Drafting Interrogatories - ABA YLD 101 Practice Series

By Kathryn C. Newman

Written discovery can be broken down into three main categories: document requests (Fed. R. Civ. P. ("Rule") 33), requests for admission (Rule 36), and interrogatories (Rule 33). This checklist will take a closer look at drafting interrogatories.

In the broadest sense, interrogatories are written questions from one party to another. They may concern any matter that is discoverable, meaning any matter not privileged that is relevant to the claims and defenses of any party, and need only be "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The purpose of interrogatories, like all discovery, is to narrow and clarify the issues and disputes before the court.

The Form of Interrogatories

  • Fact interrogatories seek (not surprisingly) facts, such as "Identify the location of the defendant's principal place of business" or "Identify any and all persons with knowledge of the facts alleged in the complaint." The answering party may be required to identify pertinent documents, things, or persons with knowledge.
  • Contention interrogatories seek the answers opinion or contention that relates to either a fact or the application of law to the fact. Contention interrogatories may ask a party to (1) state what it contends; (2) explain the facts underlying its contention; (3) assert a position or explain that position with regard to how the law applies to the facts; or (4) articulate the legal reason for the contention. For example, "What do you contend are the damages from the car accident."

Interrogatories Are Limited to the Parties

  • Interrogatories can only be served on another party to the action. The party being served need not, however, have interests adverse to the propounding party.
  • Corporations and other organizations - if they are parties to the action - can be served with interrogatories. However, you cannot direct the interrogatories to a particular person within the organization, such as the CEO or CFO, unless that person was also named individually in the complaint. 
  • In class actions, interrogatories can only be directed at the named plaintiff unless the court chooses to exercise its discretion and carve out an exception for unnamed but identifiable class members. In some circuits, the party seeking to serve interrogatories on unnamed members of a class must show that it is necessary and helpful to the equitable adjudication of the suit and that justice requires the unnamed class member to furnish certain information. 

Interrogatories Are Limited in Number

  • The propounding party is limited to 25 interrogatories - including discrete subparts - to each party. As a result, it is import to finely craft your interrogatories to maximize their effectiveness.
  • "Discrete subparts" is not defined by Rule 33. And there is a great deal of discrepancy between the district courts and their local rules on what constitutes a discrete subpart for purposes of Rule 33.  
  • If you must serve more than 25 interrogatories, you must seek the court's permission or written stipulation from the answering party. The court will evaluate requests for additional interrogatories on a case-by-case basis, balancing the benefits of more discovery against the burdens of additional discovery on the responding party. The requesting party bears the burden of persuasion . Some jurisdictions require "good cause" before they will grant additional interrogatories. 

When to Serve Interrogatories

  • Generally, parties engage in written discovery before moving onto depositions. However, there is no requirement that discovery proceed in that order.
  • Interrogatories may be served at any time after the parties have conferred pursuant to Rule 26(f) (at least 21 days before the first scheduling conference). Of course, a court order laying out the time for service of interrogatories trumps the general rule.
  • To the extent that a party attempts to anticipate mandatory disclosures by serving interrogatories seeking the same information specified in Rule 26(a) for inclusion in the initial disclosure statement, the interrogatories may be stricken as untimely.

Who to Serve Interrogatories on

  • Interrogatories and responses are served pursuant to Rule 5. As a practical matter, most interrogatories are served by mail. In addition, copies must be served on all other parties, unless the court orders otherwise.
  • Interrogatories and responses are not filed with the court unless and until they are used in the proceeding or the court orders filing.
  • Some lawyers file a notice of service of interrogatories with the court. This is to their advantage during a motion to compel for failure to file a timely answer. It may also serve as a deterrent to those who would otherwise be slow to respond.

Resources

Download this article in PDF format

About the Author

Ms. Newman is an associate at Jenner & Block LLP's Chicago office. Her practice focuses on securities litigation and class actions. Ms. Newman has participated in, organized, and supervised numerous complex litigations involving extensive discovery.

101 Practice Series: Breaking Down The Basics

Learn More Order Today

Advertisement