Interrogatories

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 191-216

HANDLING FEDERAL DISCOVERY

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. If more than 25 interrogatories are served, the court may, upon

consideration of the proportionality element, allow more. See FRCP 33(a)(1); see e.g., 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

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TASK 30 INTERROGATORIES

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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).

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:

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.