Interrogatories

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 157-178

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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 interrogatories 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 interrogatory 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’ discovery 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 defendants could

propound 25 interrogatories to plaintiff 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

parties’ FRCP 26(f) initial meeting (Task 20),

unless a court order, local rule or the parties’

written stipulation 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:

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TASK 30 INTERROGATORIES

1. Interrogatories are useful for obtaining

basic information that may form a basis for

depositions and document requests.

2. The answering party cannot simply say “I

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

make a good faith effort to gather available

information and formulate an answer. FRCP

33.

C. In some circumstances, wait to send interrogatories

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

sufficient 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

defendant, rejecting plaintiff’s claim that

discovery was incomplete, where plaintiff

served interrogatories after discovery cutoff).

F. If you fail to send your final interrogatories at

least 33 days before the discovery cutoff, you and

opposing 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,

provided 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

establish 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. See In re Domestic Drywall

Antitrust Litigation, 300 F.R.D. 228 (E.D.Pa.

2014).

2. Information relating to property ownership,

medical conditions or employee performance.

3. Information about third parties, such as

subcontractors 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