Concept
Interrogatories
Discovery devices, subpoenas, and use of depositions
Interrogatories
An interrogatory is a written question that one party serves on another, and each one that is not objected to must be answered separately and fully in writing under oath.1 The lawyer serves up to twenty-five such questions, often adapting pattern interrogatories that form books publish for particular kinds of claims and tailoring them to the case.2 Sending the questions costs the asker almost nothing, because no one travels, hires a reporter, or sits across a table from a witness. The recipient bears the real cost: it must gather the information, draft answers with counsel, and swear to them.
Lawyers use the device to narrow the dispute. Interrogatories pin down items that the pleadings formally deny but that no one seriously contests, and they extract detail where the pleadings speak only in general terms.3 Rule 33 controls the device in three ways, and the sections below take them in order: a ceiling on questions, a standard for sworn answers, and a deadline for answers and objections.
Number and Scope
Rule 33(a)(1) caps the questions at 25. Unless the parties stipulate or the court orders otherwise, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts, and leave to serve more may be granted to the extent consistent with Rule 26(b)(1) and (2).4 The cap counts questions, not numerals. A lawyer who numbers 18 items has not necessarily served 18 interrogatories, because the words discrete subparts send the count inside each item. An item that asks for details of one subject reads naturally as a single question; an item that bundles questions on separate subjects counts once for each.
The ceiling protects the recipient. Writing a question takes the sender a few minutes, while answering it takes the responding party a search of records, consultation with employees, and a sworn response. Without a limit, a party with a large budget could impose heavy costs at little expense to itself. Counting discrete subparts keeps drafting from defeating the limit, since a single numbered item could otherwise carry a page of questions. The leave provision is the safety valve for complex cases. A court measures a request for more against Rule 26(b)(1) and (2), so the party asking should explain what the extra questions will add that the first 25 could not.
The first set looks modest on paper and still breaks the rule, so its recipient has a ground for objecting to the excess. The serving party's way forward is the one the rule provides: stipulate with the other side, ask the court for an order, or seek leave.5 Painter's set shows the other side of the line, since a set that stays at or below 25 after the subparts are counted needs no one's permission.
Rule 33 also limits who may be asked. It authorizes interrogatories between parties and does not reach nonparty witnesses.7 In Alewife's malpractice suit against the surgeon Perch, Perch must answer interrogatories, but Trout, who is not a party and has never been brought before the court, is not required to answer them.8
As for subject matter, an interrogatory may relate to any matter that may be inquired into under Rule 26(b), the scope that governs the other discovery devices. It is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, though the court may order that the interrogatory need not be answered until designated discovery is complete, until a pretrial conference, or until some other time.9 The contention clause lets a lawyer ask what a party says, not only what it knows. An interrogatory that asks how the party contends the law applies to the facts draws out the position the party will take at trial, and the answer narrows what the trial must decide.10
The deferral power answers a timing problem. A party often cannot say what it contends until discovery is under way, so a demand at the outset may be premature, and the court may postpone the answer. Postponement delays the answer; it does not excuse it.
The line to watch on an exam runs between a contention that applies law to fact and a request for pure law.
The first is proper. Answering requires Toyota to decide how it will argue the defense on these facts, and the answer, even a negative one, helps narrow the issues. The second falls outside the protection the rule gives. The rule shields opinions and contentions that relate to fact or to the application of law to fact, so by negative implication an interrogatory that calls for a pure legal conclusion, not applied to the facts of the case, is objectionable.11 Painter can look up the elements as readily as Toyota can, and an answer would be a general legal essay with no necessary link to this lawsuit. A useful test is whether the answerer could respond without knowing anything about the case. If so, the interrogatory seeks pure law; if the answer depends on how the defendant says the law fits the accident, it seeks a contention.
Form and Oath of Answers
Rule 33(b)(3) fixes the form of every response: each interrogatory, to the extent it is not objected to, must be answered separately and fully in writing under oath.13 Each requirement does work. A separate answer can be matched to the question it addresses, so the asker can see which questions drew answers and which drew objections. A full answer contains the information available to the answering party. An answer under oath turns a paper that lawyers helped draft into a sworn statement. The qualifier about objections limits the rule's own reach: an objection excuses only the part it covers, and the responding party must still answer the rest.
The oath gives the written device its force. A knowingly false answer is perjury, just as a lie on the witness stand would be, so the signer has every reason to verify the facts before committing to them.14 Reliable sworn answers can then do what interrogatories exist to do, which is to narrow the issues.15
A party answers the interrogatories directed to it. When that party is a public or private corporation, a partnership, an association, or a governmental agency, the answers come from any officer or agent, who must furnish the information available to the party.16 An entity knows only what its people and files know, and no single officer holds all of it personally. The rule therefore measures the answer against what is available to the party, which is usually far more than the signer knows firsthand. The officer must collect information from the entity's employees and agents, including its lawyers, and an answer that reports ignorance after no such inquiry, the 'empty head' answer, is rarely proper from an institution.17
The signatures divide responsibility. The person who makes the answers signs them, and the attorney who objects signs any objections.18 Facts are known to the client or entity, so the signature and oath on the facts belong to the person who gathered them. Legal objections are judgments that counsel makes, so counsel signs those. The lawyer's signature on an objection vouches for nothing about the facts, and the officer's signature on the answers adopts no legal position about what the interrogatory may properly ask.
Rule 33(d) lets a responding party answer from its business records instead of writing the answer out. The option is available if the answer may be determined by examining, auditing, compiling, abstracting, or summarizing the party's business records, including electronically stored information, and the burden of deriving the answer will be substantially the same for either party.20 Some questions, such as the date of every shipment on a ledger, ask the responder to do clerical work that the asker could do as easily, and the option spares the responder that work when it depends on no superior knowledge. The equal-burden condition is the safeguard.
Two further conditions govern how the option is used. The response must specify the records in enough detail to enable the interrogating party to locate and identify them as readily as the responding party could, and it must give the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.21 Without the specification requirement, a party could point at a warehouse of files and shift the whole search to the asker while appearing to respond. Without the access requirement, the asker could not verify or use what the records show.
The two scenes differ on the equal-burden condition, and specification is a separate hurdle that even the distributor must clear. A response that says only 'see the records' fails even when the burden is equal, because the asker cannot locate the relevant records as readily as the responder could.
A sworn answer that was accurate when given can later become misleading. Rule 26(e)(1) therefore requires a party who has responded to an interrogatory to supplement or correct the response.23 The oath does not end with the first answer; the triggers and timing of this duty are covered elsewhere.
The split signatures can tempt a lawyer to treat a client's false answer as the client's problem, since counsel signs only the objections. The oath defeats that reasoning. A knowingly false answer is perjury, and the professional rules forbid a lawyer to misrepresent facts in litigation or to offer evidence the lawyer knows to be false.24
Both options are open to counsel.25 A lawyer who is uncomfortable with a truthful answer may soften its impact with explanation but may not change what the answer says.
Timing and Objections
Rule 33(b)(2) sets one clock for both answers and objections. The responding party must serve them within 30 days after being served with the interrogatories, and a shorter or longer time may be stipulated to under Rule 29 or ordered by the court.27 The period runs from service, so the recipient cannot wait for a reminder. Answers and objections share the deadline, so a party that plans to answer some questions and object to others must do both within the same 30 days. And 30 days is only a default: counsel can agree to more time for a long set, or the court can allow it in a complicated case.
A fixed period suits a device that runs without a judge. A date the requester can count on lets follow-up requests and depositions be scheduled around the answers without court involvement. It also tells the recipient how long it has to gather information, consult employees, and draft the sworn answers described above.
Rule 33(b)(4) governs what an objection must contain. The grounds must be stated with specificity, and any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.28 The specificity half guards against reflexive objections. A label such as 'overbroad and burdensome' tells the requester nothing about which words of the question reach too far or what burden answering would impose. A specific objection commits the responding party to its reasons at the outset, so the requester can rewrite the question to cure the problem or put a stated ground before the court.
Waiver does its work through reliance. A requester who hears nothing within the period may reasonably conclude that the recipient has no objection and plan around that conclusion. If the recipient could add reasons afterward, every deadline would be provisional.
The good-cause clause keeps the forfeiture from becoming a trap, because a recipient with a real reason for the lapse may ask the court to excuse it, and the decision belongs to the court. Without that excuse, a late objection preserves nothing.
An objection also has a limited reach. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath,29 so a party that objects to part of a question must answer the rest. The second defendant in the hypothetical did exactly that by withholding only the privileged communications. A requester who is dissatisfied with an objection, or with an incomplete or evasive answer, takes the dispute to the court and asks it to compel a proper response. The requester carries that burden because the requester wants the information and can tell the court what is missing.
The last point is the one that most often costs a party its protection. An objection exists only if it is stated. Claims of privilege or work product are proper objections to interrogatories, but they must be expressly stated with a proper foundation, and the Rules know no 'silent objection.'30 A recipient that answers some interrogatories and leaves others blank has neither answered nor objected to the blank ones. The same is true of a lawyer who privately believes a question reaches protected material but never says so within the 30 days: the belief produces no objection, and the time for stating one runs out.