Interrogatories

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 155-176

5-151

ProPounD interroGatories task 30

CHAPTER 5: INTERROGATORIES

TASKS

Task 30 Propound Interrogatories

Task 31 Respond to Interrogatories

Task 32 Propound Contention Interrogatories

Task 33 Respond to Contention Interrogatories

Task 34 Determine Whether to Compel Interrogatory

Responses

FORMS

Form 8 Interrogatories

Form 9 Responses and Objections to Interrogatories

TASK 30

Propound Interrogatories

I. WHAT AND WHY

A. Interrogatories are written questions a party must

answer in writing and under oath. FRCP 33(b).

B. Interrogatories are an effective discovery tool

because they:

1. Are relatively inexpensive and simple to draft.

Some courts issue approved form interrogato-

ries for requesting basic information.

2. Commit the party to a written statement.

3. Can be used to establish facts at trial.

4. Can be used to impeach the answering party

at trial.

C. Under FRCP 33(a)(1), you may serve only 25

interrogatories, including subparts, on any party

without leave of court or written stipulation by all

parties. See Swackhammer v. Sprint Corp. PCS,

225 F.R.D. 658 (D. Kan. 2004) (subparts of inter-

rogatory related to common theme do not count

as separate interrogatories); Duncan v. Paragon

Publishing, Inc., 204 F.R.D. 127 (S.D. Ind. 2001);

Williams v. Board of County Commissioners, 192

F.R.D. 698 (D. Kan. 2000) (seven interrogatories

containing 117 subparts exceeded 25 interrogatory

limit; party not required to answer interrogatories

as propounded). The 25 interrogatory limit is per

party. W Holding Co., Inc. v. Chartis Insurance

Co. of Puerto Rico, 293 F.R.D. 68 (D. P..R. 2013)

(in action with numerous defendants, plaintiff not

entitled to order consolidating defendants’ discov-

ery requests absent showing that defendants had

grossly abused rule allowing 25 interrogatories

per party); St. Paul Fire & Marine Insurance Co.

v. Birch, Stewart, Kolasch & Birch, LLP, 217

F.R.D. 288 (D. Mass. 2003) (each of three defen-

dants could propound 25 interrogatories to plain-

tiff for a total of 75 interrogatories). However,

check your local rules. Under FRCP 26(b)(2),

your court may opt out of the 25 interrogatory

limitation. A court may not, however, impose by

local rule stricter limits than the FRCP allows. St.

Paul Fire & Marine Insurance Co., supra, (limit

is per party; local rule restricting interrogatories

to 25 per side unenforceable). For a discussion of

what constitutes a “subpart,” see Kendall v. GES

Exposition Servs., Inc., 174 F.R.D. 684, 685-86

(D. Nev. 1997).

D. Unlike allegations or admissions in a pleading,

responses to interrogatories do not bind a party

for all purposes. See Donovan v. Crisostomo, 689

F.2d 869, 875 (9th Cir. 1982); Marcoin, Inc. v.

Edwin K. Williams & Co., 605 F.2d 1325, 1328

(4th Cir. 1979); R2 Med. Sys. v. Katecho, Inc., 931

F. Supp. 1397, 1413 (N.D. Ill. 1996).

E. Interrogatories may not seek answers to pure

questions of law. See Abbott v. United States, 177

F.R.D. 92 (N.D.N.Y. 1997).

II. WHEN

A. You may serve interrogatories only after the par-

ties’ FRCP 26(f) initial meeting (Task 20), unless

a court order, local rule or the parties’ written stip-

ulation provides otherwise. FRCP 33(a)(i), 26(d).

B. As a practical matter, serve initial interrogatories

as soon as possible. Use interrogatories before

other discovery methods because:

1. Interrogatories are useful for obtaining basic

information that may form a basis for deposi-

tions and document requests.

2. The answering party cannot simply say “I

don’t know,” as in a deposition, but must make

5-152

task 30 interroGatories

a good faith effort to gather available informa-

tion and formulate an answer. FRCP 33.

C. In some circumstances, wait to send interrogato-

ries or send another set of interrogatories toward

the end of discovery.

1. You may have new questions, or wish to delay

certain discovery to avoid educating your

opponent about your strategy or evidence.

2. Although a responding party is obligated to

update interrogatory answers under FRCP

26(e), consider sending update interrogatories

just before the discovery cutoff to ensure the

validity of previous discovery responses.

D. Ideally, you should send final interrogatories 60

days before the discovery cutoff to ensure suffi-

cient time to move to compel, if necessary. Keep

in mind that you could wait 30 additional days for

responses if you move to compel.

E. Do not send interrogatories less than 33 days

before the discovery cutoff because:

1. The responding party has 30 days to respond.

FRCP 33(b)(2).

2. FRCP 6(d) gives the responding party three

additional days for service by mail.

3. The opposing party has no obligation to

respond to untimely interrogatories. Thomas

v. Pacificorp, 324 F.3d 1176 (10th Cir. 2003)

(court entered summary judgment for defen-

dant, rejecting plaintiff’s claim that discovery

was incomplete, where plaintiff served inter-

rogatories after discovery cutoff).

F. If you fail to send your final interrogatories at least

33 days before the discovery cutoff, you and oppos-

ing counsel must agree or you must make a motion

to shorten the deadline for responding. See Task 94.

G. The parties may stipulate in writing to shorten or

extend the time to respond to interrogatories, pro-

vided the modification does not interfere with any

time set for completion of discovery, a hearing or

trial. FRCP 29. See Tasks 92, 94.

H. Consult local rules, standing orders and pretrial

orders for any other applicable time limitations.

III. HOW

A. Review FRCP 33, local rules and court orders for

any limitations on the number, type or timing of

interrogatories.

B. Determine what information you need to prove

your case.

1. Review your annotated proof of fact (Task 4)

and identify the facts you must prove to estab-

lish your case.

2. Review all disclosures, responses to previous

discovery requests and other information you

already have.

C. Identify information the responding party may

have, such as:

1. Information supporting allegations in the

pleadings.

2. Information relating to property ownership,

medical conditions or employee performance.

3. Information about third parties, such as sub-

contractors or eyewitnesses.

4. Identity of a corporate party’s employees,

officers, directors and agents and their job

responsibilities.

5. Information or statements taken from witnesses

by the responding party, its agents or attorneys.

6. The existence, location and description of

relevant documents. Remember to ask about

computer-stored material. See Task 6A.

7. Insurance policies which may cover the

alleged liability.

8. Prior similar incidents.

9. Damages calculations.

10. Data such as market share, percentage of

minority employees, net worth, office location

and purchase dates.

D. When drafting interrogatories, keep in mind:

1. The responding party’s attorney, rather than the

party, usually drafts the responses. Thus, you are

unlikely to obtain useful responses to “tough”

questions that address ultimate liability issues.

a. In this respect, interrogatories differ from

depositions where the party responds directly.

b. However, interrogatories are effective to

obtain details a party might not know at a

deposition, such as damages calculations,

dates, or complete medical histories.

2. The scope of an interrogatory is broad. The

responding party must provide the requested

information if:

a. The requested information is “available”

to the responding party. FRCP 33(a). This

includes information in the possession

of the party’s agents, attorneys, doctors,

accountants, former and current employees