cause of action or defense.⁴¹ Accordingly, what constitutes evidence marshalling often must be decided on an interrogatory-by-interrogatory basis.⁴² In doing so, a court should use a pragmatic, common-sense approach that weighs the interrogatory's scope, the burden and expense involved in responding to it, the action's complexity, and whether the information can be more readily obtained through depositions or another discovery form (i.e., by engaging in a proportionality analysis).⁴³

Although a court may defer answers to contention interrogatories until after other designated discovery has been completed,⁴⁴ there is no reason why a court cannot require answers to contention interrogatories early in the action. Such a requirement is consistent with Texas Rule 192.2, which provides that "the permissible forms of discovery . . . may be taken in any order or sequence," and, more importantly, with Section 10.001 of the Texas Civil Practice and Remedies Code, which requires a party to have some "evidentiary support" for its claims or defenses.⁴⁵ Thus, the responding party can answer a contention interrogatory served early in the action with the information presently available and seasonably amend or supplement its answer as more information becomes available through discovery.⁴⁶ In this regard, the responding party is not prejudiced by having to respond to contention interrogatories early in the action because, under Texas Rule 197.3, "an answer to an interrogatory inquiring about [the opposing party's contentions or damages] that has been amended or supplemented may not be used for impeachment."⁴⁷

Contrary to the belief of many practitioners, contention interrogatories that ask for the factual bases for an allegation, claim, or defense do not seek information protected by the work-product privilege even if the facts were learned by the party or its attorney during witness interviews or the investigation during, or in anticipation of, the litigation.⁴⁸ In fact, Texas Rule 192.5(c)(1) makes this clear by providing that "information discoverable under [Texas] Rule 192.3 concerning . . . contentions" is not work-product protected from discovery "[e]ven if made or prepared in anticipation of litigation or for trial[.]"⁴⁹ In the same vein, the work-product privilege does not apply to interrogatories asking a party to identify persons with knowledge about, or documents concerning, an allegation, claim, defense, or particular facts, irrespective of how the party or its attorney learned about the persons or documents.⁵⁰ However, contention interrogatories asking the responding party to identify the legal authorities supporting their causes of action or defenses are improper because such information is protected by work-product privilege.⁵¹

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^[15] Robert K. Wise, Ending Evasive Responses to Written Discovery: A Guide for Properly Responding (and Objecting) to Interrogatories and Document Requests Under the Texas Discovery Rules, 65 Baylor L. Rev. 510, 512 (2013); cf. Buckner v. Montgomery Cnty. Jobs & Fam. Servs. Div., No. 3:11-cv-320, 2012 U.S. Dist. LEXIS 43251, at *3, 2012 WL 786948 (S.D. Ohio Mar. 29, 2012) ("There are basically two types of interrogatories: identification interrogatories and contention interrogatories."); Buckner v. Montgomery Cty. Jobs & Family Servs. Div., No. 3:11-cv-320, 2012 U.S. Dist. LEXIS 43251, at *3, 2012 WL 78694 (S.D. Ohio Mar. 29, 2012) ("There are...