October 30, 2018 Practice Points

The Federal Rules of Civil Procedure Do Not Recognize an Objection for Discovery Your Client Does Not Like

It's not uncommon for attorneys seeking discovery to dismiss the utility of interrogatories in favor of depositions, but it’s less common for attorneys responding to discovery to take that same tack.

By Joseph V. Schaeffer

It's not uncommon for attorneys seeking discovery to dismiss the utility of interrogatories in favor of depositions. The thought goes, "Why would I choose testimony filtered through an attorney when I can go right to the source in deposition?" It's less common for attorneys responding to discovery to take that same tack. Yet, that's precisely what happened in a case alleging race and sex discrimination in the Western District of Kentucky.

The plaintiff in Percell v. Kentucky responded to multiple contention interrogatories by objecting that they "require[d] her to provide a lengthy explanation that can be explored through deposition(s)." No. 3:16-cv-721, 2018 WL 4677783, at *3 (W.D. Ky. Sept. 28, 2018). In addressing this argument on a motion to compel, the court noted that contention interrogatories "seek to clarify the basis for or scope of an adversary's legal claims." They are not objectionable "merely because [they] ask[] for an opinion or contention that relates to fact or the application of law to fact." Id. (quoting Fed. R. Civ. P. 33(a)(2)). Moreover, while efficiency and fairness generally require contention interrogatories to be deferred until near the end of discovery, there is no rule allowing a party to decline one method of discovery in favor of another. Instead, as the Percell court confirmed, a party is bound to respond to non-objectionable discovery requests fully and completely. The court unsurprisingly overruled the plaintiff's objection.

Percell hardly breaks new ground in reaching this conclusion, which is the lodestar of civil discovery across decades of rule amendments. Nonetheless, the frequency with which the courts reject new and creative attempts to evade this rule suggests that its weight has not fully sunk in. Considering the time and expense associated with litigating issues like that in Percell, however, parties would be better served heeding the rule rather than seeking to avoid it.

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.


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