While used ubiquitously, depositions are not the only means of discovery. Interrogatories and requests for admission are additional tools that parties can use to discover information before trial. Federal Rule of Civil Procedure 33 covers interrogatories, and FRCP 36 covers requests for admission. Our last module will cover requests for document production and physical and mental examinations.
Interrogatories
Interrogatories are written questions that one party sends to another.[1] They can seek any of the information that is generally discoverable under Rule 26; that is, any information that is not privileged, relevant to any claim or defense and that is not an unreasonable burdensome request relative to the needs of the party.[2]
Parties are limited to 25 interrogatories, including their discrete subparts, upon opposing counsel, though the court may allow additional interrogatories.[3] This sounds like a simple limit, but it can be difficult to determine how many interrogatories are posed when a question has multiple subparts.
If many subparts could be counted as one question, then the limitation on the number of interrogatories would be meaningless. Parties would effectively be able to post as many interrogatories as they want. On the other hand, if subparts always counted as separate interrogatories, then little information could be gleaned from just 25 questions. Unfortunately, there is no bright-line rule including or excluding subparts. Instead, whether the subparts can be included in a single interrogatory depends on whether the subparts inquire about discrete subjects or are merely for more detailed information about the same subject.[4] For example, assume the following interrogatory:
“If you contend that the Child Restraint System was defectively designed, state with particularity [1] each and every element of the design which you contend was defective, [2] how such design was defective and [3] the manner in which the injuries were caused, contributed to and/or permitted to occur as the result of each alleged design defect.”[5]
In this example, the court found that the multi-part question counted as one interrogatory because all the subparts involved the same theme. Although the subparts were distinct, they did not discuss unrelated topics.[6]
Although the court has the discretion to allow more than the standard number of interrogatories, the court must limit interrogatories in the same situations it would limit other discovery, such as where:
- Interrogatories are unreasonably duplicative or cumulative, or the information sought can be accessed from a less burdensome, more convenient, or less expensive source;
- The requesting party already had ample opportunity to obtain the information by discovery; or
- The interrogatories seek information that is outside the scope of discovery as outlined in Federal Rule 26(b) (not reasonably calculated to lead to discoverable information).[7]
Interrogatories must be answered by the party upon whom they are served. If the party is an organization, the organization must designate an officer or agent who will answer the questions on the organization’s behalf.[8]
Responding to Interrogatories
The party receiving interrogatories has 30 days from service to answer or object to the questions. However, the parties are free to stipulate to a different deadline for responses and a court can impose a different deadline under appropriate circumstances. Examples of “appropriate circumstances” may include when the information sought is not immediately available to the responding party. It may not make sense for the judge to not require a response until certain portions of discovery are completed and additional information is collected.[9] The court can refuse to order or agree to deadline changes if the parties seek or agree to limitations that might interfere with the deadline for completing discovery or the trial date.[10]
If answering an interrogatory requires the examination, compiling, or summarizing of paper or electronic business records and the burden of going through such documents would be the same to either party (such as when both parties have access to those documents or the documents are matters of public record), then rather than answering the interrogatory in writing, the responding party may:
- Specify for the requesting party which documents must be reviewed to answer the interrogatory, and
- Give the requesting party the opportunity to review the records and make copies (if the documents are under the control of the responding party).[11]
For example, if a party asks for information contained in police reports or record kept at the country records office, the responding party can reference those records in the interrogatory rather than going through the effort to obtain and copy them.
Answers to interrogatories are provided under oath.[12] All objections to interrogatories must be stated specifically, in writing, and in a timely fashion (by the deadline for responding to the interrogatories) or they are waived, unless the court excuses late answers or objections for good cause.[13] If an objection is waived, then the party must answer the interrogatory. Moreover, there can be no objection to the information later if opposing counsel later wants to enter it into evidence at trial as answers to interrogatories can be used at trial just like live testimony.[14]
The person who provides the answers to the interrogatories must sign the answers and objections must also be signed by the attorney registering the objection.[15] Signing certifies that the discovery or objection is not served for any inappropriate purpose.
Though interrogatories are used less frequently than depositions, they “spawn a greater percentage of objections and motions than any other discovery device.”[16] Historically, while roughly 50% of litigants use depositions, only 30% use interrogatories, though 65% of all discovery objections made are to interrogatories whereas only approximately 26% are to depositions.[17]
Whether interrogatories should be posed before or after depositions is a strategic decision dependent on the case. The rules of discovery allow parties to use discovery methods in any order they wish. While it is most common for attorneys to depose witnesses first,[18] some attorneys may wish to use interrogatories before taking depositions. There can be many advantages gained by first posing interrogatories, including:
- Identifying witnesses that should be deposed;
- Forcing opposing counsel to disclose the witnesses they will use at trial;
- Discern the facts and circumstances upon which counsel can base a motion for additional discovery; and[19]
- Narrowing the relevant scope of discovery, thereby potentially expediting the litigation process.
On the other hand, many attorneys find interrogatories to be burdensome and inefficient. Also, if an attorney posing interrogatories is not careful, she can educate opposing counsel as to her theory of the case, helping the opponent prepare for depositions and trial.
Parties may also avoid posing interrogatories because they invite the other party to also submit interrogatories. As answering interrogatories are burdensome to answer and may force parties to commit to theories of the case and make strategic decisions early in the discovery process. Parties may instead engage in an unspoken agreement to try to complete discovery through depositions and document production and resort to interrogatories only if necessary.[20]
Moreover, while depositions require spontaneous answers and requests for production are not easily avoidable, interrogatories can often be answered evasively and incompletely. Therefore, interrogatories are slightly less direct mechanisms of discovery.
Requests for Admission
The purpose of requests to admit are to identify and narrow down the issues on which the cases will be decided.
Requests for admissions involve a party serving written, factual statements upon opposing counsel, requiring opposing counsel to admit, deny, or object to the substance of each statement. Any statements that are admitted or that are neither objected to nor denied, are established as fact, and they will be taken as true for purposes of trial.[21]
For example, one party may send a request for admission that states, “Plaintiff was involved in an automobile accident in Rockingham County on January 17, 2017, which resulted in Plaintiff suffering a broken arm.” Opposing counsel’s response could admit the entire statement, deny the entire statement, admit it in part, or state that it has insufficient facts to confirm or deny the statement.
Requests to admit can be served at any time, even as early as the complaint initiating the action. There is no limit on the number of requests that a party can serve.[22] Furthermore, they can pertain to any matter properly within the scope of discovery, including requests relate to discoverable facts, opinions, the application of the law to facts, and the genuineness of documents.[23] For example, a request to admit that relates to the application of law to facts might state, “Plaintiff had the right of way when the automobile accident occurred.
For clarity, each factual statement in the request to admit must be stated separately. If the request asks about the genuineness of a document, then the request must either include a copy of the document or the party requesting the admission must make the document available for opposing party’s inspection and copying.[24]
A party who receives a request to admit has 30 days to respond, unless requests are served with the complaint, in which case opposing counsel has 45 days to respond.[25] If no response is given, then all statements are deemed admitted.[26]
If a statement is admitted, it is treated as fact for all purposes in the litigation. If partially denied, the responding party may qualify an answer or deny only party of a statement, specifying what part of the statement is admitted and what party is denied.[27] A party can respond that he lacks sufficient information to admit or deny if he first makes a reasonable inquiry into the matter and the information he has or can reasonably obtain is insufficient to allow him to admit or deny. The responding party cannot refuse to admit or deny simply because the information needed is equally accessible to the requesting party. In other words, the requesting party can make the respondent do the legwork for him.[28]
If a statement or any part of it is denied, the part denied is in dispute and remains an issue to be determined at trial.
Responding to Requests for Admission
Written answers to requests to admit must be signed and served upon opposing counsel, but they need not be given under oath. [29] Any objections to requests to admit are due by the deadline for the response.[30] The party who served the requests can file a motion asking the court to determine whether opposing counsel’s response was sufficient, or whether an objection was legitimate. If the court finds that an answer is insufficient, the judge has the option to deem the factual statement admitted or allow an amended answer. If the court finds that an objection is legitimate, then the responding party does not have to answer the question. If an objection to a request to admit is not legitimate, the court must order that an answer be served.[31]
The judge can also defer ruling on an objection until later in the discovery process (or until trial), but unnecessary delays in resolving discovery matters may result in the parties wasting time, energy, and resources investigating the disputed issue.[32]
A party can retract an admission if the court allows it. A court may permit withdrawal or amendment of an admission when:
- Withdrawal or amendment “would promote the presentation of the merits of the action,” and
- Withdrawal or amendment would not prejudice the parties in maintaining or defending the action.[33]
A party is “prejudiced” if he justifiably relied upon the admission to his detriment, for example, if he built his entire case aro/und that admission. Whether there was prejudice may depend upon how central the admitted fact is to the litigation, whether counsel had changed his theory of the case based upon the admission and how much additional time and cost was invested into further work based upon the admission.
Rule 36 requests for admission are only taken as fact for purposes of the present litigation. The fact is not deemed admitted in later unrelated litigation proceedings.[34]
Requests for admissions are uniquely helpful in establishing the genuineness of documents. The rules of evidence require that a party provide the foundation of a document – the basis for believing it is genuine – before a document is admitted into evidence at trial. Therefore, it is helpful for a party to know what items will be admitted into evidence in advance of the trial, as cases often hinge on what evidence can be offered to support a party’s claim.[35]
For example, imagine a wrongful death case against a physician alleged that the physician prescribed an unusual and dangerous drug to be taken in dangerously high doses. The plaintiff may send a request for admission that a copy of the prescription that the physician wrote for the patient was genuine. If this is not admitted, the plaintiff will have to conduct interviews, depose the doctor or his staff or engage handwriting experts to secure the admissibility of the document.
Admissions under Rule 36 are also stronger evidence than general admissions – testimony or statements by a party admitting a fact. Regular admissions are simply evidence, which can be contradicted by other evidence. Rule 36 admissions however are stronger because they are assumed proven. That means that the opposing party is not allowed to submit any contradicting evidence to try to disprove the fact at trial.[36]
Admissions under Rule 36 may be read to the jury at trial and are accompanied by instructions from the judge that they conclusively prove the fact as true without any further evidence. Since they are read to the jury, the language in which they are written should be clear, concise, and impactful. The admission can also be used in cross-examination or as other evidence to discredit or contradict a witness or party.[37]
Requests to admit can also be used to pose follow-up questions after depositions and interrogatories, if there is something that counsel is still unclear about or forgot to ask. Questions that linger after other forms of discovery are completed can be turned into requests to admit, forcing the other party to clarify the issue. On the other hand, if requests are posed before interrogatories and a party denies a request, then you can use interrogatories to clarify the basis for the party’s denial.[38] Since requests are so flexible as to timing and number, counsel is free to use them both as a precursor to other discovery methods and as a clean-up tool. How requests are used is a matter of technique and strategy. What works best will depend upon the facts of the case.
In our final module, we will look at the last two methods of discovery: requests for production of documents and physical or mental examinations.
[1] Black’s Law Dictionary(Seventh Edition 1999). Definition: interrogatory, p. 825. St. Paul, Minn: West Group
[2] U.S. Government, Federal Rules of Civil Procedure 2017 Annotated, Rule 33(a)(1); FRCP 26(b)(1).
[3] FRCP 33(a)(1).
[4] High Point at 5-6, citing FRCP 33(a) advisory committee’s note (1993 Amendments); 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure Sect. 2168.1, at 261 (2d ed. 1995).
[5] High Point SARL v. Sprint Nextel Corporation, et. al, Case No. 09-2269-CM-DJW (U.S. Dist. Ct. Kansas, 2011), p. 7, citing Cardenas, 231 F.R.D. at 617. Retrieved from https://www.gpo.gov/fdsys/pkg/USCOURTS-ksd-2_09-cv-02269/pdf/USCOURTS-ksd-2_09-cv-02269-11.pdf
[6] High Point at 7, citing Cardenas, 231 F.R.D. at 619-620.
[7] FRCP 26(b)(2)(C); FRCP 33(a)(1).
[8] FRCP 33(b)(1).
[9] FRCP 33(a)(2) and (b)(2).
[10] FRCP 29(b).
[11] FRCP 33(d).
[12] FRCP 33(b)(3).
[13] FRCP 33(b)(4).
[14] FRCP 33(c)
[15] FRCP 33(b)(5).
[16] FRCP 33, Notes of Advisory Committee on Rules – 1970 Amendment.
[17] FRCP 33, Notes of Advisory Committee on Rules – 1970 Amendment (citing Speck, The Use of Discovery in United States District Courts, 60 Yale L.J. 1132, 1144, 1151 (1951); Note, 36 Minn.L.Rev. 364, 379 (1952).
[18] Epstein, Edna S., Seeking to discover: valuable information may be revealed by posing interrogatories before giving notice of depositions. ABA Journal, Nov. 2017, pp. 22-23.
[19] Id. At 23.
[20] Id.
[21] Black’s, Definition:request for admission, p. 1307.
[22] McElhaney, James W., McElhaney’s Trial Notebook (Third Edition, 1994), p. 45. Chicago, IL: Section of Litigation, American Bar Association.
[23]FRCP 36(a)(1); McElhaney at 45.
[24] FRCP 36(a)(2).
[25] McElhaney at 46.
[26] FRCP 36(a)(3).
[27] FRCP 36(a)(4).
[28] FRCP 36(a)(4); McElhaney at 46.
[29] FRCP 36 Notes of Advisory Committee on Rules – 1970 Amendment.
[30] FRCP 36(a)(3) and (5).
[31] FRCP 36(a)(6).
[32] FRCP 36(a)(6) and Notes of Advisory Committee on Rules – 1970 Amendment.
[33] FRCP 36(b).
[34] Id.
[35] McElhaney at 46-47.
[36] McElhaney at 46.
[37] McElhaney at 47-48.
[38] McElhaney at 48.