CHAPTER 9 - 9-4 Number of Interrogatories

• Jurisdiction: United States

9-4 Number of Interrogatories

The discovery-control plan applicable to the case, rather than Texas Rule 197, governs the number of interrogatories permitted.⁵² In Level 1 and Level 2 actions, fifteen interrogatories and twenty-five interrogatories, including "discrete subpart[s,]" other than those seeking to identify or authenticate documents, are permitted, respective-ly.⁵³ Unless the Level 3 discovery-control plan expressly provides for more interrogatories, the number of interrogatories in a Level 3 action will be the number that was permitted before the action was moved to Level 3.⁵⁴ Thus, if the plaintiff initially pleaded the action into Level 1 and the court later enters a Level 3 discovery-control plan that does not address the number of interrogatories, the 15-interrogatory limit of Texas Rule 190.2(b)(3) will control. Similarly, if the action was a Level 2 one before the Level 3 discovery-control plan's entry, and the plan does not address the number of interrogatories, the 25-interrogatory limit of Texas Rule 190.3(b)(3) will control.

As pointed out above, under Texas Rules 190.2 and 190.3 and most Level 3 discovery-control plans, the limit on the number of interrogatories includes "[e]ach discrete subpart," but excludes interrogatories "asking a party only to identify or authenticate specific documents."⁵⁵ Accordingly, each discrete subpart of an interrogatory is considered a separate interrogatory. Comment 3 to the 1999 Change to the Rule explains that a "discrete subpart" "is, in general, one that calls for information that is not logically or factually related to the primary interrogatory."⁵⁶

Although no Texas decision discusses what constitutes a "discrete subpart,"⁵⁷ many decisions of federal courts have done so in construing the federal rule on which the Texas rule is based: Federal Rule 33(a)(1). Federal courts uniformly have held that a "discrete subpart" is not determined by whether the inquiry is a sub-numbered or sub-lettered part of an interrogatory.⁵⁸ If such numbering or lettering were required, a party could easily circumvent the limit by eliminating numbering or lettering. In other words, unnumbered or unlettered "subparts" can be counted as "discrete subparts"⁵⁹ and, conversely, sub-numbered or sub-lettered parts of an interrogatory may not be "discrete subparts."⁶⁰

The best test of whether questions within a single interrogatory are "logically or factually related" is as follows:

[W]hether the first question is primary and subsequent questions are secondary to the primary question; or whether the subsequent question could stand alone and is independent of the first question? In other words, "if the first question can be answered fully and completely without answering the second question, then the second question is totally independent of the first and not factually subsumed within and necessarily related to the primary question."⁶¹

Stating the rule, however, is easier than applying it.⁶² In this regard, the determination of what constitutes a discrete subpart must be decided on an interrogatory-by-interrogatory basis. As one court explained:

It is important to acknowledge at the outset that the issue of "discreteness" cannot reliably be captured by a verbal formula, and that ultimately the issue turns on a case-by-case assessment of the degree to which the subpart is logically related to the primary question in the interrogatory, as opposed to being separate and distinct. That approach acknowledges that the issue of "discreteness" often cannot be resolved by resort to a crisp verbal formula; it recognizes the reality that "discreteness" is a matter of degree and that deciding whether a subpart of an interrogatory is sufficiently "discrete" to be regarded as a separate interrogatory will frequently depend on the particular circumstances of each case and may not always be answerable with complete confidence.⁶³

In doing so, a court should "utilize a common sense, rather than overly technical, approach to construing subparts of interrogatories."⁶⁴ Nonetheless, a few hard and fast rules regarding what constitutes a discrete subpart exist.

For example, an interrogatory asking for the factual bases for the denial of each request for admission in a set of requests for admission containing multiple requests generally should be counted as one interrogatory for each denied request.⁶⁵ This is because each request for admission usually deals with a separate or discrete topic.⁶⁶ In the same vein, an interrogatory seeking the factual bases for multiple affirmative defenses or the denials of the allegations of multiple paragraphs of a pleading typically is counted as a separate interrogatory for each defense or paragraph.⁶⁷ Further, "[q]uestions which address separate subjects count as numerous interrogatories. (E.g., 'Were you ever discharged from any employment for incompetency, or did you ever sue a former employer for any reason?')."⁶⁸ Also, an interrogatory asking for information as well as the identity of persons with knowledge about the information often is held to constitute two interrogatories.⁶⁹

In contrast, an interrogatory asking for the details about communications or allegedly false or fraudulent representations are counted as one interrogatory "even though it requests that the times, places, persons present, and contents be stated separately for each communication" or representation.⁷⁰ Similarly, an interrogatory asking about (1) persons with knowledge about a claim, defense, allegation, or fact and the subject area of their knowledge, or (2) other lawsuits, including the identity of each cause of action asserted, the parties, the court in which it was filed, the date it was filed, and its outcome, are one interrogatory.⁷¹ Further, an interrogatory asking the responding party to identify each negligent act or omission, contract breach, fraudulent representation, fiduciary breach, and the like underlying a claim is a single interrogatory even though the answer may reveal multiple acts, breaches, representations, or omissions.⁷²

Unlike the number of interrogatories, which almost always is limited, there is no limit on the number of sets of interrogatories that can be served if the total number of interrogatories in the sets does not exceed the limitation of Texas Rule 190.2 or 190.3 or the Level 3 discovery-control plan.⁷³

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Notes:

^[52] Tex. R. Civ. P. 190 cmt. 1 to 1999 change. Texas Rule 190 provides for three levels of discovery: Levels 1, 2, and 3. Tex. R. Civ. P. 190.2-190.4. See Chapter 2, section 2-3 (discussing the three discovery levels).

^[53] Tex. R. Civ. P. 190.2(b)(3), 190.3(b)(3).

^[54] Tex. R. Civ. P. 190.4(b) ("The discovery limitations of [Texas] Rule 190.2, if applicable, or otherwise of [Texas] Rule 190.3 apply unless specifically changed in the [Level 3] discovery control plan ordered by the court."); Brescia v. Slack & Davis, L.L.P., No. 03-08-00042-CV, 2010 Tex. App. LEXIS 9204, at *10, 2010 WL 4670322 (Tex. App.—Austin Nov. 19, 2010, pet. denied) (mem. op.) ("[E]ven under a Level 3 scheduling order, Level 2 deadlines continue to apply "unless specifically changed in the discovery control plan ordered by the court." (quoting Tex. R. Civ. P. 190.4(b))); Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App.—Fort Worth 2007, pet. denied) ("The rule addressing level 3 discovery control plans states that '[t]he court must, on a party's motion, . . . order that discovery be conducted in accordance with a discovery control plan tailored to the circumstances of the specific suit.' While the rule states that the court 'must' enter a level 3 scheduling order on a party's motion, it does not require that the order provide deadlines different from those under a level 2 case; even under a level 3 scheduling order, the level 2 deadlines continue to apply 'unless specifically changed in the discovery control plan ordered by the court.' That decision is left to the trial court's discretion: 'The discovery control plan ordered by the court . . . may change any limitation on the time for . . . discovery set forth in these rules.'" (citations omitted) (quoting Tex. R. Civ. P. 190.4(a), (b))); see Estate of Grogan, 595 S.W.3d 807, 824 (Tex. App.—Texarkana 2020, no pet.) (Texas "Rule 190.4 does not automatically set deadlines different from Level II deadlines, because they remain under Level III 'unless specifically changed in the discovery control plan ordered by the court.'" (quoting Border States Elec. Supply of Tex., Inc. v. Coast to Coast Elec, LLC, No. 13-13-00118-CV, 2014 Tex. App. LEXIS 5681, at *31, 2014 WL 3953961 (Tex. App.—Corpus Christi May 29, 2014, pet. denied) (mem. op.), and Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App.—Fort Worth 2007, pet. denied))).

^[55] Tex. R. Civ. P. 190.2(b)(3), 190.3(b)(3).

^[56] Tex. R. Civ. P. 190 cmt. 3 to 1999 change; accord In re Sting Soccer Grp., LP, No. 05-17-00317-CV, 2017 Tex. App. LEXIS 11197, at *16, 2017 WL 5897454 (Tex. App.—Dallas Nov. 30, 2017, orig. proceeding) (mem. op.) ("A discrete subpart calls for information that is not logically or factually related to the primary interrogatory."). The concept of "discrete subparts" is derived from Federal Rule 33(a), which limits parties to "25 written interrogatories, including all discrete subparts." Tex. R. Civ. P. 190 cmt. 1 to 1999 change (citing Fed. R. Civ. P. 33, Advisory Committee's Note to 1993 Amend.).

Neither Federal Rule 33 nor its Advisory Committee's Note defines "discrete subpart." Rather, the note provides a single illustration of a non-discrete subpart: "a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the times, place, persons present, and contents be stated separately for each communication." Fed. R Civ. P. 33, Advisory Committee's Note to 1993 Amend. Accordingly, federal courts use a variety of tests in determining whether...