CHAPTER 9 - 9-5 Interrogatory Responses

• Jurisdiction: United States

9-5 Interrogatory Responses

9-5:1 In General

A party must respond to interrogatories within thirty days after their service⁷⁴ unless the time is extended due to the manner of service, by the parties' agreement, or by court order.⁷⁵ The response to each interrogatory must be in writing,⁷⁶ must be preceded by the interrogatory,⁷⁷ must include the party's answer if the interrogatory is not objected to in its entirety,⁷⁸ and may include objections and privilege assertions as allowed by Texas Rule 193.⁷⁹ Answers to interrogatories may be used only against the responding party at trial or a hearing.⁸⁰

Interrogatory responses, like all other written-discovery responses, must be signed by either the party's attorney or a pro se party.⁸¹ If the responses are not properly signed, they "must be stricken unless it is signed promptly after the omission is called to the attention of the [requesting or responding] party[.]"⁸²

Like other written-discovery responses, interrogatory answers are not filed⁸³ but must be served on all parties to the action.⁸⁴ In addition, the parties "must retain the original or exact copy of [the answers] during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court."⁸⁵

The responding party should answer each interrogatory separately and com-pletely.⁸⁶ This means that an interrogatory answer must include sufficient detail to respond fully to the question.⁸⁷ If the responding party cannot answer the interrogatory because it lacks the information to do so, it should not simply refuse to answer.⁸⁸ Rather, the responding party should respond in such a way that apprises the requesting party that the information is unavailable and set forth its effort to find the information.⁸⁹ Moreover, "a promise to provide the requested information in the future is not a sufficient response to an interrogatory."⁹⁰

Additionally, because each interrogatory must be answered separately and fully, it generally is improper to incorporate outside material by reference.⁹¹ Nonetheless, the propriety of such incorporation by reference is evaluated on an interrogatory-by-interrogatory basis, and it may be acceptable for an interrogatory answer to refer to other interrogatories or discovery if the referral is clear and precise and the other discovery fully answers the interrogatory.⁹² It is, however, never proper to merely incorporate by reference the allegations in the responding party's pleadings even if the pleadings are verified.⁹³ This is because interrogatory answers are admissible in support of a summary judgment motion and as affirmative or impeachment evidence at trial, whereas pleadings cannot be used by the pleader to establish facts in support of its claim or defense as they are merely statements of the drafting attorney.⁹⁴

Under Texas Rule 193.1, a party answering an interrogatory "must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made."⁹⁵ The obvious purpose of this requirement is to require parties to provide complete interrogatory answers as early in the action as possible.

As discussed in Chapter 5, section 5-2:1, nothing in Texas Rule 193 or 197 or the other discovery rules explains when "information" is "reasonably available." As also pointed out therein, what material is reasonably available depends in large measure on the responding party's obligation of reasonable inquiry (i.e., how extensive a search the responding party must make to respond to the discovery request) and whether the information is within the responding party's possession, custody, or control. This, of course, depends on the facts of each action.

9-5:2 Option to Produce Business Records

When an interrogatory answer can be derived or ascertained from public records, the responding party's business records, or from a compilation, abstract, or summary of the responding party's business records, the responding party, under Texas Rule 197.2(c), may, instead of answering the interrogatory, specify the records from which the answer may be derived, giving sufficient detail to permit the requesting party to identify the records and then, if the records are the responding party's business records or a compilation, abstract, or summary of them, afford the requesting party a reasonable opportunity to examine the records, compilation, abstract, or summary.⁹⁶ However, there are a number of prerequisites to the Rule's invocation.

First, the option is limited to the types of records specified in Texas Rule 197.2(c)—"public records, . . . the responding party's business records, or . . . a compilation, abstract, or summary of the responding party's business records."⁹⁷ Thus, for example, the responding party cannot properly refer the requesting party to its own records or another party's records;⁹⁸ to pleadings, deposition transcripts, interrogatory answers, affidavits, or exhibits;⁹⁹ to documents submitted by the responding party to a federal or state agency;¹⁰⁰ or to a private nonparty's documents.¹⁰¹ Further, when the responding party is a natural person, it cannot refer the requesting party to his or her personal records unless they, in fact, are business records.¹⁰²

Second, even though Texas Rule 197.2(c) says that the interrogatory answer need only indicate that the information "may" be found in the specified records, by invoking it, the responding party necessarily is representing that the information needed to fully answer the interrogatory is in the designated records.¹⁰³

Not every type of interrogatory can be answered by a review of public records or the responding party's business records. For example, an interrogatory asking a party to identify specific documents relating to a subject, contention, claim, defense, or the recollections of parties or their employees generally cannot be answered by a reference to such records.¹⁰⁴ Similarly, contention interrogatories generally cannot be answered by a review of public records or the responding party's business records because a search of such records is unlikely to reveal the party's contentions or the facts supporting them.¹⁰⁵

Third, based on federal courts' uniform construction of Federal Rule 33(d), it is reasonable to conclude that Texas Rule 197.2(c) should be used only when answering the interrogatory would impose a burden or expense on the responding party.¹⁰⁶ The burden, however, need not be so great as to warrant a protective order's entry. Also, there is no burden or expense if the responding party would have to answer the interrogatory to properly prosecute its claims or defend against the action.¹⁰⁷

Fourth, as expressly required by Texas Rule 197.2(c), the burden of compiling the information must be "substantially the same" for the requesting and responding parties.¹⁰⁸ This requires, at the minimum, that the interrogatory's answer can be obtained only from the pertinent records—if the interrogatory can be answered in another way, the other way should be used.¹⁰⁹ For example, if the responding party has already culled the requested information as part of its trial preparation or for other purposes, the burden is not substantially equal.¹¹⁰

Although the burden need not be equal, the mere fact that the responding party is more familiar with its records often is insufficient to tip the balance.¹¹¹ Instead, other factors must be balanced with the responding party's familiarity with the records, such as the expense of reviewing them and their nature.¹¹² Familiarity, however, may be the deciding factor with respect to certain records, such as documents that are difficult to read, handwritten notes, or the responding party's financial records.¹¹³ If the burden is substantially the same for the parties, the fact that the requesting party's burden is a heavy one does not prevent the responding party from exercising its option to refer to the records rather than compiling the answer.¹¹⁴

Fifth, the responding party must specify the records "in sufficient detail to permit the requesting party to locate and identify them as readily as can the responding party."¹¹⁵ At the minimum, the responding party must specify, by location, the category or type of record from which the interrogatory answer can be derived or ascertained.¹¹⁶ Directing the requesting party to a mass of undifferentiated or unspecified records is insufficient.¹¹⁷

Finally, if the responding party's business records or a compilation, abstract, or summary of them are specified, the responding party must state a reasonable time and place for examining the records in its response, produce the records at the stated time and place, unless another time and place is agreed to or ordered, and provide the requesting party a reasonable opportunity to review the records.¹¹⁸

Although no Texas case has articulated a standard for evaluating a Texas Rule 197.2(c) response, federal courts have followed a two-step analytical framework. "First, the moving party must make a prima facie showing that a [Federal] Rule 33(d) response is an inadequate means to answering the interrogatories, 'whether because the information is not fully contained in the documents, is too difficult to extract, or other such reasons.' If the moving party makes this showing, the burden then shifts to the producing party to justify responding under [Federal] Rule 33(d) instead of directly answering the interrogatories."¹¹⁹

The mere fact that Texas Rule 197.2(c)'s option is available to the responding party does not mean that the party should avail itself of it.¹²⁰ The responding party may decide not to exercise the option because the pertinent records contain other information that it does not want to disclose to the requesting party or because different conclusions can be drawn from the records and it wants to set forth its own conclusion in the interrogatory answer.¹²¹

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