LEXSTAT USCS FED RULES CIV PROC R 33
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FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
USCS Fed Rules Civ Proc R 33 (2004)
Review expert commentary from The National Institute for Trial Advocacy
Review Court Orders which may amend this Rule.
Rule 33. Interrogatories to Parties
(a) Availability. Without leave of court or written stipulation, any party may serve upon any other party written
interrogatories, not exceeding 25 in number including all discrete subparts, to be answered by the party served or, if the
party served is a public or private corporation or a partnership or association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party. Leave to serve additional interrogatories shall be
granted to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written stipulation,
interrogatories may not be served before the time specified in Rule 26(d).
(b) Answers and Objections.
(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which
event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not
objectionable.
(2) The answers are to be signed by the person making them, and the objections signed by the attorney making them.
(3) The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if
any, within 30 days after the service of the interrogatories. A shorter or longer time may be directed by the court or, in
the absence of such an order, agreed to in writing by the parties subject to Rule 29.
(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a
timely objection is waived unless the party's failure to object is excused by the court for good cause shown.
(5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to
or other failure to answer an interrogatory.
(c) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1), and
the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such
an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference
or other later time.
(d) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the
business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection
of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or
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USCS Fed Rules Civ Proc R 33
ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and
to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the
interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may
be ascertained.
HISTORY:
(Amended Mar. 19, 1948; July 1, 1970; Aug. 1, 1980; Dec. 1, 1993.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Other provisions:
Notes of Advisory Committee on Rules. This rule restates the substance of former Equity Rule 58
(Discovery--Interrogatories--Inspection and Production of Documents--Admission of Execution or Genuineness), with
modifications to conform to these rules.
Notes of Advisory Committee on 1946 amendments. The added second sentence in the first paragraph of Rule 33
conforms with a similar change in Rule 26(a) and will avoid litigation as to when the interrogatories may be served.
Original Rule 33 does not state the times at which parties may serve written interrogatories upon each other. It has been
the accepted view, however, that the times were the same in Rule 33 as those stated in Rule 26(a). United States v
American Solvents & Chemical Corp. of California (D Del (1939)) 30 F Supp 107; Sheldon v Great Lakes Transit
Corp. (WD NY 1942) 2 FRD 272, 5 Fed Rules Serv 33.11, Case 3; Musher Foundation, Inc. v Alba Trading Co. (SD NY
1941), 42 F Supp 281; 2 Moore's Federal Practice (1938), 2621. The time within which leave of court must be secured
by a plaintiff has been fixed at 10 days, in view of the fact that a defendant has 10 days within which to make objections
in any case, which should give him ample time to engage counsel and prepare.
Further in the first paragraph of Rule 33, the word "service" is substituted for "delivery" in conformance with the use
of the word "serve" elsewhere in the rule and generally throughout the rules. See also Note to Rule 13(a) herein. The
portion of the rule dealing with practice on objections has been revised so as to afford a clearer statement of the
procedure. The addition of the words "to interrogatories to which objection is made" insures that only the answers to the
objectionable interrogatories may be deferred, and that the answers to interrogatories not objectionable shall be
forthcoming within the time prescribed in the rule. Under the original wording, answers to all interrogatories may be
withheld until objections, sometimes to but a few interrogatories, are determined. The amendment expedites the
procedure of the rule and serves to eliminate the strike value of objections to minor interrogatories. The elimination of
the last sentence of the original rule is in line with the policy stated subsequently in this note.
The added second paragraph in Rule 33 contributes clarity and specificity as to the use and scope of interrogatories
to the parties. The field of inquiry will be as broad as the scope of examination under Rule 26(b). There is no reason
why interrogatories should be more limited than depositions, particularly when the former represent an inexpensive
means of securing useful information. See Hoffman v Wilson Line, Inc. ED Pa 1946, 9 Fed Rules Serv 33.514, Case 2;
Brewster v Technicolor, Inc. (SD NY 1941), 2 FRD 186, 5 Fed Rules Serv 33.319, Case 3; Kingsway Press, Inc. v
Farrell Publishing Corp. (SD NY 1939), 30 F Supp 775. Under present Rule 33 some courts have unnecessarily
restricted the breadth of inquiry on various grounds. See Auer v Hershey Creamery Co. D NJ 1939, 2 Fed Rules Serv
33.31, Case 2, 1 FRD 14; Tudor v Leslie, D Mass 1940, 1 FRD 448, 4 Fed Rules Serv 33.324, Case 1. Other courts have
read into the rule the requirement that interrogation should be directed only towards "important facts", and have tended
to fix a more or less arbitrary limit as to the number of interrogatories which could be asked in any case. See Knox v
Alter, WD Pa 1942, 2 FRD 337, 6 Fed Rules Serv 33.352, Case 1; Byers Theaters, Inc. v Murphy, WD Va 1940, 3 Fed
Rules Serv 33.31, Case 3, 1 FRD 286; Coca-Cola Co. v Dixi-Cola Laboratories, Inc. D Md 1939, 30 F Supp 275. See
also comment on these restrictions in Holtzoff, Instruments of Discovery Under Federal Rules of Civil Procedure, 1942,
41 Mich L Rev 205, 216-217. Under amended Rule 33, the party interrogated is given the right to invoke such protective
orders under Rule 30(b) as are appropriate to the situation. At the same time, it is provided that the number of or number
of sets of interrogatories to be served may not be limited arbitrarily or as a general policy to any particular number, but
that a limit may be fixed only as justice requires to avoid annoyance, expense, embarrassment or oppression in
individual cases. The party interrogated, therefore, must show the necessity for limitation on that basis. It will be noted
that in accord with this change the last sentence of the present rule, restricting the sets of interrogatories to be served,
has been stricken. In J. Schoeneman, Inc. v Brauer, WD Mo 1940, 1 FRD 292, 3 Fed Rules Serv 33.31, Case 2, the court
said: "Rule 33 . . . has been interpreted . . . as being just as broad in its implications as in the case of depositions . . . . It
makes no difference therefore, how many interrogatories are propounded. If the inquiries are pertinent the opposing
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USCS Fed Rules Civ Proc R 33
party cannot complain." To the same effect, see Canuso v City of Niagara Falls, WD NY 1945, 8 Fed Rules Serv 33.352,
Case 1; Hoffman v Wilson Line, Inc., supra.
By virtue of express language in the added second paragraph of Rule 33, as amended, any uncertainty as to the use of
the answers to interrogatories is removed. The omission of a provision on this score in the original rule has caused some
difficulty. See, e. g., Bailey v New England Mutual Life Ins. Co. SD Cal 1940, 1 FRD 494, 4 Fed Rules Serv 33.46, Case
1.
The second sentence of the second paragraph in Rule 33, as amended, concerns the situation where a party wishes to
serve interrogatories on a party after having taken his deposition, or vice versa. It has been held that an oral examination
of a party, after the submission to him and answer of interrogatories, would be permitted. Howard v State Marine Corp.
SD NY 1940, 4 Fed Rules Serv 33.62, Case 1, 1 FRD 499; Stevens v Minder Construction Co. SD NY 1943, 3 FRD 498,
7 Fed Rules Serv 30b.31, Case 2. But objections have been sustained to interrogatories served after the oral deposition
of a party had been taken. McNally v Simons, SD NY 1940, 3 Fed Rules Serv 33.61, Case 1, 1 FRD 254; Currier v
Currier, SD NY 1942, 3 FRD 21, 6 Fed Rules Serv 33.61, Case 1. Rule 33, as amended, permits either interrogatories
after a deposition or a deposition after interrogatories. It may be quite desirable or necessary to elicit additional
information by the inexpensive method of interrogatories where a deposition has already been taken. The party to be
interrogated, however, may seek a protective order from the court under Rule 30(b) where the additional deposition or
interrogation works a hardship or injustice on the party from whom it is sought.
Notes of Advisory Committee on 1970 amendments. Subdivision (a). The mechanics of the operation of Rule 33 are
substantially revised by the proposed amendment, with a view to reducing court intervention. There is general
agreement that interrogatories spawn a greater percentage of objections and motions than any other discovery device.
The Columbia Survey shows that, although half of the litigants resorted to depositions and about one-third used
interrogatories, about 65 percent of the objections were made with respect to interrogatories and 26 percent related to
depositions. See also Speck, the Use of Discovery in the United States District Courts, 60 Yale L J 1132, 1144, 1151
(1951); Note, 36 Minn L Rev 364, 379 (1952).
The procedures now provided in Rule 33 seem calculated to encourage objections and court motions. The time
periods now allowed for responding to interrogatories--15 days for answers and 10 days for objections--are too short.
The Columbia Survey shows that tardy response to interrogatories is common, virtually expected. The same was
reported in Speck, supra, 60 Yale L J 1132, 1144. The time pressures tend to encourage objections as a means of
gaining time to answer.
The time for objections is even shorter than for answers, and the party runs the risk that if he fails to object in time he
may have waived his objections. E.g., Cleminshaw v Beech Aircraft Corp. 21 FRD 300 (D Del 1957); see 4 Moore's
Federal Practice, P 33.27 (2d ed 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 372-373 (Wright ed
1961). It often seems easier to object than to seek an extension of time. Unlike Rules 30(d) and 37(a), Rule 33 imposes
no sanction of expenses on a party whose objections are clearly unjustified.
Rule 33 assures that the objections will lead directly to court, through its requirement that they be served with a
notice of hearing. Although this procedure does not preclude an out-of-court resolution of the dispute, the procedure
tends to discourage informal negotiations. If answers are served and they are thought inadequate, the interrogating party
may move under Rule 37(a) for an order compelling adequate answers. There is no assurance that the hearing on
objections and that on inadequate answers will be heard together.
The amendment improves the procedure of Rule 33 in the following respects:
(1) The time allowed for response is increased to 30 days and this time period applies to both answers and
objections, but a defendant need not respond in less than 45 days after service of the summons and complaint upon him.
As is true under existing law, the responding party who believes that some parts or all of the interrogatories are
objectionable may choose to seek a protective order under new Rule 26(c) or may serve objections under this rule.
Unless he applies for a protective order, he is required to serve answers or objections in response to the interrogatories,
subject to the sanctions provided in Rule 37(d). Answers and objections are served together, so that a response to each
interrogatory is encouraged, and any failure to respond is easily noted.
(2) In view of the enlarged time permitted for response, it is no longer necessary to require leave of court for
service of interrogatories. The purpose of this requirement--that defendant have time to obtain counsel before a response
must be made--is adequately fulfilled by the requirement that interrogatories be served upon a party with or after service
of the summons and complaint upon him.
Some would urge that the plaintiff nevertheless not be permitted to serve interrogatories with the complaint. They
fear that a routine practice might be invited, whereby form interrogatories would accompany most complaints. More
fundamentally, they feel that, since very general complaints are permitted in present-day pleading, it is fair that the
defendant have a right to take the lead in serving interrogatories. (These views apply also to Rule 36.) The amendment
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USCS Fed Rules Civ Proc R 33
of Rule 33 rejects these views, in favor of allowing both parties to go forward with discovery, each free to obtain the
information he needs respecting the case.
(3) If objections are made, the burden is on the interrogating party to move under Rule 37(a) for a court order
compelling answers, in the course of which the court will pass on the objections. The change in the burden of going
forward does not alter the existing obligation of an objecting party to justify his objections. E.g., Pressley v Boehlke, 33
FRD 316 (WD NC 1963). If the discovering party asserts that an answer is incomplete or evasive, again he may look to
Rule 37(a) for relief, and he should add this assertion to his motion to overrule objections. There is no requirement that
the parties consult informally concerning their differences, but the new procedure should encourage consultation, and
the court may by local rule require it.
The proposed changes are similar in approach to those adopted by California in 1961. See Calif Code Civ Proc §
2030(a). The experience of the Los Angeles Superior Court is informally reported as showing that the California
amendment resulted in a significant reduction in court motions concerning interrogatories. Rhode Island takes a similar
approach. See R 33, RIR Civ Proc Official Draft, p 74 (Boston Law Book Co.).
A change is made in subdivision (a) which is not related to the sequence of procedures. The restriction to "adverse"
parties is eliminated. The courts have generally construed this restriction as precluding interrogatories unless an issue
between the parties is disclosed by the pleadings--even though the parties may have conflicting interests. E.g., Mozeika
v Kaufman Construction Co. 25 FRD 233 (ED Pa 1960) (plaintiff and third-party defendant); Biddle v Hutchinson, 24
FRD 256 (MD Pa 1959) (co-defendants). The resulting distinctions have often been highly technical. In Schlagenhauf v
Holder, 379 US 104 (1964), the Supreme Court rejected a contention that examination under Rule 35 could be had only
against an "opposing" party, as not in keeping "with the aims of a liberal, nontechnical application of the Federal
Rules." 379 US at 116. Eliminating the requirement of "adverse" parties from Rule 33 brings it into line with all other
discovery rules.
A second change in subdivision (a) is the addition of the term "governmental agency" to the listing of organizations
whose answers are to be made by any officer or agent of the organization. This does not involve any change in existing
law. Compare the similar listing in Rule 30(b)(6).
The duty of a party to supplement his answers to interrogatories is governed by a new provision in Rule 26(e).
Subdivision (b). There are numerous and conflicting decisions on the question whether and to what extent
interrogatories are limited to matters "of fact," or may elicit opinions, contentions, and legal conclusions. Compare, e.g.,
Payer, Hewitt & Co. v Bellanca Corp. 26 FRD 219 (D Del 1960) (opinions bad); Zinsky v New York Central R.R. 36
FRD 680 (ND Ohio 1964) (factual opinion or contention good, but legal theory bad); United States v Carter Products,
Inc. 28 FRD 373 (SD NY 1961) (factual contentions and legal theories bad) with Taylor v Sound Steamship Lines, Inc.
100 F Supp 388 (D Conn 1951) (opinions good); Bynum v United States, 36 FRD 14 (ED La 1964) (contentions as to
facts constituting negligence good). For lists of the many conflicting authorities, see 4 Moore's Federal Practice P 33.17
(2d ed 1966); 2A Barron & Holtzoff, Federal Practice and Procedure § 768 (Wright ed 1961).
Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or
contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions
have invariably been unsuccessful, and the clear trend of the cases is to permit "factual" opinions. As to requests for
opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening
the issues, which is a major purpose of discovery. See Diversified Products Corp. v Sports Center Co. 42 FRD 3 (D Md
1967); Moore, supra; Field & McKusick, Maine Civil Practice § 26.18 (1959). On the other hand, under the new
language interrogatories may not extend to issues of "pure law," i.e., legal issues unrelated to the facts of the case. Cf.
United States v Maryland & Va. Milk Producers Assn., Inc. 22 FRD 300 (D DC 1958).
Since interrogatories involving mixed questions of law and fact may create disputes between the parties which are
best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an
answer. Likewise, the court may delay determination until pretrial conference, if it believes that the dispute is best
resolved in the presence of the judge.
The principal question raised with respect to the cases permitting such interrogatories is whether they reintroduce
undesirable aspects of the prior pleading practice, whereby parties were chained to misconceived contentions or
theories, and ultimate determination on the merits was frustrated. See James, The Revival of Bills of Particulars under
the Federal Rules, 71 Harv L Rev 1473 (1958). But there are few if any instances in the recorded cases demonstrating
that such frustration has occurred. The general rule governing the use of answers to interrogatories is that under ordinary
circumstances they do not limit proof. See, e.g., McElroy v United Air Lines, Inc. 21 FRD 100 (WD Mo 1967); Pressley
v Boehlke, 33 FRD 316, 317 (WD NC 1963). Although in exceptional circumstances reliance on an answer may cause
such prejudice that the court will hold the answering party bound to his answer, e.g., Zielinski v Philadelphia Piers, Inc.
139 F Supp 408 (ED Pa 1956), the interrogating party will ordinarily not be entitled to rely on the unchanging character
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of the answers he receives and cannot base prejudice on such reliance. The rule does not affect the power of a court to
permit withdrawal or amendment of answers to interrogatories.
The use of answers to interrogatories at trial is made subject to the rules of evidence. The provisions governing use
of depositions, to which Rule 33 presently refers, are not entirely apposite to answers to interrogatories, since deposition
practice contemplates that all parties will ordinarily participate through cross-examination. See 4 Moore's Federal
Practice P 33.29[1] (2d ed 1966).
Certain provisions are deleted from subdivision (b) because they are fully covered by new Rule 26(c) providing for
protective orders and Rules 26(a) and 26(d). The language of the subdivision is thus simplified without any change of
substance.
Subdivision (c). This is a new subdivision, adapted from Calif Code Civ Proc § 2030(c), relating especially to
interrogatories which require a party to engage in burdensome or expensive research into his own business records in
order to give an answer. The subdivision gives the party an option to make the records available and place the burden of
research on the party who seeks the information. "This provision, without undermining the liberal scope of interrogatory
discovery, places the burden of discovery upon its potential benefitee," Louisell, Modern California Discovery, 124-125
(1963), and alleviates a problem which in the past has troubled Federal courts. See Speck, The Use of Discovery in
United States District Courts, 60 Yale LJ 1132, 1142-1144 (1951). The interrogating party is protected against abusive
use of this provision through the requirement that the burden of ascertaining the answer be substantially the same for
both sides. A respondent may not impose on an interrogating party a mass of records as to which research is feasible
only for one familiar with the records. At the same time, the respondent unable to invoke this subdivision does not on
that account lose the protection available to him under new Rule 26(c) against oppressive or unduly burdensome or
expensive interrogatories. And even when the respondent successfully invokes the subdivision, the court is not deprived
of its usual power, in appropriate cases, to require that the interrogating party reimburse the respondent for the expense
of assembling his records and making them intelligible.
Notes of Advisory Committee on 1980 amendments. Subdivision (c). The Committee is advised that parties upon
whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business
records or by offering to make all of their records available, justifying the response by the option provided by this
subdivision. Such practices are an abuse of the option. A party who is permitted by the terms of this subdivision to offer
records for inspection in lieu of answering an interrogatory should offer them in a manner that permits the same direct
and economical access that is available to the party. If the information sought exists in the form of compilations,
abstracts or summaries then available to the responding party, those should be made available to the interrogating party.
The final sentence is added to make it clear that a responding party has the duty to specify, by category and location, the
records from which answers to interrogatories can be derived.
Effective date of 1980 amendments. Section 2 of the Order of April 29, 1980, 446 US 995, 64 L Ed 2d xlv, -- S Ct --,
which adopted the 1980 amendments to this Rule, provided: "That the foregoing amendments to the Federal Rules of
Civil Procedure shall take effect on August 1, 1980, and shall govern all civil proceedings thereafter commenced and,
insofar as just and practicable, all proceedings then pending.".
Committee notes. Purpose of Revision. The purpose of this revision is to reduce the frequency and increase the
efficiency of interrogatory practice. The revision is based on experience with local rules. To facilitate reference,
subdivision (a) is divided into two paragraphs.
Subdivision (a). Revision of this subdivision limits interrogatory practice. Because Rule 26(a)(1)-(3) requires
disclosure of much of the information previously obtained by this form of discovery, there should be less occasion to
use it. Experience in over half of the district courts has confirmed that limitations on the number of interrogatories are
useful and manageable. Moreover, because the device can be costly and may be used as a means of harassment, it is
desirable to subject to its use to the control of the court consistent with the principles stated in Rule 26(b)(2).
Each party is allowed to serve 15 interrogatories, but must secure leave of court (or a stipulation from the opposing
party) to serve a larger number. Parties cannot evade this presumptive limitation by using "subparts" seeking discrete
information. As with the number of depositions authorized by Rule 30, leave to pursue additional discovery is to be
allowed when consistent with Rule 26(b)(2). The aim is not to prevent needed discovery, but to provide judicial
scrutiny before parties make potentially excessive use of this discovery. In many cases it will be appropriate for the
court to permit a larger number of interrogatories in the scheduling order entered under Rule 16(b).
Unless leave of court is obtained, interrogatories may not be served unless the requesting party has made its initial
disclosures under Rule 26(a)(1), nor prior to the time that such disclosures have been made, or are due, from the
opposing party.
When a case with outstanding interrogatories exceeding the number permitted by this rule is removed to federal
court, the interrogating party must seek leave allowing the additional interrogatories, specify which fifteen are to be
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answered, or resubmit interrogatories that comply with the rule. See Rule 81(c), providing that these rules govern
procedures after removal.
Subdivision (b). A separate subdivision is made of the former second paragraph of subdivision (a). Language is
added to paragraph (1) of this subdivision to emphasize the duty of the responding party to provide full answers to the
extent not objectionable. If, for example, an interrogatory seeking information about numerous facilities or products is
deemed objectionable, but an interrogatory seeking information about a lesser number of facilities or products would
not have been objectionable, the interrogatory should be answered with respect to the latter even though an objection is
raised as to the balance of the facilities or products. Similarly, the fact that additional time may be needed to respond
to some questions (or to some aspects of questions) should not justify a delay in responding to those questions (or other
aspects of questions) that can be answered within the prescribed time.
Paragraph (4) is added to make clear that objections must be specifically justified, and that unstated or untimely
grounds for objection ordinarily are waived. Note also the provisions of revised Rule 26(b)(5) which require a
responding party to indicate when it is withholding information under a claim of privilege or as trial preparation
materials.
These provisions should be read in light of Rule 26(g) authorizing the court to impose sanctions on a party and
attorney making an unfounded objection to an interrogatory.
Notes of Advisory Committee on 1993 amendments. Purpose of revision. The purpose of this revision is to reduce
the frequency and increase the efficiency of interrogatory practice. The revision is based on experience with local
rules. For ease of reference, subdivision (a) is divided into two subdivisions and the remaining subdivisions
renumbered.
Subdivision (a). Revision of this subdivision limits interrogatory practice. Because Rule 26(a)(1)-(3) requires
disclosure of much of the information previously obtained by this form of discovery, there should be less occasion to
use it. Experience in over half of the district courts has confirmed that limitations on the number of interrogatories are
useful and manageable. Moreover, because the device can be costly and may be used as a means of harassment, it is
desirable to subject its use to the control of the court consistent with the principles stated in Rule 26(b)(2), particularly
in multi-party cases where it has not been unusual for the same interrogatory to be propounded to a party by more than
one of its adversaries.
Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or a stipulation
from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device
of joining as "subparts" questions that seek information about discrete separate subjects. However, a question asking
about communications of a particular type should be treated as a single interrogatory even though it requests that the
time, place, persons present, and contents be stated separately for each such communication.
As with the number of depositions authorized by Rule 30, leave to serve additional interrogatories is to be allowed
when consistent with Rule 26(b)(2). The aim is not to prevent needed discovery, but to provide judicial scrutiny before
parties make potentially excessive use of this discovery device. In many cases it will be appropriate for the court to
permit a larger number of interrogatories in the scheduling order entered under Rule 16(b).
Unless leave of court is obtained, interrogatories may not be served prior to the meeting of the parties under Rule
26(f).
When a case with outstanding interrogatories exceeding the number permitted by this rule is removed to federal
court, the interrogating party must seek leave allowing the additional interrogatories, specify which twenty-five are to
be answered, or resubmit interrogatories that comply with the rule. Moreover, under Rule 26(d), the time for response
would be measured from the date of the parties' meeting under Rule 26(f). See Rule 81(c), providing that these rules
govern procedures after removal.
Subdivision (b). A separate subdivision is made of the former second paragraph of subdivision (a). Language is
added to paragraph (1) of this subdivision to emphasize the duty of the responding party to provide full answers to the
extent not objectionable. If, for example, an interrogatory seeking information about numerous facilities or products is
deemed objectionable, but an interrogatory seeking information about a lesser number of facilities or products would
not have been objectionable, the interrogatory should be answered with respect to the latter even though an objection is
raised as to the balance of the facilities or products. Similarly, the fact that additional time may be needed to respond
to some questions (or to some aspects of questions) should not justify a delay in responding to those questions (or other
aspects of questions) that can be answered within the prescribed time.
Paragraph (4) is added to make clear that objections must be specifically justified, and that unstated or untimely
grounds for objection ordinarily are waived. Note also the provisions of revised Rule 26(b)(5), which require a
responding party to indicate when it is withholding information under a claim of privilege or as trial preparation
materials.
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USCS Fed Rules Civ Proc R 33
These provisions should be read in light of Rule 26(g), authorizing the court to impose sanctions on a party and
attorney making an unfounded objection to an interrogatory.
Subdivisions (c) and (d). The provisions of former subdivisions (b) and (c) are renumbered.
NOTES:
CROSS REFERENCES
This rule is referred to in USCS Rules of Civil Procedure, Rule 6.
RESEARCH GUIDE
Federal Procedure:
MFEDPR5.02USCSTREAT, MFEDPR5.33USCSTREAT.
MFEDPR6.06USCSTREAT.
MFEDPR16.33USCSTREAT, MFEDPR16.36USCSTREAT.
MFEDPR26.25USCSTREAT, MFEDPR26.41USCSTREAT, MFEDPR26.60USCSTREAT,
MFEDPR26.131USCSTREAT, MFEDPR26.152USCSTREAT.
MFEDPR29.04USCSTREAT.
MFEDPR30.02USCSTREAT, MFEDPR30.03USCSTREAT.
MFEDPR31.02USCSTREAT.
MFEDPR33.02USCSTREAT, MFEDPR33.05USCSTREAT, MFEDPR33.06USCSTREAT,
MFEDPR33.20USCSTREAT, MFEDPR33.30USCSTREAT, MFEDPR33.31USCSTREAT, MFEDPR33.40USCSTREAT,
MFEDPR33.41USCSTREAT, MFEDPR33.60USCSTREAT, MFEDPR33.62USCSTREAT,
MFEDPR33.72USCSTREAT-,MFEDPR33.74USCSTREAT, MFEDPR33.78USCSTREAT, MFEDPR33.79USCSTREAT,
MFEDPR33.100USCSTREAT, MFEDPR33.101USCSTREAT, MFEDPR33.104USCSTREAT,
MFEDPR33.105USCSTREAT, MFEDPR33.107USCSTREAT, MFEDPR33.120USCSTREAT,
MFEDPR33.122USCSTREAT-,MFEDPR33.124USCSTREAT, MFEDPR33.160USCSTREAT,
MFEDPR33.170USCSTREAT-,MFEDPR33.174USCSTREAT.
MFEDPR34.02USCSTREAT, MFEDPR34.03USCSTREAT, MFEDPR34.11USCSTREAT.
MFEDPR37.02USCSTREAT.
MFEDPR37A.21USCSTREAT.
MFEDPR83.02USCSTREAT.
MFEDPR517.09USCSTREAT.
CIPES633.21USCSTREAT.
WEUSR900.05USCSTREAT.
WEUSR1007.07USCSTREAT.
7A Fed Proc L Ed, Court of Claims § 19:197.
8 Fed Proc L Ed, Criminal Procedure § 22:34.
10 Fed Proc L Ed, Discovery and Depositions § § 26:7, 9, 17, 19, 102, 135, 199, 322, 361-435.
10A Fed Proc L Ed, Discovery and Depositions § § 26:444, 508, 509, 581, 611, 621, 622, 679, 690, 699, 706, 721,
727.
12A Fed Proc L Ed, Evidence § § 33:414, 539, 578, 642.
15 Fed Proc L Ed, Freedom of Information § 38:513.
21 Fed Proc L Ed, Job Discrimination § 50:943.
22A Fed Proc L Ed, Labor and Labor Relations § 52:1750.
23A Fed Proc L Ed, Monopolies and Restraints of Trade § § 54:307, 308, 313.
27 Fed Proc L Ed, Pleadings and Motions § § 62:52, 55, 115.
27A Fed Proc L Ed, Pleadings and Motions § § 62:423, 701, 723.
28 Fed Proc L Ed, Pretrial Procedure § § 64:10, 11.
32 Fed Proc L Ed, Trademarks § 74:268.
Am Jur:
DEPO_DISC2, DEPO_DISC12, DEPO_DISC15, DEPO_DISC116, DEPO_DISC118, DEPO_DISC121,
DEPO_DISC122, DEPO_DISC124, DEPO_DISC125, DEPO_DISC128, DEPO_DISC129, DEPO_DISC134,
DEPO_DISC136, DEPO_DISC137.
Eminent_Domain546.
Evidence806, Evidence1040, Evidence1189.
Page 8
USCS Fed Rules Civ Proc R 33
EXECUTIONS_ENFORCEMENT714, EXECUTIONS_ENFORCEMENT715.
Federal_Courts2108, Federal_Courts2110.
Job_Discrimination2340.
Labor_Labor_Relations3675, Labor_Labor_Relations4596, Labor_Labor_Relations4602.
MONOPOLIES548, MONOPOLIES549.
New_Trial441, New_Trial444.
PRETRIAL27.
PRIV_FRANCH847, PRIV_FRANCH848.
SECUR_REG_FED489.
SECUR_REG_FED1251.
Veterans_Veterans_Laws93.
Am Jur Trials:
4 Am Jur Trials, Discovery--Written Interrogatories, p. 1.
15 Am Jur Trials, Police Misconduct Litigation--Plaintiff's Remedies, p. 555.
19 Am Jur Trials, Handling a Rear-End Collision Case, p. 567.
20 Am Jur Trials, Damages for Wrongful Death of, or Injury to, Child, p. 513.
21 Am Jur Trials, Employment Discrimination Action Under Federal Civil Rights Acts, p. 1.
21 Am Jur Trials, Franchise Litigation, p. 453.
75 Am Jur Trials, Age Discrimination in Employment Action Under ADEA, p. 363.
78 Am Jur Trials, Pharmacist Malpractice: Trial and Litigation Strategy, p. 407.
79 Am Jur Trials, Premises Liability--Trip and Fall, p. 285.
82 Am Jur Trials, Defending Against Claim of Ineffective Assistance of Counsel, p. 1.
82 Am Jur Trials, Snowmobile Litigation: Practice And Strategy, p. 123.
82 Am Jur Trials, Handling Aviation Disaster Cases, p. 243.
83 Am Jur Trials, Automobile Airbag Malfunction Litigation: Practice and Strategy, p. 1.
88 Am Jur Trials, Tort Liability for Sexually Transmitted Disease, p. 153.
88 Am Jur Trials, Resolving Real Estate Broker's Disputes, p. 321.
89 Am Jur Trials, Fitness Club and Health Spa Injuries, p. 405.
Am Jur Proof of Facts:
59 Am Jur Proof of Facts 3d, Proof of Personal Jurisdiction in the Internet Age, p. 1.
59 Am Jur Proof of Facts 3d, Proof of Automobile Design Defect, p. 73.
60 Am Jur Proof of Facts 3d, Proof of Identification of Hit-and-Run Vehicle and Driver, p. 91.
61 Am Jur Proof of Facts 3d, Liability of a Physician for Improper Referral of Patients to a Medical Care-Facility in
which the Physician has a Financial Interest, p. 245.
63 Am Jur Proof of Facts 3d, Proof of Copyright Infringement by File Sharing, p. 1.
64 Am Jur Proof of Facts 3d, Topic: Proof of Objections to Discharge of Individual Debtor Under 11 U.S.C.A. §
727(A) [11 USCS § 727(A)] and Fed. R. Bankr. P. 7001 in a Liquidation Bankruptcy Case Under Chapter 7 of the
Bankruptcy Code [11 USCS § § 701 et seq.], p. 113.
66 Am Jur Proof of Facts 3d, Liability of Health Maintenance Organizations, p. 1.
66 Am Jur Proof of Facts 3d, Proof That A Teacher's License Was Improperly Revoked: Teacher's Damages and
Emotional Distress Award, p. 541.
70 Am Jur Proof of Facts 3d, Proof That a Government Agency Was Liable For Improperly Granting a Bid Award to
a Bid Applicant, p. 97.
Forms:
5 Fed Procedural Forms L Ed, Civil Rights (1996) § 10:158.
5A Fed Procedural Forms L Ed, Condemnation of Property (2000) § § 13:63, 64.
6A Fed Procedural Forms L Ed, Contempt (2003) § 16:68.
8 Fed Procedural Forms L Ed, Discovery and Depositions (2001) § § 23:39, 23:326-23:333, 23:335-23:359,
23:361-23:366.
9 Fed Procedural Forms L Ed, Employers' Liability Acts (1999) § § 27:69, 125-131.
9 Fed Procedural Forms L Ed, Enforcement of Judgments (1999) § § 28:109-112.
9A Fed Procedural Forms L Ed, Food, Drugs, and Cosmetics (1999) § 31:211.
Page 9
USCS Fed Rules Civ Proc R 33
12 Fed Procedural Forms L Ed, Job Discrimination (1998) § § 45:145-151.
12A Fed Procedural Forms L Ed, Labor and Labor Relations (1998) § 46:333.
12B Fed Procedural Forms L Ed, Maritime Law and Procedure (2000) § § 47:126, 127.
12B Fed Procedural Forms L Ed, Monopolies and Restraints of Trade (2000) § § 48:187-191.
14A Fed Procedural Forms L Ed, Securities Regulation (2004) § 59:418.
15 Fed Procedural Forms L Ed, Statutes of Limitation, and Other Time Limits (2002) § 61:66.
16 Fed Procedural Forms L Ed, Trade Regulation and Unfair Trade Practices (2001) § 65:319.
16A Fed Procedural Forms L Ed, Veterans and Veterans' Laws § 68:133.
1B Am Jur Pl & Pr Forms (2003), Admiralty § 129.
8A Am Jur Pl & Pr Forms (2004), Deposition and Discovery, § § 353, 356, 357, 359, 360, 362, 363, 383, 401-430,
432, 433, 630, 631, 633-635, 638, 697, 698.
10 Am Jur Pl & Pr Forms (1996), Executions, § 496.
11A Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § § 888-899.
11B Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § 1471.
16 Am Jur Pl & Pr Forms (2000), Labor and Labor Relations, § 271.
23B Am Jur Pl & Pr Forms (2002), Trial, § 11.
Annotations:
Application, in federal civil action, of governmental privilege of nondisclosure of identity of informer. 8 ALR Fed
6.
Discovery, under Federal Rules of Civil Procedure, in actions brought by private plaintiffs under equal employment
opportunity provisions of Civil Rights Act of 1964, as amended (42 USCS § § 2000e et seq.). 31 ALR Fed 657.
Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by
opponent. 13 ALR3d 1312.
Discovery and inspection: compelling party to disclose information in hands of affiliated or subsidiary corporation,
or independent contractor, not made party to suit. 19 ALR3d 1134.
Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness. 23 ALR3d 389.
Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories. 56 ALR3d 1109.
Statements of parties or witnesses as subject of pretrial or other disclosure, production, or inspection. 73 ALR2d 12.
Time for filing and serving discovery interrogatories. 74 ALR2d 534.
Pretrial deposition--discovery of opinions of opponent's expert witnesses. 86 ALR2d 138.
Propriety of discovery interrogatories calling for continuing answers. 88 ALR2d 657.
Texts:
Danner, Pattern Discovery: Employment Discrimination.
Danner, Pattern Discovery: Securities.
Schweitzer, Cyclopedia of Trial Practice (2d ed).
Law Review Articles:
Interrogatories--to answer or not to answer, that is the question: a practical guide to Federal Rule of Civil Procedure
33, 1997 Army Law 38, August 1997.
Westen; Westin. Constitutional Law of Remedies for Broken Plea Bargains. 66 Cal L Rev 471, May 1978.
Palmeri; Quinn. Work product in subsequent litigation: the Tenth Circuit enters the fray. 27 Colo Law 79, July
1998.
Federal Discovery Rules: Effects of the 1970 Amendments. 8 Columbia J of L & Social Problems 623.
Panzer. New Federal Discovery Rules in Civil Cases. 37 DC Bar J 49.
Smith; Kelleher, Dealing with the EEO Officer Who Files A Discrimination Complaint. 8 Employee Relations L J
92, Summer 1982.
Maciszewski. Pretrial Discovery: Change in the Federal Rule. 7 Hawaii Bar J 48.
Johnston. Discovery in Illinois and Federal Courts. 15 John Marshall L Rev 1, Winter 1982.
Sales. Discovery Problems in Aviation Litigation. 38 Journal of Air L & Commerce 101.
Thomas; Goheen; Vasos. Changes in Federal Rules of Civil Procedure Relating to Depositions, Interrogatory
Practice and Request. 40 Journal of Bar Asso of State of Kan 127.
Swartz. New Federal Rules on Discovery. 55 Mass LQ 345.
Mullins. Using Interrogatories Properly. 29 Prac Law 59, December 1983.
Page 10
USCS Fed Rules Civ Proc R 33
Cohen. Expert witness discovery versus the work product doctrine: choosing a winner in government contracts
litigation. 27 Pub Cont L J 719, Summer 1998.
A symposium on the 1993 amendments to the Federal Rules of Civil Procedure. 29 Tort & Ins LJ 467, Spring 1994.
Groves. Depositions and interrogatories under the Federal Rules of Civil Procedure: before and after the 1993
amendments. 29 Tort & Ins LJ 483, Spring 1994 .
Wilson. Rules Pertaining to Discoverability of Expert Opinion Evidence in Federal Court. 27 Tr Law Guide 411,
Fall 1983.
Graham. Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical
Study. 1976 U Ill L F 895.
INTERPRETIVE NOTES AND DECISIONS
I. GENERAL MATTERS
1. Generally
2. Purpose
3. --Ascertain facts and procure evidence
4. --Narrow issues
5. --Reduce possibility of surprise
6. --Facilitate disposition of case prior to trial
7. --Obtain admissions
8. --Expedite trial
9. --Ascertain party's contentions
10. --Relieve parties from cost of proving facts
11. Construction
12. --Discretion of court
13. Relationship with other rules
14. --Depositions [FRCivP Rule 27]
15. --Copies of documents [FRCivP Rule 34]
16. Use of multiple methods of discovery
17. Proceedings for post-judgment relief
18. Habeas corpus proceedings
19. Miscellaneous
II. SERVING INTERROGATORIES
A. Time Considerations
20. Generally
21. Extension or reduction of time
22. Other particular circumstances
B. Form
23. Generally
24. Ambiguous questions
25. Argumentative questions
26. Broad or general questions
27. Frivolous questions
28. Incomplete sentences
29. Interrogatories filed against several parties
30. Requesting continuing answers
31. Repetitious questions
32. Requests for affirmative action
33. Requests for identity of persons assisting with preparation of answers
34. Questions requiring research
35. Use of definitions
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USCS Fed Rules Civ Proc R 33
C. Number
36. Generally
37. Particular circumstances
III. ANSWERS
A. Time to Answer
38. Generally
39. Extension of time
40. Reduction of time
B. Nature of Duty to Answer
41. Generally
42. Duty to conduct research
43. Duty to supply written instruments
44. Duty to supplement answers
45. Recollection as opposed to belief
46. Conflicting answers
47. Effect of answers
48. Miscellaneous
C. Sufficiency of Answers
1. In General
49. Generally
50. Evasive, cryptic or deceptive answers
51. Lack of personal knowledge
52. --By corporation
53. References to other answers, complaints, documents and the like
54. Joint answers
2. Particular Cases
55. Antitrust
56. Contracts
57. Insurance
58. Negligence
59. Patents
60. Taxation
61. Miscellaneous
D. Refusal or Failure to Answer
1. In General
62. Generally
63. Effect of failure to answer
2. Grounds for Failure of Refusal to Answer
64. Generally
65. Embarrassment or disgrace
66. Lack of knowledge
67. --Corporations
68. --Information within knowledge of attorney
69. Self-incrimination
70. Miscellaneous
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USCS Fed Rules Civ Proc R 33
E. Answering Party
71. Generally
72. Corporations
73. --Necessity of serving officer expected to answer
74. --Attorney
75. --Comptroller
76. --Employees as "agents"
77. Interrogating party's designating person to answer
78. Members of class in class action
79. Municipal corporations
80. Next friend
81. President
82. Third-party defendants
83. United States
F. Signing and Verification
84. Generally
85. Next friend
86. Attorney
87. --For corporation
IV. OBJECTIONS TO INTERROGATORIES; PROCEDURAL MATTERS
88. Generally
89. Timely objection required
90. --Extension of time
91. Burden of proof
92. Specific objections required
93. Waiver
94. --By answering
95. --By untimely objection
V. GROUNDS FOR OBJECTING TO INTERROGATORIES
A. Scope
96. Generally
97. Basis of allegation
98. Jurisdictional questions
99. Identification of witnesses to be called at trial
100. Statements of witnesses
101. Information relating to interrogating party's own case
102. Information on adversary's case
103. Information within knowledge of interrogating party
104. Matters of public record
105. Previously supplied information
106. Previously stipulated information
107. "Fishing expedition"
108. Matters pre-dating applicable statute of limitations
109. Post-complaint information
110. Opinions, contentions, and conclusions
111. --Particular circumstances
112. Information about documents
113. Admissions against interest
114. Privileged information
115. Damages
116. Criminal records
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USCS Fed Rules Civ Proc R 33
117. Medical records
118. Business records
119. Patent information
120. Information on trademarks and copyrights
121. Miscellaneous
B. Burdensome or Oppressive
122. Generally
123. Source of information sought as criterion
124. Necessity of showing how interrogatory would be burdensome
125. Excessive costs
126. Extensive listing of information required
127. Compilation of data and research required
128. Particular circumstances
129. Questions overly broad
130. Inquiries or investigations required
131. Comprehensive outline of legal theories requested
132. Question ambiguous or vague
133. Existence of reasonable alternative discovery method
134. Miscellaneous
C. Other Grounds
135. Generally
136. Prematurity
137. Tardiness
138. Hearsay
139. Requiring answer based on false hypothesis
140. Speculation
141. Requiring summaries
142. Requiring analysis of facts
143. Design to frustrate cross-examination
144. Identical cross-interrogatory
145. Required answer as limiting proof
VI. USE OF INTERROGATORIES OR ANSWERS
146. Generally
147. Substitute for trial
148. Impeachment
149. Admissions
150. Evidence
151. Motion for summary judgment
152. Maneuvering other party into unfavorable position
153. Pleading
VII. OPTION TO PRODUCE BUSINESS RECORDS
154. Generally
155. Interrogated party not required to sort material
156. Option unavailable when documents contain insufficient information
157. Miscellaneous
I. GENERAL MATTERS
1. Generally
While it is true that discovery against absentee class members under USCS Rules of Civil Procedure 33 and 34
cannot be had as matter of course, overwhelming majority of courts which have considered scope of discovery against
Page 14
USCS Fed Rules Civ Proc R 33
absentees have concluded that such discovery is available, at least when information requested is relevant to decision of
common questions, when interrogatories or document requests are tendered in good faith and are not unduly
burdensome, and when information is not available from representative parties. Dellums v Powell (1977) 184 US App
DC 275, 566 F2d 167, 24 FR Serv 2d 20, cert den (1978) 438 US 916, 57 L Ed 2d 1161, 98 S Ct 3146, 98 S Ct 3147, reh
den (1978) 439 US 886, 58 L Ed 2d 201, 99 S Ct 234.
Desired information which is not necessary to enable a party to prepare his responsive pleading should be obtained
by interrogatories or depositions. Snowhite v Tide Water Associated Oil Co. (1941, DC NJ) 40 F Supp 739; Craftsman
Finance & Mortg. Co. v Brown (1945, DC NY) 64 F Supp 168; Forstmann v Wenner-Gren (1941, DC NY) 1 FRD 775;
Cole v Allen (1942, DC NY) 3 FRD 236, 58 USPQ 56.
After joinder of issue, parties may obtain information necessary to prepare for trial through interrogatories or by
discovery. Riegel v Hygrade Seed Co. (1942, DC NY) 47 F Supp 290.
In considering right of party to serve interrogatories, consideration must be given to the particular nature of the
action. United States v Matles (1956, DC NY) 19 FRD 319.
Rule 33 does not require a showing of good cause. Chatman v American Export Lines, Inc. (1956, DC NY) 20 FRD
176.
The use of interrogatories as a means of discovery and inspection is justifiable only where the right to discovery and
inspection is indisputable. Blau v Lamb (1957, DC NY) 20 FRD 411.
Interrogatories may not extend to issues of pure law (i.e. legal issues unrelated to facts of case). Abbott v United
States (1997, ND NY) 177 FRD 92.
2. Purpose
It is not the function of interrogatories to limit proof. RCA Mfg. Co. v Decca Records, Inc. (1940, DC NY) 1 FRD
433, 47 USPQ 99.
Purpose of interrogatories is to enable proposing party to prepare for trial as bill of particulars is to enable him to
plead. United States v General Motors Corp. (1942, DC Ill) 2 FRD 528.
Function of interrogatories is to inform parties in advance of trial and not to serve as substitute for trial itself.
O'Brien v Equitable Life Assurance Soc. (1953, DC Mo) 13 FRD 475.
Rule 33 as amended in 1948, was designed to eliminate restrictions on use of interrogatories, practice of permitting
only one set of interrogatories, and requirement that discovery proceed by oral depositions if interrogatories were so
numerous and complex as to burden court or harass interrogated party if information could be obtained more
conveniently and efficiently by means of oral deposition. Wirtz v Capitol Air Service, Inc. (1967, DC Kan) 42 FRD
641, 11 FR Serv 2d 820.
Interrogatories may be employed for discovery or for obtaining evidence or for both purposes. Rogers v Tri-State
Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR Serv 2d 1563.
3. --Ascertain facts and procure evidence
One purpose of interrogatories under Rule 33 is to ascertain facts and to procure evidence or secure information as to
where pertinent evidence exists and can be obtained. Hercules Powder Co. v Rohm & Haas Co. (1944, DC Del) 3
FRD 328, 60 USPQ 437; Cook Paint & Varnish Co. v Cook Chemical Co. (1948, DC Mo) 8 FRD 93, 78 USPQ 124;
Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635; Drum v Tonawanda (1952, DC NY) 13 FRD 317; Grand
Opera Co. v Twentieth Century-Fox Film Corp. (1957, DC Ill) 21 FRD 39; Alamo Theatre Co. v Loew's, Inc. (1958, DC
Ill) 22 FRD 42; American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d
493; Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517; United States v Purdome
(1962, WD Mo) 30 FRD 338, 5 FR Serv 2d 520; United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9 FR Serv 2d
33.321, Case 2; United States v An Article of Drug, etc. (1967, DC Del) 43 FRD 181, 11 FR Serv 2d 840.
Primary purpose of interrogatories is not to gather evidence for use at trial, but to enable interrogating party to learn
all relevant facts of case. B. & S. Drilling Co. v Halliburton Oil Well Cementing Co. (1959, SD Tex) 24 FRD 1, 2 FR
Serv 2d 532.
Purpose of interrogatories is to seek out legitimate information that would be necessary to case of party propounding
interrogatories and which would lead directly or indirectly to evidence in support of its case. United States v Grinnell
Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
Fundamental purpose of discovery rules is to enable parties to obtain from adversaries information useful in conduct
of litigation; ordinarily it is to be expected that interrogatories and requests for production of documents will be framed
in light of circumstances of particular law suit. Cheers v Chester Upland School Dist. (1979, ED Pa) 28 FR Serv 2d
535.
Page 15
USCS Fed Rules Civ Proc R 33
4. --Narrow issues
In action where plaintiff sought to recover certain sums of money alleged to be due and owing to it for gasoline, oil,
and other products supplied by it to defendant, and defendant contended that the oil was so contaminated as not to be
merchantable and unfit for purpose intended, interrogatory requesting defendant to state whether it denied liability for or
denied correctness of any of items of invoices annexed to plaintiff's complaint on any grounds apart from those set forth
in items of defenses of defendant's answer would serve to narrow and clarify issues in litigation; hence, such
interrogatories were proper. American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2
FR Serv 2d 493.
One purpose of interrogatories under Rule 33 is to narrow issues. Truck Drivers & Helpers v Grosshans &
Petersen, Inc. (1962, DC Kan) 209 F Supp 161, 6 FR Serv 2d 612; Gaumond v Spector Motor Service, Inc. (1940, DC
Mass) 1 FRD 364; Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635; O'Brien v Equitable Life Assurance
Soc. (1953, DC Mo) 13 FRD 475; Drum v Tonawanda (1952, DC NY) 13 FRD 317; Grand Opera Co. v Twentieth
Century-Fox Film Corp. (1957, DC Ill) 21 FRD 39; Alamo Theatre Co. v Loew's, Inc. (1958, DC Ill) 22 FRD 42;
American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493; Stonybrook
Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517; United States v Purdome (1962, WD Mo) 30
FRD 338, 5 FR Serv 2d 520; United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9 FR Serv 2d 33.321, Case 2;
Federal Cartridge Corp. v Olin Mathieson Chemical Corp. (1967, DC Minn) 41 FRD 531, 152 USPQ 497, 10 FR Serv
2d 865; United States v An Article of Drug, etc. (1967, DC Del) 43 FRD 181, 11 FR Serv 2d 840.
5. --Reduce possibility of surprise
Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation; the
deposition-discovery procedure simply advances the state at which the disclosure can be compelled from the time of
trial to the period preceding it, reducing the possibility of surprise. Uinta Oil Refining Co. v Continental Oil Co. (1964,
DC Utah) 226 F Supp 495, 8 FR Serv 2d 33.31, Case 1.
Interrogatories are designed to provide party with information enabling him to prepare his case, eliminating surprises
at time of trial. Federal Cartridge Corp. v Olin Mathieson Chemical Corp. (1967, DC Minn) 41 FRD 531, 152 USPQ
497, 10 FR Serv 2d 865.
Purpose of Rule 33 interrogatories is to reduce chance of surprise. United States v An Article of Drug, etc. (1967,
DC Del) 43 FRD 181, 11 FR Serv 2d 840.
6. --Facilitate disposition of case prior to trial
Action on motion to dismiss for lack of jurisdiction because defendant corporation was not doing business in the
district should have awaited answers to interrogatories concerning the type of business activity the defendant carried on
in the district. Collins v New York Cent. System (1963) 117 US App DC 182, 327 F2d 880, 7 FR Serv 2d 120.
Party to action has right to have benefits of discovery procedure promptly, not only in order that he may have ample
time to prepare his case before scheduled trial, but also in order to bring to light facts which may entitle him to summary
judgment or induce settlement prior to trial. United States use of Weston & Brooker Co. v Continental Casualty Co.
(1962, CA4 SC) 303 F2d 91, 5 FR Serv 2d 628.
The purpose of the rules is to facilitate the decision of issues perhaps earlier than an actual trial. Brewster v
Technicolor, Inc. (1941, DC NY) 2 FRD 186, 51 USPQ 319.
One purpose of discovery is to require early evaluation of case with increased likelihood of settlement. Pressley v
Boehlke (1963, WD NC) 33 FRD 316, 7 FR Serv 2d 656.
7. --Obtain admissions
The purpose of interrogatories under this rule is to obtain admissions from the adversary, thereby limiting matters in
dispute to avoid unnecessary attendance of witnesses and waste of time of the parties and the court. Schwartz v
Howard Hosiery Co. (1939, DC Pa) 27 F Supp 443, 41 USPQ 141; Bowles v Safeway Stores, Inc. (1945, DC Mo) 4
FRD 469; Hoffman v Wilson Line, Inc. (1946, DC Pa) 7 FRD 73; Woods v Kornfeld (1949, DC Pa) 9 FRD 196; Drum v
Tonawanda (1952, DC NY) 13 FRD 317; Grand Opera Co. v Twentieth Century-Fox Film Corp. (1957, DC Ill) 21 FRD
39; United States v Purdome (1962, WD Mo) 30 FRD 338, 5 FR Serv 2d 520; United States v An Article of Drug, etc.
(1967, DC Del) 43 FRD 181, 11 FR Serv 2d 840.
In using interrogatories for purpose of narrowing issues and enabling interrogating party to determine what he will
have to meet at trial, it is permissible to inquire into matters already within interrogating party's own knowledge or as to
adverse party's contentions or as to his mental operation in respect to relevant issues; thus, by interrogatories, one may
Page 16
USCS Fed Rules Civ Proc R 33
obtain admissions from an adverse party and thereby limit subject of controversy at trial. Stonybrook Tenants Asso. v
Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517.
8. --Expedite trial
One purpose of rule providing for service of interrogatories is to expedite trial. Jackson v Kotzebue Oil Sales (1955,
DC Alaska) 15 Alaska 494, 17 FRD 204.
Rule 33 interrogatories are to facilitate trial preparation. United States v An Article of Drug, etc. (1967, DC Del) 43
FRD 181, 11 FR Serv 2d 840.
9. --Ascertain party's contentions
One of principal purposes of interrogatories is to ascertain contentions of adverse party. McElroy v United Air
Lines, Inc. (1957, DC Mo) 21 FRD 100.
Contention interrogatories, because of their nature, are more appropriate after substantial amount of discovery has
been conducted. McCarthy v Paine Webber Group (1996, DC Conn) 168 FRD 448.
10. --Relieve parties from cost of proving facts
One purpose of Rule 33, providing for service of interrogatories, is to relieve parties of cost of proving facts which
will not be disputed at trial, truth of which can be ascertained with reasonable certainty. Jackson v Kotzebue Oil Sales
(1955, DC Alaska) 15 Alaska 494, 17 FRD 204.
11. Construction
Spirit and philosophy of Rule 33 of Federal Rules of Civil Procedure require that rule be given broad and liberal
interpretation; to that end either party may compel other to disgorge whatever facts he has in his possession. Michigan
Window Cleaning Co. v Martino (1949, CA6 Mich) 173 F2d 466, 16 CCH LC P 65039; Bell v Swift & Co. (1960, CA5
Ala) 283 F2d 407, 3 FR Serv 2d 567; Edgar v Finley (1963, CA8 Mo) 312 F2d 533, 6 FR Serv 2d 591; Volunteer
Electric Co-Operative v Tennessee Valley Authority (1954, DC Tenn) 139 F Supp 22; Truck Drivers & Helpers v
Grosshans & Petersen, Inc. (1962, DC Kan) 209 F Supp 161, 6 FR Serv 2d 612; Roth v Paramount Film Distributing
Corp. (1945, DC Pa) 4 FRD 302; Grand Opera Co. v Twentieth Century-Fox Film Corp. (1957, DC Ill) 21 FRD 39;
Berkley v Clark Equipment Co. (1960, DC NY) 26 FRD 153; United States v National Steel Corp. (1960, SD Tex) 26
FRD 599, 4 FR Serv 2d 506; Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517;
United States v Purdome (1962, WD Mo) 30 FRD 338, 5 FR Serv 2d 520; Triangle Mfg. Co. v Paramount Bag Mfg. Co.
(1964, ED NY) 35 FRD 540, 143 USPQ 145, 8 FR Serv 2d 33.353, Case 3; United States v 216 Bottles (1965, ED NY)
36 FRD 695, 9 FR Serv 2d 33.321, Case 2; Wirtz v Capitol Air Service, Inc. (1967, DC Kan) 42 FRD 641, 11 FR Serv
2d 820.
Rule 33 is much more liberal than old Equity Rule 58. Brewster v Technicolor, Inc. (1941, DC NY) 2 FRD 186, 51
USPQ 319.
Rule 26 and Rule 33 should be liberally construed, and Rule 33 should be construed as broadly as Rule 26. Roth v
Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302.
While there should be liberal construction of Rule 33, and liberal interpretation in order that all relevant and possibly
relevant facts should be revealed, Rule 33 cannot be construed as to require counsel for defendant to do legal research
for plaintiffs' counsel. Kluchenac v Oswald & Hess Co. (1957, DC Pa) 20 FRD 87.
Rule 33 does not license unlimited quizzing of adverse party. Greene v Raymond (1966, DC Colo) 41 FRD 11, 10
FR Serv 2d 881.
Rule 33 does not provide litigants with carte blanche to pry into all of affairs of party opponent; some connection
between answer sought to be elicited and nature of litigation must appear. Jones v Goldstein (1966, DC Md) 41 FRD
271, 10 FR Serv 2d 836, 10 FR Serv 2d 907.
Federal rules allow litigants to require opponent to answer interrogatories asking for delineation of legal theories so
long as question is calculated to serve substantial purpose in prosecution of suit; objection may not be made by person
to whom interrogatories are served merely because explanation of its case requires consultation with one or more
experts. Hockley v Zent, Inc. (1980, MD Pa) 89 FRD 26, 31 FR Serv 2d 1225.
12. --Discretion of court
With respect to interrogatories to parties provided for by Rule 33, much was left to discretion of court. Michigan
Window Cleaning Co. v Martino (1949, CA6 Mich) 173 F2d 466, 16 CCH LC P 65039.
Page 17
USCS Fed Rules Civ Proc R 33
Rule 33, like other discovery rules, should be given broad, liberal interpretation, but, as under other discovery rules,
trial court has reasonable discretion whether to allow discovery under Rule 33. Bell v Swift & Co. (1960, CA5 Ala) 283
F2d 407, 3 FR Serv 2d 567.
Extent of discovery under rules and use of protective orders is clearly within discretion of trial judge. Chemical &
Industrial Corp. v Druffel (1962, CA6 Ohio) 301 F2d 126, 133 USPQ 133, 5 FR Serv 2d 505.
Where defendant was, as matter of right, entitled to information sought through discovery procedure, court abused its
discretion in sustaining objections to interrogatories. Edgar v Finley (1963, CA8 Mo) 312 F2d 533, 6 FR Serv 2d 591.
Discovery rules are to be liberally construed but District Court has substantial discretion in such matters. Spier v
Home Ins. Co. (1968, CA7 Ind) 404 F2d 896, 12 FR Serv 2d 704.
Party who fails to co-operate in discovery is subject to having his entire claim dismissed by court. In re Fine Paper
Antitrust Litigation (1982, CA3 Pa) 685 F2d 810, 1982-2 CCH Trade Cases P 64843, 10 Fed Rules Evid Serv 1621, 34
FR Serv 2d 513, cert den (1983) 459 US 1156, 74 L Ed 2d 1003, 103 S Ct 801.
Although liberal construction is generally given Rule 33, this does not mean that every question propounded must be
answered; in liberally construing discovery rules, court must have in mind that many inquiries may seem to have no
relation to subject at hand and yet they may; if inquiry is to matters clearly irrelevant it should not be compelled to
answer. Sikes Co. v Swift & Co. (1949, DC NY) 11 FRD 315.
Rule authorizing interrogatories should be given liberal interpretation, but court is vested with reasonable discretion
in determining whether party is entitled to have interrogatories answered. Volunteer Electric Co-Operative v
Tennessee Valley Authority (1954, DC Tenn) 139 F Supp 22.
Court, in its sound discretion, may limit use of interrogatories where for one reason or another interests of justice
require such action, bearing in mind that presumption is in favor of discovery. Berkley v Clark Equipment Co. (1960,
DC NY) 26 FRD 153.
While Rule 33 should be accorded liberal construction, trial court is vested with reasonable discretion in determining
whether party is entitled to have interrogatories answered, and action of court in respect thereto will not be disturbed
except in case of abuse of discretion. Transmirra Products Corp. v Monsanto Chemical Co. (1960, SD NY) 26 FRD
572, 128 USPQ 84, 4 FR Serv 2d 562.
Trial court has discretion to allow or deny proposed interrogation. Greene v Raymond (1966, DC Colo) 41 FRD 11,
10 FR Serv 2d 881.
While court should favor full and fair disclosure, it has reasonable discretion to, and should through protective orders
and other measures, prevent discovery from becoming unjustifiably burdensome or unreasonably complex or technical
in image of common law pleading and contrary to spirit of Federal Rules of Civil Procedure. Pilling v General Motors
Corp. (1968, DC Utah) 45 FRD 366.
13. Relationship with other rules
Interrogatories are available under Rule 69(a). United States v McWhirter (1967, CA5 Tex) 376 F2d 102, 11 FR
Serv 2d 1463.
To deny expenses under Rule 37(d) would be to deny any remedy for deliberate violation of Rule 33 to party who
received evasive or incomplete answers to its interrogatories if such answers' evasive or incomplete character could not
be determined until further proceedings were conducted to obtain information later determined to have been withheld.
Airtex Corp. v Shelley Radiant Ceiling Co. (1976, CA7 Ill) 536 F2d 145, 190 USPQ 6, 25 FR Serv 2d 796.
Plaintiff abused discovery process and improperly attempted to circumvent local district court rule limiting number
of interrogatories to 30 by filing $ 2,028 "requests for admissions" in action alleging federal antitrust and state breach of
contract claims. Misco, Inc. v United States Steel Corp. (1986, CA6 Tenn) 784 F2d 198, 1986-2 CCH Trade Cases P
67191, 4 FR Serv 3d 221.
Although these rules were expressly made not applicable to suits in admiralty, former Admiralty Rule 31 relating to
interrogatories was identical with this rule and received the same construction. The Velox (1940, DC NY) 36 F Supp
929; Petition of Stevens (1944, DC NY) 58 F Supp 271; Finlay v The Eveleth (1945, DC NY) 64 F Supp 186; The
Murray Dell (1946, DC NY) 66 F Supp 238; The L. T. C. No. 6 (1946, DC NY) 68 F Supp 512; The Exermont (1940,
DC NY) 1 FRD 574; Citro Chemical Co. v Bank Line, Ltd. (1941, DC NY) 1 FRD 638; The Zarembo (1941, DC NY) 1
FRD 739; American S.S. Co. v Buckeye S.S. Co. (1941, DC NY) 1 FRD 773; The Poling Bros. No. 6 (1942, DC NY) 2
FRD 336; United States v 108 Boxes of Cheddar Cheese (1942, DC Iowa) 3 FRD 40; The Raphael Semmes (1942, DC
NY) 3 FRD 71.
Rule 26 and Rule 33 should be liberally construed, and Rule 33 should be construed as broadly as Rule 26. Roth v
Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302.
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USCS Fed Rules Civ Proc R 33
Rules 26, 33, and 34 of Civil Rules of Procedure are closely related and are designed to achieve or accomplish
identical purposes, that is, discovery of facts. Cook Paint & Varnish Co. v Cook Chemical Co. (1948, DC Mo) 8 FRD
93, 78 USPQ 124.
Denial of full discovery is not necessary bar to subsequent attempt to produce specific information by interrogatory.
Hopkinson Theatre, Inc. v RKO Radio Pictures, Inc. (1956, DC NY) 18 FRD 379.
The federal rules relating to discovery must be read in pari materia, and these rules should be interpreted and applied
in light of their well-known purposes. Crowe v Chesapeake & O. R. Co. (1961, ED Mich) 29 FRD 148, 5 FR Serv 2d
586.
Interrogatories are improper vehicle by which to seek admissions of fact, since Rule 36 contains express provisions
which guarantee that admissions cannot be used in any other proceeding or for any other purpose, and admission made
in context of what purports to be list of interrogatories could be seen to forfeit such protection. Gidlewski v Bettcher
Industries, Inc. (1983, ED Pa) 38 FR Serv 2d 664.
Interrogatory which asks for basis for denial of each request for admission comprising set of requests for admissions
constitutes multiple interrogatories rather than single interrogatory for purposes of numerical limit on interrogatories
contained in FRCP 33(a). Safeco of Am. v Rawstron (1998, CD Cal) 181 FRD 441, subsequent app (1998, CA9 Cal)
1998 US App LEXIS 29776.
Where party fails to move for order compelling adversary to answer interrogatories, court does not have authority to
sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84 AFTR 2d 6063.
Defendants violated Fed. R. Civ. P. 5(a) when they did not serve their discovery requests on all parties, or even on
corporation's local counsel; because defendants properly served all parties with discovery month later, and corporation
then responded to discovery, corporation's responses were timely. DIRECTV, Inc. v Trone (2002, DC Cal) 209 FRD
455.
14. --Depositions [FRCivP Rule 27]
Interrogatories to parties should be limited in number and depositions used for inquiries into highly controversial
issues. Byers Theaters, Inc. v Murphy (1940, DC Va) 1 FRD 286.
Interrogatories differ from depositions in that information sought on interrogatories does not presuppose or
contemplate details of evidence and purpose of interrogatory is to seek admission or obtain information or major
moment. Onofrio v American Beauty Macaroni Co. (1951, DC Mo) 11 FRD 181.
Provisions of rules concerning interrogatories should be in harmony with provisions concerning depositions;
accordingly, objection of plaintiff that interrogatories were too numerous and practically amounted to taking of
deposition was not well founded. Watson v Malcom (1951, DC Alaska) 13 Alaska 528, 12 FRD 109.
Interrogatories may be served only after a deposition has been taken, and a deposition may be sought only after
interrogatories have been answered, and it is not the return date but the date after a deposition has been taken or
interrogatories have been answered that is crucial in determining whether to allow the other discovery device to
proceed. Franchise Programs, Inc. v Mr. Aqua Spray, Inc. (1966, SD NY) 41 FRD 172, 10 FR Serv 2d 930.
Interrogatories are type of deposition and are governed by Rule 26 to same extent as depositions upon oral
examination; in suit brought under Wage and Hour Law and Fair Labor Standards Act, it is not valid objection to
interrogatories that information sought to be elicited may be irrelevant or not admissible in evidence. Wirtz v Donavan
Contracting of St. Cloud, Inc. (1968, DC Minn) 12 FR Serv 2d 777.
In inmate's 42 USCS § 1983 action against, inter alia, prison employees, alleging violation of 28 USCS § 1915(b),
retaliation under U.S. Const. amend. I, and violation of his right of access to courts, inmate failed to demonstrate good
cause for his requested stay of discovery under Fed. R. Civ. P. 26(c) as inmate could participate in telephonic oral
deposition under Fed. R. Civ. P. 33(b)(7), but prison employees were entitled to entry of amended scheduling order
under Fed. R. Civ. P. 16(b) due to substantial delays occasioned by court's previous orders. Davidson v Goord (2003,
WD NY) 215 FRD 73, app den (2003, WD NY) 259 F Supp 2d 238.
15. --Copies of documents [FRCivP Rule 34]
Interrogatories as to contents of communication should not be allowed since adequate means exist for production of
communication and opportunity to copy it. O'Rourke v RKO Radio Pictures, Inc. (1939, DC Mass) 27 F Supp 996, 41
USPQ 725.
Interrogatory calling for copy of written report of defendant's investigator was "document" or "paper" within purview
of Rule 34, and outside scope of Rule 33; as such it need not be produced in response to interrogatory under Rule 33.
Taylor v Sound S.S. Lines, Inc. (1951, DC Conn) 100 F Supp 388.
Page 19
USCS Fed Rules Civ Proc R 33
Proper procedure to follow in seeking to inspect or copy documents is by motion under Rule 34 and not through
interrogatories under Rule 33. Banana Service Co. v United Fruit Co. (1953, DC Mass) 15 FRD 106.
In absence of proof of harassment and oppressive burden, party may utilize both Rule 33 and Rule 34 since Rules 33
and 34 serve different functions; answers to interrogatories under Rule 33 give facts as one sees facts and have effect of
admission; production of documents pursuant to Rule 34 gives asking party primary source material without limitation,
explanation, or interpretation by party required to produce documents. Chatman v American Export Lines, Inc. (1956,
DC NY) 20 FRD 176.
Copies of records, reports, statements, and photographs should be sought under Rule 34 by motion for discovery and
inspection rather than interrogatories under Rule 33. Bohlin v Brass Rail, Inc. (1957, DC NY) 20 FRD 224.
The production of statements in possession of an adverse party can be obtained only under Rule 34 and such
statements are not obtainable under Rule 33. Taylor v Central R. Co. (1957, DC NY) 21 FRD 112.
Party demanding copies of documents in answer to specific interrogatories will not be compelled to move anew for
discovery under Rule 34 when his original application justified such production. Baim & Blank, Inc. v Philco
Distributors, Inc. (1957, DC NY) 25 FRD 86.
In patent suit, reports, test data, calculations, charts and spectra covering tests of subject patent could not be obtained
under Rule 33, but had to be accomplished under Rule 34. E. I. Du Pont de Nemours & Co. v Phillips Petroleum Co.
(1959, DC Del) 23 FRD 237, 120 USPQ 523, 2 FR Serv 2d 467.
It is well settled that Rule 33 cannot be used for production of documents. Harvey v Levine (1960, ND Ohio) 25
FRD 15, 125 USPQ 324, 3 FR Serv 2d 532.
Production of statements of witnesses and other documents may not be required in answer to interrogatories under
Rule 33. Stovall v Gulf & South American S.S. Co. (1961, SD Tex) 30 FRD 152, 6 FR Serv 2d 638.
While plaintiffs often ask in interrogatories that copies of statements be supplied and defendants sometimes supply
them, where there is dispute about plaintiff's right of inspection and copying, plaintiff must proceed under Rule 34.
Bartol v Isthmian Lines, Inc. (1963, DC Md) 32 FRD 387, 7 FR Serv 2d 635.
Production of documents should be sought under Rule 34, not Rule 33. Fowler v Wirtz (1963, SD Fla) 34 FRD 20,
50 CCH LC P 19236, 8 FR Serv 2d 34.42, Case 2.
Party seeking copies of documents must proceed under Rule 34, and may not obtain them by interrogatories
requesting attachment of document. Wedding v Tallant Transfer Co. (1963, ND Ohio) 37 FRD 8, 9 FR Serv 2d 36A.13,
Case 2, 9 FR Serv 2d 36A.21, Case 5.
Rule 33 is not to be utilized to obtain production of documents. Lee v Electric Products Co. (1963, ND Ohio) 37
FRD 42, 9 FR Serv 2d 33.319, Case 3.
Interrogatories under Rule 33 are not a proper avenue by which parties may secure contents of documents; to secure
contents of documents plaintiffs in the instant case were required to move under Rule 34 of these rules for their
production and establish that good cause existed for their production. Nagel v Prescott & Co. (1964, ND Ohio) 36
FRD 445.
Rule 33 does not provide for the securing of the contents of documents or of copies of documents, documents or their
contents must be obtained by motion under Rule 34; however, to save time and paper an interrogatory under Rule 33
may be treated as a motion under Rule 34 and production of documents ordered if good cause appears from the record.
Butler v United States (1964, WD Mo) 226 F Supp 341, 8 FR Serv 2d 34.411, Case 1.
Copies of documents, even though subject to discovery, may not be obtained by interrogatories under Rule 33, but
only on motion under Rule 34. Griffin v Memphis Sales & Mfg. Co. (1965, ND Miss) 38 FRD 54, 9 FR Serv 2d 33.321,
Case 3.
Rule 33 pertains only to testimony and not to discovery of documents. Kirkland v Morton Salt Co. (1968, ND Ga)
46 FRD 28, 13 FR Serv 2d 895.
Association cannot sidestep its duty to answer under FRCP 33(a) by invoking FRCP 33(d), which provides option to
produce business records, and then asserting that FRCP 34 excuses it from any discovery obligation whatsoever. Law v
NCAA (1996, DC Kan) 167 FRD 464, 1996-2 CCH Trade Cases P 71518, vacated, writ granted, stay dissolved (1996,
CA10) 96 F3d 1337, 1996-2 CCH Trade Cases P 71573, 35 FR Serv 3d 1527.
16. Use of multiple methods of discovery
Filing of interrogatories did not constitute abandonment of request for admissions since rules of procedure give right
to seek discovery by both methods; party does not have to elect one or the other and may if he wishes pursue either or
both. Woods v Robb (1948, CA5 Tex) 171 F2d 539.
Page 20
USCS Fed Rules Civ Proc R 33
The fact that a party has answered interrogatories does not preclude the subsequent taking of his deposition, but such
oral examination should be limited to matters other than those covered by the interrogatories. Howard v States Marine
Corp. (1940, DC NY) 1 FRD 499.
If the proposed interrogatories are too numerous and seek too many details and are therefore not allowed, the matters
to be covered, if relevant, may be inquired into through oral depositions. Brightwater Paper Co. v Monadnock Paper
Mills (1942, DC Mass) 2 FRD 547.
Fact that plaintiffs have choice between interrogatories and depositions does not bar use of interrogatories; neither
method is to be excluded because other is selected. Canuso v Niagara Falls (1945, DC NY) 4 FRD 362.
Defendant's objection to interrogatories on ground, inter alia, that plaintiff should have resorted to depositions would
be overruled, since fact that plaintiff had choice between interrogatories and depositions does not bar use of
interrogatories. Hoffman v Wilson Line, Inc. (1946, DC Pa) 7 FRD 73.
Under Rule 33, interrogatories may be coextensive with depositions under Rule 26. Sunday v Gas Service Co.
(1950, DC Mo) 10 FRD 185.
Motion which requested that deposition be limited to such matters as were not covered by defendant's interrogatories
under Rule 33 and answered by plaintiff would be denied; discovery rules are complementary to one another and use of
one does not restrict further use of other on same subject matter; various sections may be used independently,
simultaneously or consecutively as required. V. O. Machinoimport v Clark Equipment Co. (1951, DC NY) 11 FRD 55.
Various methods of discovery are intended to be cumulative, not alternative or exclusive. B. & S. Drilling Co. v
Halliburton Oil Well Cementing Co. (1959, SD Tex) 24 FRD 1, 2 FR Serv 2d 532.
There was no merit to defendant's contention that plaintiff was not entitled to take deposition of defendant's president
merely because it had already used other means available (Rule 33) under rules to obtain information. Bullard v
Universal Millwork Corp. (1960, ED NY) 26 FRD 144, 4 FR Serv 2d 582.
Rules 33 and 34 are cumulative, not alternative. United States v National Steel Corp. (1960, SD Tex) 26 FRD 603, 4
FR Serv 2d 585.
Under amended Rules of Civil Procedure, methods of discovery are complementary, rather than alternative or
exclusive and party may take both depositions and interrogatories as long as he is not attempting to circumvent ruling of
court, or to harass or oppress adverse party; burden is on objecting party to show that hardship or injustice will be
caused by use of successive methods of discovery. Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5
FR Serv 2d 517.
Plaintiff's objections to interrogatories on ground that each of questions contained therein was asked of plaintiff by
defendant's counsel during plaintiff's deposition taken by defendant would be overruled; various methods of discovery
setout in Rules 26-36 of Federal Rules of Civil Procedure were intended to be cumulative, rather than alternative or
exclusive; burden is on party objecting to discovery to show hardship or injustice; such hardship is not easily shown,
and usually courts have permitted interrogatories though oral deposition has been taken. Taylor v Atchison, T. & S. F.
R. Co. (1962, WD Mo) 33 FRD 283, 7 FR Serv 2d 651, 7 FR Serv 2d 673.
Interrogatories are not improper simply because same information can be obtained by use of different discovery
procedure. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 256, 28 FR Serv 2d 109.
17. Proceedings for post-judgment relief
Court of Appeals has jurisdiction to entertain interrogatories presented in action to review and set aside order of
National Labor Relations Board. Inland Steel Co. v NLRB (1939, CA7) 105 F2d 246, 4 BNA LRRM 662, 1 CCH LC P
18386.
Proceedings for relief after judgment pursuant to 28 USCS § 2255 are civil actions and subject to Rule 33 of
Federal Rules of Civil Procedure. Schiebelhut v United States (1963, CA6 Tenn) 318 F2d 785, 7 FR Serv 2d 9.
Rules 33(a) and 34(b) are designed for pretrial procedure rather than post-trial litigation. Goldy v Beal (1981, MD
Pa) 91 FRD 451, 32 FR Serv 2d 261.
18. Habeas corpus proceedings
Rule 81(a)(2) of Federal Rules of Civil Procedure, relating to applicability of those rules to various proceedings,
renders Rule 33, relating to interrogatories to parties, inapplicable to habeas corpus proceedings; however, although
Rule 33 is not applicable to habeas corpus proceedings and 28 USCS § 2246 does not authorize interrogatories except
for purpose of obtaining evidence from affiants where affidavits are admitted in evidence, in appropriate circumstances
a Federal District Court, confronted by petition for habeas corpus which establishes a prima facie case for relief, may
use or authorize use of suitable discovery procedures, including interrogatories, reasonably fashioned to elicit facts
necessary to help the court "dispose of the matter as law and justice require," within meaning of provisions of 28 USCS
Page 21
USCS Fed Rules Civ Proc R 33
§ 2243 relating to habeas corpus hearings generally. Harris v Nelson (1969) 394 US 286, 22 L Ed 2d 281, 89 S Ct
1082, reh den (1969) 394 US 1025, 23 L Ed 2d 50, 89 S Ct 1623, 13 FR Serv 2d 1366.
United States Supreme Court has no power to rewrite Federal Rules of Civil Procedure by judicial interpretation or
to decide that Rule 33, relating to interrogatories to parties, applies to habeas corpus proceedings unless, on
conventional principles of statutory construction, court can properly conclude that literal language or intended effect of
rules indicate that this was within purpose of draftsmen or congressional understanding. Harris v Nelson (1969) 394
US 286, 22 L Ed 2d 281, 89 S Ct 1082, reh den (1969) 394 US 1025, 23 L Ed 2d 50, 89 S Ct 1623, 13 FR Serv 2d 1366.
19. Miscellaneous
Although plaintiff could be held to be under continuing obligation to provide defendant with all of her hospital
records subsequent to her injury which were relevant to issues of case up to date of trial, Court of Appeals hesitated to
formulate any general rule covering problem as it believed trial court should have discretion in carrying out discovery
requirements and that inaccuracies or errors at this stage of proceeding should not form basis for setting aside verdicts,
unless prejudicial error is shown. Greyhound Lines, Inc. v Miller (1968, CA8 Mo) 402 F2d 134, 12 FR Serv 2d 806.
District court abused its discretion in ordering defendant to answer four-question "bill of particulars" framed by it
and magistrate judge, instead of answering plaintiff's interrogatories, since court's questions with one exception were
general, nonspecific and broad and answers therefore uninformative, "bill of particulars" has been replaced by discovery
rules of Federal Rules of Civil Procedure, and district court's action was not authorized by those rules; district court has
considerable power to manage discovery, but course chosen was not one of its options. Sempier v Johnson & Higgins
(1995, CA3 NJ) 45 F3d 724, 66 BNA FEP Cas 1214, 30 FR Serv 3d 890, reh, en banc, den (1995, CA3 NJ) 1995 US
App LEXIS 2927 and cert den (1995) 515 US 1159, 132 L Ed 2d 854, 115 S Ct 2611, 68 BNA FEP Cas 64.
Party serving untimely or otherwise objectionable interrogatories, to which opposing party timely objects, cannot
unilaterally withdraw interrogatories, and such interrogatories must be counted toward numerical limit. Walker v
Lakewood Condo. Owners Ass'n (1999, CD Cal) 186 FRD 584, 44 FR Serv 3d 1027.
Interrogatories served on nonparties are nullity; discovery of nonparties must be conducted by subpoena pursuant to
FRCP 45. Lehman v Kornblau (2001, ED NY) 206 FRD 345.
II. SERVING INTERROGATORIES
A. Time Considerations
20. Generally
Service of interrogatories to party after his deposition has been taken is improper. Howard v States Marine Corp.
(1940, DC NY) 1 FRD 499.
Under Rule 33 interrogatories must be directed only to parties and may be at early stage of case. McNamara v
Erschen (1948, DC Del) 8 FRD 427.
Interrogatories which have been served before service of complaint and summons will be stricken without prejudice
because defendants should not be forced to make decisions concerning complaint of which they have no firsthand
knowledge. Colston v Procter & Gamble Mfg. Co. (1969, DC Pa) 19 FR Serv 2d 753.
Since the 1970 amendment eliminating the ten day provision, interrogatories may be submitted any time after the
filing of the complaint, failure to answer interrogatories or make objection to question set forth within the thirty-five day
period is waiver by defendants of any objections they might have had. Davis v Romney (1971, DC Pa) 53 FRD 247, 15
FR Serv 2d 738.
Although early use of "contention" interrogatories should not be precluded entirely, party who seeks answers to such
interrogatories before substantial documentary or testimonial discovery has been completed must bear burden of
justification. Re Convergent Technologies Secur. In re Convergent Technologies Sec. Litigation (1985, ND Cal) 108
FRD 328, 3 FR Serv 3d 1290.
21. Extension or reduction of time
Rules' intent was to vest discretion in court to extend or shorten time for serving of answers to interrogatories on
opposing party and court's exercise of discretion should be bounded by injunction that purpose to be accomplished by
rules is to focus fundamental issues between parties and to enable parties to learn what facts are and where they may be
found before trial, to end that parties may prepare their case in light of all available facts. United States v A. B. Dick
Co. (1947, DC Ohio) 7 FRD 442.
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USCS Fed Rules Civ Proc R 33
22. Other particular circumstances
In a case which had been ordered on the jury list in 1938 and in which interrogatories were filed in October, 1940,
objections by an intervener who had filed his petition to intervene in April, 1935, on the ground that such interrogatories
were too late, would be overruled in exercise of discretion. United States for benefit of General Electric Supply Corp.
v W. E. O'Neil Const. Co. (1940, DC Mass) 1 FRD 529.
A defendant who waited until more than a year after the filing of the complaint and until after the case has been set
for trial before filing interrogatories was tardy in asserting his rights, and his tardiness was deemed a ground for
sustaining objections to the interrogatories. Securities & Exchange Com. v Timetrust, Inc. (1940, DC Cal) 33 F Supp
590.
Government was not allowed to propound interrogatories five months after case was set for trial and less than month
before trial. Oskar Tiedemann & Co. v United States (1959, DC Del) 172 F Supp 609, 2 FR Serv 2d 478.
In derivative suit by stockholders, defendants' motion for an order compelling sufficient answers to written
interrogatories or striking all or part of the complaint or to dismiss would be denied without prejudice to its renewal on
leave of court at a time when plaintiffs have had an opportunity to complete discovery by depositions on oral
examination and other methods. Berkley v Newman Realty Co. (1963, WD Mo) 33 FRD 516, 7 FR Serv 2d 668.
Interrogatories and requests for production of documents served on defendant over one month prior to serving
complaint and summons are not enforceable since they must be submitted contemporaneously with or following service
of summons and complaint on defending party; moreover, prematurely filed discovery requests do not become
enforceable after complaint and summons have been served since defendant has no obligation to hold onto such
discovery requests. Howard v Heffron (1988, WD Mich) 118 FRD 590, 10 FR Serv 3d 1020.
B. Form
23. Generally
Interrogatory seeking detailed information should not be answered; such information should be obtained by
deposition. Onofrio v American Beauty Macaroni Co. (1951, DC Mo) 11 FRD 181.
Form questions are not per se inappropriate in interrogatories; however, if used at all, form or canned questions must
be used selectively, must be germane to the case, must be prepared by lawyer or under his direction, must be a
reasonable number given nature of case and must be consecutively numbered. SCM Societa Commerciale S.P.A. v
Industrial & Commercial Research Corp. (1976, ND Tex) 72 FRD 110, 22 FR Serv 2d 1031.
24. Ambiguous questions
It was improper in interrogatories to refer to "affiliated" or "allied" corporations, inasmuch as such language was
ambiguous. Savannah Theatre Co. v Lucas & Jenkins (1943, DC Ga) 10 FRD 461; Leonia Amusement Corp. v Loew's,
Inc. (1955, DC NY) 18 FRD 503; Konczakowski v Paramount Pictures, Inc. (1957, DC NY) 20 FRD 588.
Although interrogatories need not be phrased with technical precision, they should give a reasonably clear indication
of the information sought. Heritage Furniture, Inc. v American Heritage, Inc. (1961, DC Conn) 28 FRD 319, 4 FR
Serv 2d 521.
Though technical precision in phrasing of interrogatories is not demanded, something more is required than vague
phraseology. Struthers Scientific & International Corp. v General Foods Corp. (1968, SD Tex) 45 FRD 375, 159
USPQ 565, 12 FR Serv 2d 767.
Plaintiffs' objection to interrogatory in antitrust litigation, claiming that use of "affiliation with" in interrogatory is
fake and ambiguous and that information sought concerning identification of plaintiffs affiliated with folding carton
supplier is irrelevant, is without merit because class determination provisions of pretrial order excluded defendants and
their "affiliates,", pretrial conference required plaintiffs to disclose any interest they may have in any defendant, any
other processor of paper board cartons, or any possible co-conspirators, and because information about affiliation may
also be relevant to plaintiffs' fraudulent concealment claim in defendants' statute of limitations defense. In re Folding
Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
25. Argumentative questions
Where interrogatories were extremely argumentatively and controversially formulated, their individual quashing and
suppression was required and defendants were absolved from answering them. Rhodes v Houston (1966, DC Neb) 258
F Supp 546, affd (1969, CA8) 418 F2d 1309, cert den (1970) 397 US 1049, 25 L Ed 2d 662, 90 S Ct 1382.
26. Broad or general questions
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USCS Fed Rules Civ Proc R 33
Interrogatories constituting general questions as to any joint financial interest or ownership of respective defendants
in any movie theaters in which large number of named corporations or all or any of them or their subsidiary or allied
firms, persons, or corporations had financial interest, were too broad; similarly, no interrogatory dependent for answer
upon determination by party interrogated of what were "affiliated" or "subsidiary" corporations, and with no
specification by name, was required to be answered. Savannah Theatre Co. v Lucas & Jenkins (1943, DC Ga) 10 FRD
461.
Any interrogatory which is too general and all-inclusive need not be answered. Stovall v Gulf & South American
S.S. Co. (1961, SD Tex) 30 FRD 152, 6 FR Serv 2d 638.
In patent infringement case, interrogatory asking defendants to state all of facts known to defendants which
supported various assertions in their answer and counterclaims was not subject to objection because of use of word
"all." Rheem Mfg. Co. v Strato Tool Corp. (1967, DC NJ) 276 F Supp 1005, 157 USPQ 132, 12 FR Serv 2d 786.
27. Frivolous questions
In damage suit arising out of ordinary rear end collision between automobiles, plaintiff's serving on defendant over
200 interrogatories requesting information such as color of defendant's hair, eyes, his place of birth, names and
addresses of his parents, spouse, former spouse and children, date and place of his marriage and of any divorce, former
convictions of motor vehicle violations, names of witnesses whom defendant intended to produce to prove certain facts,
and whether it was snowing and lighting conditions at time of accident were frivolous. Frost v Williams (1969, DC
Md) 46 FRD 484, 13 FR Serv 2d 908.
28. Incomplete sentences
In action for personal injuries resulting from train-automobile collision, railroad was not required to answer
interrogatory containing incomplete sentence, meaning of which railroad was under no obligation to decipher. Rucker
v Wabash R. Co. (1969, CA7 Ill) 418 F2d 146, 13 FR Serv 2d 981.
29. Interrogatories filed against several parties
When interrogatories are filed against several defendants those questions which are common to each defendant are to
be listed first amongst the interrogatories and designated as "common questions"; thereafter, such interrogatories as are
not common to all the defendants interrogated may be added and designated as "individual interrogatories applying only
to the named defendant." United States v Grinnell Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
30. Requesting continuing answers
Only in those circumstances where the very nature of the interrogatory requires continuing answers or where the
information obtainable at pre-trial would not afford the parties sufficient time and opportunity to prepare his case should
the court treat an interrogatory as continuing. Novick v Pennsylvania R. Co. (1955, DC Pa) 18 FRD 296.
Under Rule 33, party requesting answers to interrogatories knows which of his requests are subject to change by
lapse of time and he can reserve those specific interrogatories at several points during pretrial period; this will give
serving party up to date information; prefacing entire set of interrogatories by request for continuing answers was not
proper. Gorsha v Commercial Transport Corp. (1965, ED La) 38 FRD 188, 9 FR Serv 2d 33.412, Case 1.
Defendant's request that interrogatories be considered as being continuing would be denied, as continuing
interrogatories can make for numerous evidentiary hearings. St. Paul Fire & Marine Ins. Co. v King (1968, WD Okla)
45 FRD 521, 12 FR Serv 2d 814.
31. Repetitious questions
Although use of written interrogatories to compel repetition of matters already adequately disclosed by oral
deposition is not to be encouraged, where it appeared that supplemental complaint alleged continuations of defendants'
wrongdoing for period of approximately 2 years after filing of original complaint, interrogatories served covering such
additional period were not repetitious to that extent. Kainz v Anheuser-Busch, Inc. (1954, DC Ill) 15 FRD 242.
32. Requests for affirmative action
Interrogatories which were not requests for answers of any fact but requests for affirmative action on part of
defendant was not within purview of Rule 33. Blanc v Smith (1943, DC Iowa) 3 FRD 182.
33. Requests for identity of persons assisting with preparation of answers
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USCS Fed Rules Civ Proc R 33
There was no justice occasioned for interrogatory directed to corporate defendant which asks names of persons who
assisted in preparation of answers to interrogatories. Hopkinson Theatre, Inc. v RKO Radio Pictures, Inc. (1956, DC
NY) 18 FRD 379.
Interrogated party need not identify persons who cooperated in preparation of answers to interrogatories. Maple
Drive-in Theatre Corp. v Radio-Keith-Orpheum Corp. (1956, DC NY) 153 F Supp 240.
With respect to action brought against corporate defendants by United States government charging defendants with
violation of Clayton Act, government could not at outset of interrogatories, request corporate defendant to state
separately with respect to each of propounded interrogatories, name, address, and position or title of each person
furnishing answers thereto since there is no right in plaintiff to know person connected in any way with preparation of
answers to interrogatories. United States v National Steel Corp. (1960, SD Tex) 26 FRD 599, 4 FR Serv 2d 506.
34. Questions requiring research
Interrogatory should not impose upon opposing party a duty to make inquiries and investigations; although
interrogatories are used in order for party to obtain from another adverse party information that he may have in his
possession, litigant may not compel his adversary to go to work for him. Segarra v Waterman S.S. Corp. (1966, DC
Puerto Rico) 41 FRD 245, 10 FR Serv 2d 924.
35. Use of definitions
Prefacing long series of interrogatories with reasonable definitions is not prohibited by Federal Rules of Civil
Procedure since such procedure might be helpful in avoiding tedious repetition; but use of unreasonable definitions may
render interrogatories so burdensome to answering party and to court that objections to entire series should be sustained
with sanctions, whether or not an occasional interrogatory might be reasonable. Diversified Products Corp. v Sports
Center Co. (1967, DC Md) 42 FRD 3, 10 FR Serv 2d 917.
C. Number
36. Generally
A party may not object to interrogatories addressed to him on the ground that they are numerically excessive. J.
Schoeneman, Inc. v Brauer (1940, DC Mo) 1 FRD 292, 45 USPQ 641.
Where interrogatories are sought, each action should stand upon its own; the novelty and facts of the individual case
must determine whether or not interrogatories should be granted; the guide is not the number of interrogatories
propounded, but rather it is whether or not the demand is reasonable as viewed with relation to the particular case.
Canuso v Niagara Falls (1945, DC NY) 4 FRD 362.
In determining number of interrogatories to be allowed, difficulty of administration which might confront court
should not be primary consideration, but criterion is whether number of interrogatories propounded is reasonable under
facts and circumstances of particular case. Hoffman v Wilson Line, Inc. (1946, DC Pa) 7 FRD 73.
There is no limit on number of interrogatories and field of inquiry is not limited to important facts. Mall Tool Co. v
Sterling Varnish Co. (1951, DC Pa) 11 FRD 576, 91 USPQ 322.
Number and detailed character of interrogatories is not a reason for disallowing them unless they are unduly
burdensome or oppressive. V. D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F Supp 932, 100 USPQ
413.
Rule 33 places no limit on number of interrogatories. United States v National Steel Corp. (1960, SD Tex) 26 FRD
603, 4 FR Serv 2d 585.
Mere number of interrogatories is no basis for objection. Uinta Oil Refining Co. v Continental Oil Co. (1964, DC
Utah) 226 F Supp 495, 8 FR Serv 2d 33.31, Case 1.
As between adverse parties, Rule 33 does not limit number of sets of interrogatories. Gorsha v Commercial
Transport Corp. (1965, ED La) 38 FRD 188, 9 FR Serv 2d 33.412, Case 1.
Number and detailed character of interrogatories is not a reason for disallowing them unless they are unduly
burdensome and oppressive. Wirtz v Capitol Air Service, Inc. (1967, DC Kan) 42 FRD 641, 11 FR Serv 2d 820.
Subparts of interrogatories need not be separately numbered or lettered to count as multiple interrogatories. Safeco of
Am. v Rawstron (1998, CD Cal) 181 FRD 441, subsequent app (1998, CA9 Cal) 1998 US App LEXIS 29776.
Every interrogatory which is served, including any discrete subparts, is to be counted against numerical limit. Walker
v Lakewood Condo. Owners Ass'n (1999, CD Cal) 186 FRD 584, 44 FR Serv 3d 1027.
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USCS Fed Rules Civ Proc R 33
Every interrogatory which is served and objected to counts against numerical limit whether or not propounding party
concedes that objections are meritorious. Walker v Lakewood Condo. Owners Ass'n (1999, CD Cal) 186 FRD 584, 44
FR Serv 3d 1027.
Party serving untimely or otherwise objectionable interrogatories, to which opposing party timely objects, cannot
unilaterally withdraw interrogatories, and such interrogatories must be counted toward numerical limit. Walker v
Lakewood Condo. Owners Ass'n (1999, CD Cal) 186 FRD 584, 44 FR Serv 3d 1027.
Best test of whether questions with single interrogatory are subsumed or related, is to examine whether first question
is primary and subsequent questions are secondary to primary question. Nyfield v V.I. Tel. Corp. (2001, DC VI) 200
FRD 246.
District court makes case by case analysis in determining whether party may exceed allotted number of
interrogatories set forth in FRCP 33, weighing burdensome duplication in given circumstance. Duncan v Paragon
Publ'g, Inc. (2001, SD Ind) 204 FRD 127.
Party seeking leave to exceed allotted number of interrogatories must set forth particularized showing. Duncan v
Paragon Publ'g, Inc. (2001, SD Ind) 204 FRD 127.
37. Particular circumstances
In action for judgment that defendants' pooled patents be declared unenforceable against plaintiff, 166 pages of
interrogatories propounded by plaintiff's counsel were not permitted to be used for to do so would expand case by
length and breadth of oppressive detail which court should refuse to countenance. Zenith Radio Corp. v Radio Corp. of
America (1952, DC Del) 106 F Supp 561, 95 USPQ 64, reh den (1953, DC Del) 109 F Supp 913, 96 USPQ 182.
In antitrust action, 55 interrogatories, many of which were subdivided so that there were in all some 300 questions to
be answered, were not excessive; preparation and proof of antitrust cases require study and investigation of multitude of
facts and documents. Banana Service Co. v United Fruit Co. (1953, DC Mass) 15 FRD 106.
In suit for recovery of treble damages for unlawful price and services discrimination under Robinson-Patman Act,
interrogatories numbering 41 were not excessive; as degree of complexity of factual issues presented by a case
increases, permissible number of interrogatories to be submitted becomes greater. Kainz v Anheuser-Busch, Inc. (1954,
DC Ill) 15 FRD 242.
Interrogatories which allegedly comprised approximately 10,000 questions and required claimant to prepare
extensive medical treaties for libelant were entirely too voluminous. United States v Diapulse Mfg. Co. (1966, DC
Conn) 41 FRD 46, 10 FR Serv 2d 849.
In damage suit arising out of ordinary rear end collision between automobiles, plaintiff's serving on defendant over
200 interrogatories was oppressive. Frost v Williams (1969, DC Md) 46 FRD 484, 13 FR Serv 2d 908.
Court would not attempt to judicially rewrite 227 interrogatories served by plaintiff in civil rights action, where
interrogatories were oppressive and in many instances irrelevant; interrogatories would be stricken without prejudice so
that plaintiff could properly draft them. Jarosiewicz v Conlisk (1973, ND Ill) 60 FRD 121, 17 FR Serv 2d 1583.
In civil rights action, interrogatories propounded by plaintiff containing no less than 432 separate questions with only
a small percentage of such interrogatories appearing to serve any useful purpose material to instant action, were
stricken. Boyden v Troken (1973, DC Ill) 60 FRD 625.
Following regulations were to be observed where counsel wished to be excepted from local rule of Western District
of Missouri in order to serve more than 20 interrogatories: he should draft set of interrogatories, arrange prefiling
conference with opposing counsel, show him copy of draft, explain reasons why more than 20 interrogatories are
proposed, determine whether opposing counsel will give his consent under circumstances; if counsel representing party
to be served with interrogatories concludes at prefiling conference that drafted set would reasonably tend to advance
discovery without necessity of judicial intervention, such counsel should give consent, or if counsel for party to be
served concludes, in good faith, he cannot give his consent, he should suggest changes, or if no agreement can be
reached, opposing counsel may file motion for protective order. Crown Center Redevelopment Corp. v Westinghouse
Electric Corp. (1979, WD Mo) 82 FRD 108, 27 FR Serv 2d 411.
If subparts of interrogatories are subsumed within or necessarily related to primary question, they should be counted
as one interrogatory rather than as multiple interrogatories. Safeco of Am. v Rawstron (1998, CD Cal) 181 FRD 441,
subsequent app (1998, CA9 Cal) 1998 US App LEXIS 29776.
III. ANSWERS
A. Time to Answer
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USCS Fed Rules Civ Proc R 33
38. Generally
The district court erred in not requiring the defendant in a personal injury action to answer interrogatories
propounded by the plaintiff in advance of the trial, but such technical error did not affect the substantial rights of the
parties. Bell v Swift & Co. (1960, CA5 Ala) 283 F2d 407, 3 FR Serv 2d 567.
Plaintiff waived his right to insist upon time requirement for answering interrogatories or objecting to interrogatories
under Rule 33 although defendants neither objected nor answered interrogatories within times fixed by Rule 33 where
plaintiff acquiesced in court's action holding motion in abeyance and appointing master pursuant to Rule 53. Wilver v
Fisher (1967, CA10 Okla) 387 F2d 66, 11 FR Serv 2d 1183.
Incarcerated pro se litigant completes service of discovery responses at time he submits responses to prison
authorities for forwarding to party being served. Faile v Upjohn Co. (1993, CA9 Nev) 988 F2d 985, 93 CDOS 1929, 93
Daily Journal DAR 3473, 25 FR Serv 3d 155.
Where United States, upon request of Federal Trade Commission, brought action to recover civil penalties for
violation of final order to cease and desist issued by Federal Trade Commission, government was not required to answer
propounded interrogatories prior to commencement of any deposition of defendant by United States. United States v
Time, Inc. (1962, SD NY) 31 FRD 179, 6 FR Serv 2d 527.
To hold in simple damage suit that defendant, who has advantage under Rule 26 in initiating discovery by
depositions on oral or written interrogatories, should be permitted to complete all discovery before answering written
interrogatories propounded by plaintiff under Rule 33, would frustrate purpose of Rules of Civil Procedure; better view
is that priority principles should not be applied in ordinary simple damage suits except in instances of actual conflict.
Sturdevant v Sears, Roebuck & Co. (1963, WD Mo) 32 FRD 426, 7 FR Serv 2d 547.
In derivative suit by stockholders charging various fraudulent acts by controlling stockholders and officers of
defendant corporations where defendants filed three detailed sets of interrogatories, with respect to issue of timeliness of
requiring full, precise and detailed answers to such searching interrogatories, plaintiffs could not be required fully to
state their case in detail until they had opportunity for discovery by depositions on oral examination and other methods.
Berkley v Newman Realty Co. (1963, WD Mo) 33 FRD 516, 7 FR Serv 2d 668.
Failure to answer interrogatories or to make objection to question set forth within 35-day period is waiver by
defendants of any objections they may have. Davis v Romney (1971, DC Pa) 53 FRD 247, 15 FR Serv 2d 738.
In action brought under Fair Labor Standards Act alleging discrimination on basis of sex, plaintiff may delay until
trial stage answering interrogatories inquiring as to why plaintiff fails to recognize distinction between "teller" and
"rotating teller". Brennan v Glens Falls Nat'l Bank & Trust Co. (1974, ND NY) 19 FR Serv 2d 721.
Discovery is on-going process and party must answer interrogatories to best of ability whether or not its own
investigations are still continuing and, if necessary, party may move for protective order or other appropriate order as
provided in Rule 33(b) to protect it from revealing expert opinion not yet fully formed but no party may simply delay
answering interrogatories with paltry answers until day or month before trial when all facts are known and theories
finalized. Barker v Bledsoe (1979, WD Okla) 85 FRD 545, 29 FR Serv 2d 1118.
Filing of motion for discovery conference pursuant to Rule 26(f) does not have effect of holding in abeyance any
requirement to answer interrogatories. Chubb Integrated Sys. v National Bank of Washington (1984, DC Dist Col) 103
FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
Although contention interrogatories (which generally ask party to state what it contends or to state all facts upon
which it bases contention) are permitted, obligation to respond to them is often postponed until near end of discovery
period unless proponent carries its burden of demonstrating why they are necessary earlier on. Everett v USAir Group
(1995, DC Dist Col) 165 FRD 1.
39. Extension of time
Affidavit requesting that plaintiff have extension of time to answer interrogatories was not properly made by
plaintiff's attorney; affidavit should be made by party unless some special reason is shown to justify their submission by
attorney. Reitmeister v Reitmeister (1944, DC NY) 4 FRD 197.
In wrongful death action against international airline where interrogatories were extensive and required defendant to
gather information from many places overseas, extension to answer interrogatories would not delay trial, and there was
no foreseeable damage to plaintiffs, time for defendant to make answer to interrogatories would be extended for period
of 90 days. Barrows v Koninklijke Luchtvaart Maatschappij (1951, DC NY) 11 FRD 400.
Where plaintiff failed to respond to two notices to take deposition resulting in delay in defendant's securing plaintiff's
deposition, defendant would be granted an extension of time to answer plaintiff's interrogatories. Sturdevant v Sears,
Roebuck & Co. (1963, WD Mo) 32 FRD 426, 7 FR Serv 2d 547.
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USCS Fed Rules Civ Proc R 33
Defendant delayed in answering both interrogatories and supplemental interrogatories, and such delay rendered
plaintiff unable to complete discovery within the time which had been specified by court; therefore, the court extended
time for making discovery and ordered the defendants to produce necessary statements. Fowler v Wirtz (1963, SD Fla)
34 FRD 20, 50 CCH LC P 19236, 8 FR Serv 2d 34.42, Case 2.
Granting or denying motion to extend time to answer or otherwise respond to interrogatories rests solely within
discretion of court under Rule 33(a). EEOC v New Enterprise Stone & Lime Co. (1977, WD Pa) 74 FRD 628, 15 BNA
FEP Cas 25, 14 CCH EPD P 7690, 23 FR Serv 2d 1518.
Neither fact that defense counsel believed that agreement existed with plaintiffs' counsel that defendants would be
granted extension in which to file both answers and objections to plaintiffs' interrogatories nor fact that such agreement
did exist excuses failure of defendants to obtain order from court extending time in which to respond. Bumpers v
International Mill Service, Inc. (1984, ED Pa) 40 FR Serv 2d 1334.
40. Reduction of time
Court may, at its discretion, shorten time allowed to respond to discovery interrogatories and demands for documents
where information is readily available and claims of potential parties could soon be barred by statute of limitations.
Soler v G & U, Inc. (1980, SD NY) 86 FRD 524, 24 BNA WH Cas 999, 89 CCH LC P 33917, 30 FR Serv 2d 913.
B. Nature of Duty to Answer
41. Generally
Interrogated party should not be required to give essay type answers, and if matter be considered proper subject of
inquiry, interrogating party should have proceeded by deposition rather than by interrogatory. Maddox v Wright (1951,
DC Dist Col) 11 FRD 170.
Party is bound to give truthful answers to interrogatories and both good faith and the spirit of these rules require that
the party see to it that their answers are truthful as of the time of trial as well as of the time when the interrogatories are
answered. Novick v Pennsylvania R. Co. (1955, DC Pa) 18 FRD 296.
Plaintiff cannot be required to state under oath all knowledge that a witness may have. Lunn v United Aircraft Corp.
(1960, DC Del) 25 FRD 186, 3 FR Serv 2d 547.
Although interrogatories addressed to opponents' attorney should be stricken, interrogatories properly addressed to a
party must be answered with all the information possessed by that party, his attorney, and his experts. Steelman v
United States Fidelity & Guaranty Co. (1964, WD Mo) 35 FRD 120, 8 FR Serv 2d 33.21, Case 5.
Answers must be responsive, full, complete and unevasive. Pilling v General Motors Corp. (1968, DC Utah) 45
FRD 366.
Equity demands that, in case where defendant has defaulted, an order requiring interrogatories to be answered should
be issued only if the party served has actual notice of them. United States v Kelley (1968, SD Tex) 45 FRD 433, 12 FR
Serv 2d 755.
Persons upon whom interrogatories are propounded are bound to furnish relevant information from whatever sources
are available to it. Skelton & Co. v Goldsmith (1969, DC NY) 49 FRD 128.
In light of fact that Rule 33(a) provides that answers are to be signed by person making them, and that objections are
to be signed by attorney making them, assistance of counsel in answering interrogatories is clearly contemplated.
Exxon Corp. v Federal Trade Com. (1974, DC Dist Col) 384 F Supp 755, 1974-2 CCH Trade Cases P 75194, remanded
without op (1976) 174 US App DC 77, 527 F2d 1386.
It is immaterial whether matters are as much within knowledge of interrogating part as of adverse party; if party has
information, he must answer interrogatory; although party is not required to prepare adverse party's case, he should
obtain all information that is available to him and that can be given without undue labor and expense. Cohn v Dart
Industries, Inc. v Kavanagh (1976, DC Mass) 21 FR Serv 2d 792.
Discovery is on-going process and party must answer interrogatories to best of ability whether or not its own
investigations are still continuing and, if necessary, party may move for protective order or other appropriate order as
provided in Rule 33(b) to protect it from revealing expert opinion not yet fully formed but no party may simply delay
answering interrogatories with paltry answers until day or month before trial when all facts are known and theories
finalized. Barker v Bledsoe (1979, WD Okla) 85 FRD 545, 29 FR Serv 2d 1118.
Party must give full and complete answers to interrogatory served on him by another party; while he does not have
duty to search out new information, party has duty to provide all information available to him; information which is
controlled by party is available to him. Trane Co. v Klutznick (1980, WD Wis) 87 FRD 473, 30 FR Serv 2d 229.
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USCS Fed Rules Civ Proc R 33
42. Duty to conduct research
Where, in action for personal injuries caused by defendant's dog, defendant answered that he had no personal
knowledge of the alleged assault by the dog, plaintiff was not entitled to have the defendant hunt up or search out
information and, based on such hearsay information, to make admissions. Nelson v Reid (1944, DC Fla) 4 FRD 199.
A party cannot complain merely because in order to answer interrogatories it must interrogate its personnel or
compile information within its control; however, the degree to which such party must expend time, effort, and money in
gathering such information is a matter within the discretion of the court. Harvey v Eimco Corp. (1961, ED Pa) 28 FRD
381, 4 FR Serv 2d 576.
Party must provide by way of answers to interrogatories relevant facts readily available to it and should not be
required to enter upon extensive independent research in order to acquire such information; thus defendant in trademark
litigation could not be compelled to produce documents sought for production when showing was made that documents
sought were not within its custody, control, or possession. La Chemise Lacoste v Alligator Co. (1973, DC Del) 60
FRD 164, 178 USPQ 393.
It is immaterial whether matters are as much within knowledge of interrogating part as of adverse party; if party has
information, he must answer interrogatory; although party is not required to prepare adverse party's case, he should
obtain all information that is available to him and that can be given without undue labor and expense. Cohn v Dart
Industries, Inc. v Kavanagh (1976, DC Mass) 21 FR Serv 2d 792.
Party must give full and complete answers to interrogatory served on him by another party; while he does not have
duty to search out new information, party has duty to provide all information available to him; information which is
controlled by party is available to him. Trane Co. v Klutznick (1980, WD Wis) 87 FRD 473, 30 FR Serv 2d 229.
Defendant railroad's response that information could be ascertained through crew members is inappropriate where
interrogatory requests speed of train at impact and at specific points prior to impact, since there is duty on part of
corporate entity to discover all information available to it through its officers, employees, and others. Weddington v
Consolidated Rail Corp. (1984, ND Ind) 101 FRD 71.
43. Duty to supply written instruments
The rules do not require the attaching of copies of written instruments to the answers to interrogatories. Roth v
Paramount Film Distributing Corp. (1945, DC Pa) 4 FRD 302.
Although party has no right to require opponent, through interrogatories, to make compilations of information when
documents containing material necessary for compilations were available to first party, party may be required, through
interrogatories, to "fill the gaps" left by insufficiency of documents produced by party. Leonia Amusement Corp. v
Loew's, Inc. (1955, DC NY) 18 FRD 503.
44. Duty to supplement answers
Failure of party to update interrogatories so as to reflect witnesses not listed in pretrial witness list may, in discretion
of court, serve as basis for exclusion of witnesses not listed from testifying at trial; decision to exclude witness is
reviewable only for abuse of discretion; lack of good faith and absence of any credible explanation for not making prior
disclosure may justify court in excluding witness. Fabrica Italiana Lavorazione Materie Organiche, S. A. S. v Kaiser
Aluminum & Chemical Corp. (1982, CA11 Fla) 684 F2d 776, 11 Fed Rules Evid Serv 312, 34 UCCRS 1193.
In diversity action by widow and executrix seeking damages arising from helicopter accident wherein decedent was
injured and subsequently died, interrogatory asking plaintiff whether decedent violated any Civil Air Regulation in
manufacturing, selling, delivering, "and/or" supplying helicopter, was of continuing nature and it was duty of plaintiff
when it had ascertained that reliance was to be placed on any specific violation of cited regulation to give immediate
notice thereof to defendant. Lunn v United Aircraft Corp. (1960, DC Del) 25 FRD 186, 3 FR Serv 2d 547.
Unless otherwise ordered by court or by agreement of parties, party who has responded to request for discovery with
answer that was complete when made is under no duty to supplement his answer to include information thereafter
acquired, except that he is under duty seasonably to supplement his answers with respect to any question directly
addressed to identity and location of persons having knowledge of discoverable matters and identity and stated subject
matter of each person who will be called as expert witness at trial; supplemental interrogatories may be filed in order to
bring up to date the answers to particular interrogatories, and court may make appropriate provisions with respect
thereto in pretrial order. Diversified Products Corp. v Sports Center Co. (1967, DC Md) 42 FRD 3, 10 FR Serv 2d 917.
Interrogatory objections not included in timely response are waived even if objections are contained in later untimely
response, absent showing of good cause; however, objections not interposed in initial response, but interposed in
supplemental response served within period allowed by FRCP 33(b) for response or as extended by stipulation, are not
waived. Safeco Ins. Co. of Am. v Rawstorm (1998, CD Cal) 183 FRD 668.
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USCS Fed Rules Civ Proc R 33
45. Recollection as opposed to belief
Rule that witness must give his recollection as opposed to his belief or understanding should apply to answers to
interrogatories where person answering has or purports to have personal knowledge of events stated, but where his
answer depends not on his own recollection but upon what others from whom he must make inquiry tell him, different
conclusion seems warranted. F. & M. Skirt Co. v A. Wimpfheimer & Bro., Inc. (1939, DC Mass) 25 F Supp 898.
46. Conflicting answers
Answer to interrogatory is comparable to answers given in deposition testimony or during course of trial itself; when
there is conflict between answer supplied in response to interrogatories and answers obtained through other questioning,
either in deposition or trial, finder of fact must weigh all of answers and resolve conflict. Victory Carriers, Inc. v
Stockton Stevedoring Co. (1968, CA9 Cal) 388 F2d 955, 33 Cal Comp Cas 809, 11 FR Serv 2d 871.
Products liability defendant's motion to strike its original answers to injured worker's interrogatories is allowed,
where corporation originally conceded that allegedly defective rubber mill was manufactured and sold by its
predecessor but then discovered falsity of that concession after obtaining better quality copies of old business records,
because original interrogatory answer is not best evidence on question of manufacture and thus may be stricken under
Rule 33(b). Freitas v Emhart Corp. (1989, DC Mass) 715 F Supp 1149, CCH Prod Liab Rep P 12209, 28 Fed Rules
Evid Serv 371.
47. Effect of answers
So far as interrogatories require the production of information, the parties must disclose whatever information they
have as of the time of the demand by interrogatories; however, the party should not be bound by these answers if in the
interim between the time of the answers and the trial they obtain by subsequent investigation new or additional facts and
the parties may offer such further information on trial. McElroy v United Air Lines, Inc. (1957, DC Mo) 21 FRD 100.
Answer to interrogatory which takes a particular position with respect to plaintiff's claim is no bar to defendant's
assertion of a different position at time of trial. Pressley v Boehlke (1963, WD NC) 33 FRD 316, 7 FR Serv 2d 656.
48. Miscellaneous
If appropriate interrogatory is propounded to defendants, defendants will be required to give information available to
them, if any, through their attorney, investigators employed by them or on their behalf, their insurer or other agent or
representative, whether personally known to defendants or not. Wycoff v Nichols (1962, WD Mo) 32 FRD 370, 7 FR
Serv 2d 629.
In securities fraud action alleging "common scheme" artificially to inflate market price of defendant corporation
stock by failing to disclose or misstating adverse material information, defendant's interrogatories will be stricken since
there is no indication that any lawyer or paralegal reviewed interrogatories or answers, rather, answers were produced
by word processing machine's memory of prior litigation. Blank v Ronson Corp. (1983, SD NY) 97 FRD 744.
Association cannot sidestep its duty to answer under FRCP 33(a) by invoking FRCP 33(d), which provides option to
produce business records, and then asserting that FRCP 34 excuses it from any discovery obligation whatsoever. Law v
NCAA (1996, DC Kan) 167 FRD 464, 1996-2 CCH Trade Cases P 71518, vacated, writ granted, stay dissolved (1996,
CA10) 96 F3d 1337, 1996-2 CCH Trade Cases P 71573, 35 FR Serv 3d 1527.
Interrogatories are to be answered by parties, not their attorneys. Kustom Signals v Applied concepts (1998, DC
Kan) 181 FRD 489.
C. Sufficiency of Answers
1. In General
49. Generally
Defendants made sufficient answer to interrogatories and were not required to give further answers where reading of
all interrogatories propounded by plaintiff to three defendants made it clear that plaintiff did not attempt to compel
legitimate disclosure of relevant facts, or facts which might lead to relevant facts, but was seeking to harass, embarrass,
and annoy defendants and to promote further litigation; defendants made conscientious endeavor to understand
questions and to answer fully such questions as were proper, and in some cases gave plaintiff more of answer than he
was entitled to receive. Maddox v Wright (1951, DC Dist Col) 11 FRD 170.
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USCS Fed Rules Civ Proc R 33
Answer to interrogatory constituted sufficient compliance with Rule 33 where interrogatory asked for names and
addresses of witnesses having information on four different issues and, in his answer, plaintiff listed name and address
of each and every witness presently known to him having any knowledge whatsoever of accident; further compliance
would in effect constitute furnishing of statements of witnesses, and party is required to furnish such statements only if
his adversary proceeds under Rule 34. Wolf v Dickinson (1953, DC Pa) 15 FRD 407.
Answers to interrogatories were not full and complete, were not signed by the respective plaintiffs, the verifications
to the answers did not state the truth thereof to deponents' own knowledge, and the answers attempted a consolidation,
all violative of Rule 33, in consequence whereof, plaintiffs are warned that failure to completely comply with Rule 33
within a time certain will result in judgment by default being entered against them. Nagler v Admiral Corp. (1958, SD
NY) 167 F Supp 413, 1 FR Serv 2d 557.
Passenger suing airline for alleged salmonella poisoning suffered on flight is entitled to see original microfiche of
ticket coupons pertaining to flight, where airline provided, in response to interrogatory, reservation list and photocopies
of boarding passes which were completely unintelligible, because it was not unduly burdensome under FRCP 33 for
magistrate to require access to original tickets so that plaintiff could identify other passengers on flight. Matthews v
USAir (1995, ND NY) 882 F Supp 274, 32 FR Serv 3d 464.
Parties must provide true, explicit, responsive, complete, and candid answers to interrogatories. Hansel v Shell Oil
Corp. (1996, ED Pa) 169 FRD 303, 1996-2 CCH Trade Cases P 71626, 37 FR Serv 3d 193.
50. Evasive, cryptic or deceptive answers
Expenses are awarded under Rule 37(d) to party compelled to further investigate matters covered by its
interrogatories if opposing party's answers to such interrogatories are evasive and incomplete and appear to have been
framed to impede discovery rather than facilitate it; no waiver of rights to such expenses occurs even though party fails
to request order to compel answers under Rule 37(a) before trial if 1) evasive and incomplete character of answers to
party's interrogatories was not immediately apparent and did not become apparent until such party conducted further
discovery, and 2) it was useless to ask court to compel opposing party to provide information subsequently uncovered
through other party's own efforts. Airtex Corp. v Shelley Radiant Ceiling Co. (1976, CA7 Ill) 536 F2d 145, 190 USPQ
6, 25 FR Serv 2d 796.
Partial answer by party reserving undisclosed objection to answering fully is not candid, it is evasive. Dollar v Long
Mfg., N. C., Inc. (1977, CA5 Ga) 561 F2d 613, 2 Fed Rules Evid Serv 760, 24 FR Serv 2d 408, reh den (1977, CA5 Ga)
565 F2d 163 and reh den (1977, CA5 Ga) 565 F2d 163 and cert den (1978) 435 US 996, 56 L Ed 2d 85, 98 S Ct 1648.
Inadequate and evasive answers to interrogatories may be stricken and the party may be ordered to make proper and
direct answers. Gaumond v Spector Motor Service, Inc. (1940, DC Mass) 1 FRD 364.
A party who willfully gives false or deceptive answers to interrogatories or recklessly resists efforts to secure such
answers, necessitating the taking of depositions to secure the desired information, should be required to bear the
necessary added expense; also, making of false or evasive answers to interrogatories may be punished as a contempt.
Crosley Radio Corp. v Hieb (1941, DC Iowa) 40 F Supp 261.
Evasive or cryptic answers are ordinarily insufficient. Pressley v Boehlke (1963, WD NC) 33 FRD 316, 7 FR Serv
2d 656.
Response to interrogatory based upon present information does not foreclose party from relying on any additional
information which may be uncovered later. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR
Serv 2d 1563.
Defendant's partial response to one interrogatory without disclosing work-product objection to other evidence which
should have been disclosed, would be treated as incomplete and evasive answer which needlessly prolonged litigation of
defendant's meritless RICO claim and therefore warranted monetary sanctions to reimburse plaintiffs and third-party
defendants for expenses. Chapman & Cole v Itel Container Int'l B.V. (1987, SD Tex) 116 FRD 550.
51. Lack of personal knowledge
In answering interrogatories as to matters concerning which the plaintiff cannot readily furnish information and
details, he may so state under oath. Riordan v Ferguson (1942, DC NY) 2 FRD 349.
The fact that the party interrogated lacks knowledge to answer the question is not a basis for exception, a statement
to that effect being the proper answer. The Raphael Semmes (1942, DC NY) 3 FRD 71.
Mere statement of lack of knowledge by plaintiffs of facts sought by defendant's interrogatories, without any recital
of what attempt, if any, had been made to acquire knowledge was insufficient. Breeland v Bethlehem Steel Co. (1959,
SD NY) 179 F Supp 464, 3 FR Serv 2d 558.
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USCS Fed Rules Civ Proc R 33
Plaintiff, suing in representative capacity, in answering interrogatory by stating that she had no personal knowledge,
court assumed that she had no personal knowledge and ordered further answers be made so as to include any knowledge
with which she may be properly charged. Lunn v United Aircraft Corp. (1960, DC Del) 25 FRD 186, 3 FR Serv 2d
547.
In responding to interrogatory, party cannot unreasonably limit his answer to matters within his own knowledge and
ignore information immediately available to him or under his control. Pilling v General Motors Corp. (1968, DC
Utah) 45 FRD 366.
52. --By corporation
Officer of corporation who was designated to respond to discovery procedures directed to corporation did not
provide such information as was available to corporation when he stated repeatedly that he had insufficient personal
knowledge upon which he could base an answer, since, as agent of corporation, officer was obligated to furnish all
information available to corporation and was duty bound to secure all information available to corporation, including
information within personal knowledge of former corporate employees employed at time action was commenced and
information possessed by corporate counsel. General Dynamics Corp. v Selb Mfg. Co. (1973, CA8 Mo) 481 F2d 1204,
17 FR Serv 2d 1221, cert den (1974) 414 US 1162, 39 L Ed 2d 116, 94 S Ct 926.
In action brought against airline to recover damages for death of plaintiff's husband, defendant's answer to
interrogatory to effect that it had no corporate knowledge concerning information requested by interrogatory was not
sufficient where it was apparent from opposing affidavit that defendant had already obtained certain information from
third persons relating to some of interrogatories and was not a matter of requiring defendant to seek it out; defendant
could state in its answers what source of information was, and if it so desired, where the information had been obtained
from persons under defendant's control solely from third persons; if no one under defendant's control had any
information from any source as to particular interrogatory, defendant could so state under oath and such a statement
would have been sufficient answer. Riley v United Air Lines, Inc. (1962, SD NY) 32 FRD 230, 7 FR Serv 2d 622.
Private corporation cannot avoid answering interrogatory by allegation of ignorance if it can obtain requested
information from sources under its control. United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR
Serv 2d 1100.
Fact that answer is unknown to answering agent of corporation individually does not mean that it is not known to
corporation; it is incumbent upon organization to select agent to answer for them who has access to information desired
and if in fact answer is unknown to answering agent, answering agent must consult with other members of organization
who would be in possession of information desired. International Asso. of Machinists, Dist. 169 v Amana
Refrigeration, Inc. (1978, ED Tenn) 90 FRD 1.
53. References to other answers, complaints, documents and the like
Answer to interrogatory was not sufficiently specific where it referred to voluminous records where answers could
be found without categorizing or specifying location of answers within records. Rainbow Pioneer #44-18-04A v
Hawaii-Nevada Inv. Corp. (1983, CA9 Hawaii) 711 F2d 902, 38 FR Serv 2d 67.
Answers to interrogatories should be in such form that they may be used upon a trial; incorporation by reference of
deposition of a witness or allegation of a pleading is not a responsive answer. J. J. Delaney Carpet Co. v Forrest Mills,
Inc. (1963, SD NY) 34 FRD 152, 8 FR Serv 2d 33.42, Case 1.
Answer to interrogatory in form of merely restatement of general terms of allegations of complaint is not sufficient.
United States v West Virginia Pulp & Paper Co. (1964, SD NY) 36 FRD 250, 9 FR Serv 2d 33.342, Case 2.
There is no inflexible rule regarding reference to previous interrogatory and answer to another interrogatory;
however, defendant's answering interrogatory by referencing second separate defense of answer as amended was not
proper where, although reference to second defense in answer as amended was sufficiently explicit, answer was not
sworn to by defendant as is required in answer to interrogatory. Zatko v Rogers Mfg. Co. (1964, ND Ohio) 37 FRD 29,
144 USPQ 466, 9 FR Serv 2d 33.319, Case 1.
There is authority to effect that one may answer one interrogatory by referring to answers to previous interrogatory
or interrogatories, but such authority has not made this an inflexible rule to be applied in all circumstances. Trabon
Engineering Corp. v Eaton Mfg. Co. (1964, ND Ohio) 37 FRD 51, 144 USPQ 469, 9 FR Serv 2d 33.319, Case 2.
Where, in answer to interrogatories, plaintiff referred to relatively short record in related case for contextual tone
rather than specific facts, there was no undue burden on defendant; cases which suggest that it is not enough to refer to
whole depositions or large volumes of testimony for specific facts are applicable only if plaintiff has directed defendant
to hunt for specific page and line references. Sahley v Tipton Co. (1966, DC Del) 40 FRD 495, 10 FR Serv 2d 922.
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USCS Fed Rules Civ Proc R 33
Since point of interrogatories is to obtain party's admissions and contentions under oath and to narrow issues in case,
plaintiff's simply referring defendant to whatever it might find in documents and testimony subject to varying
interpretations do not comply with court's order requiring plaintiff to responsively answer each of subject
interrogatories. Life Music, Inc. v Broadcast Music, Inc. (1966, SD NY) 41 FRD 16, 150 USPQ 789.
Material outside answers and their addendum ordinarily should not be incorporated by reference; if information from
other answers is incorporated in particular answer to avoid repetition, references should be specific rather than general.
Pilling v General Motors Corp. (1968, DC Utah) 45 FRD 366.
Incorporation by reference of allegations of pleading is not responsive and sufficient answer to interrogatory.
Atlanta Coca-Cola Bottling Co. v Transamerica Ins. Co. (1972, ND Ga) 61 FRD 115, 18 FR Serv 2d 1053.
Plaintiff evaded interrogatories by offering defendant access to plaintiff's ledgers, books and various other documents
in accordance with Rule 33(c) where neither burden nor expense was undue and where defendant had presented
affidavit of its accountant indicating that defendant's unfamiliarity with plaintiff's documents would render chore of
culling out relevant information extremely burdensome and expensive for defendant. G. O. Coin Service, Inc. v Ace
Vending Co. (1978, SD Ohio) 26 FR Serv 2d 601.
Making pertinent business records available to interrogating party is sufficient response to interrogatories if, but only
if, burden of deriving or ascertaining answer from records is substantially same for party serving interrogatory as for
party served. Pascale v G. D. Searle & Co. (1981, DC RI) 90 FRD 55, 31 FR Serv 2d 1251.
Appropriate answer to interrogatories under Rule 33 which referred to specific documents previously provided to the
opponent is to list specific document provided and indicate page or paragraphs that are responsive to interrogatory.
Colorado ex rel. Woodard v Schmidt-Tiago Constr. Co. (1985, DC Colo) 108 FRD 731, 3 FR Serv 3d 1108.
Defendant's method of answering certain interrogatories by referring to other answers to interrogatories, while not
strictly proper, was adequate. Guruwaya v Montgomery Ward, Inc. (1988, ND Cal) 119 FRD 36, 60 BNA FEP Cas
811, 48 CCH EPD P 38564.
Where plaintiffs' interrogatories requested whether defendant's product, extended wear lenses, were tested for
effectiveness, description of tests performed, identity of personnel performing tests, and results of tests, defendant's
responsibility to provide answers was not satisfied under Rule 33 by dumping several volumes of unspecified
information on plaintiffs' counsel. Holben v Coopervision, Inc. (1988, ED Pa) 120 FRD 32.
Defendant's intention to direct interrogating party to undeferentiated mass of records would be improper and clear
contravention of Rule and, given defendant's familiarity with its records and methods of organization, defendant would
be directed to specify which of its documents were relevant or responsive to given interrogatories. T.N. Taube Corp. v
Marine Midland Mortg. Corp. (1991, WD NC) 136 FRD 449, 19 FR Serv 3d 698.
Interrogatory answers referring questioner to depositions were insufficient. Continental Illinois Nat'l Bank & Trust
Co. v Caton (1991, DC Kan) 136 FRD 682.
Defendant police officers' reference to their testimony in prior criminal trial at which plaintiffs and their neighbors
were charged with criminal offenses as result of incident which formed basis of instant civil rights case was totally
improper; interrogatory answers must be complete in and of themselves and defendants did not invoke rule's exception.
Mahoney v Kempton (1992, DC Mass) 142 FRD 32, 22 FR Serv 3d 1198.
When party responds to interrogatories by producing its business records instead of making conventional response, it
must specifically identify documents from which requesting party may derive answer. Herdlein Technologies, Inc. v
Century Contractors, Inc. (1993, WD NC) 147 FRD 103, 25 FR Serv 3d 1370.
Providing information through deposition does not satisfy requirements of FRCP 33 and does not answer
interrogatory. Oleson v Kmart Corp. (1997, DC Kan) 175 FRD 560.
Party may not defer answering or refuse to answer interrogatory by suggesting that information may be forthcoming
during deposition to be taken at later date; such response is failure or refusal to answer interrogatory. Oleson v Kmart
Corp. (1997, DC Kan) 175 FRD 570, 39 FR Serv 3d 1215.
Magistrate judge granted motion to compel Securities and Exchange Commission (SEC) to answer interrogatories
related to its motion for civil contempt against company and individual where its attempt to answer under Fed. R. Civ.
P. 33(d) referred company and individual to its contempt papers and supporting documents, company and individual
alleged that it was impossible to know which documents were relied on as source of SEC's contentions given its reliance
on testimony of confusing and contradictory witness, SEC failed to identify any specific documents for any specific
interrogatory and failed to show that documents contained all of information sought by interrogatories, and supporting
documents were not business records. SEC v Elfindepan, S.A. (2002, MD NC) 206 FRD 574.
54. Joint answers
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USCS Fed Rules Civ Proc R 33
There was no authorization for so-called consolidated answers in which four plaintiffs jointly answered bulk of
interrogatories. Nagler v Admiral Corp. (1958, SD NY) 167 F Supp 413, 1 FR Serv 2d 557.
2. Particular Cases
55. Antitrust
In government antitrust suit, plaintiff's answers to defendant's interrogatories which supplied no facts neither
supplied by the complaint nor clarified the narrow and broad issues posed by the complaint were insufficient. United
States v West Virginia Pulp & Paper Co. (1964, SD NY) 36 FRD 250, 9 FR Serv 2d 33.342, Case 2.
56. Contracts
In action based upon alleged breach of contract of employment entered into between plaintiff and college, where
plaintiff propounded interrogatory to college asking when college first entered into contract with faculty members for
definite period and college answered that college never employed any faculty member for definite period in excess of
one academic year, such answer was evasive and incomplete on its face since contract of employment for one year is for
definite period. Kraft v Washington & Jefferson College (1951, DC Pa) 11 FRD 503.
In action to collect purchase price of certain carpet alleged to have been sold to defendant where defendant sought by
interrogatory to learn of any credits made on defendant's bill and reasons why such credits were given, information
sought was fairly and adequately provided by plaintiff's setting forth schedule of profits given which were cross-indexed
as to original invoices, and defendant could not complain that plaintiff's response did not supply him with sufficient
information to enable him to determine what carpets were shipped where shipping information was not subject matter of
interrogatory. Concept Industries, Inc. v Carpet Factory, Inc. (1973, DC Wis) 59 FRD 546.
In action brought to collect purchase price of certain carpet alleged to have been sold to defendant, no merit was
found to objection to plaintiff's incorporation of its answers to two interrogatories as answer to other interrogatory,
where elaborate comparison of answers was necessary to elicit requested information, and where defendant had used
technique to respond to plaintiff's interrogatories served upon it in same action. Concept Industries, Inc. v Carpet
Factory, Inc. (1973, DC Wis) 59 FRD 546.
57. Insurance
In action against insurer in which plaintiff has propounded interrogatory asking whether insurer received or has in its
possession any recommendations with respect to plaintiff's claim, evaluations as to liability, amount of coverage, when
payment would be overdue, or any factual summaries of its personnel, insurer which has objected on basis of
attorney-client privilege and work product rule must specifically identify nature, but not contents, of documents and
communications sought to be protected from discovery. Moses v State Farm Mut. Auto. Ins. Co. (1984, ND Ga) 104
FRD 55.
58. Negligence
In action brought by administratrix of decedent's estate who claimed that alleged defective part caused death of
decedent, (1) answers to interrogatories seeking details of deceased's employment during 10 years prior to his death
were inadequate and unresponsive where, with respect to part of interrogatory relating to decedent's salary, plaintiff
answered with obviously inaccurate statement, and where, with respect to interrogatory relating to self-employment,
plaintiff "estimated," on basis of tax return, approximate amount decedent earned from betting activities, (2) answers to
interrogatories calling for amount of gifts made by decedent to his heirs at law during 5 years prior to his death did not
evince bona fide attempt to make adequate responses where, with respect to one of interrogatories plaintiff answered
without reference to amount and answered other interrogatories as "presently unknown," and (3) there was justification
for compelling further response to interrogatories concerning past injuries of decedent and physicians he had consulted
to treat those injuries, notwithstanding plaintiff's assertion that such interrogatories were answered through testimony
during oral deposition, where plaintiff's testimony on deposition, rather than curing, highlighted inadequacies of
answers given to interrogatories. Di Gregorio v First Rediscount Corp. (1974, CA3 Del) 506 F2d 781, 19 FR Serv 2d
728.
Defendant had no cause for complaint because plaintiff, being asked by interrogatory what he observed immediately
after accident, stated that he was bleeding profusely, in view of preciseness, detailed character, and number of
interrogatories asked. Lowe v Greyhound Corp. (1938, DC Mass) 25 F Supp 643.
In action against owner of vessel by plaintiff injured when, while disembarking by way of ladder placed by members
of crew over side of vessel, rung of ladder broke under plaintiff's weight, plaintiff's motion seeking order striking
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USCS Fed Rules Civ Proc R 33
answers on ground that defendant failed to answer interrogatories would not be granted where interrogatories asked
when was last time ladder was used, when was last time ladder was inspected, and state period of time prior to
occurrence complained of that this ladder was in defective condition, and, in answering affidavit, defendant's attorney
stated that said interrogatories required investigation and interview among members of personnel of vessel, then widely
scattered throughout world. Beckley v Aktieselskabet Glittre (1963, ED NY) 32 FRD 384, 7 FR Serv 2d 625.
In negligence action, plaintiff could not respond to interrogatory asking whether he had ever been convicted of a
crime by answering that he had never been convicted of felony or of crime involving moral turpitude, as defendant
should not be required to accept plaintiff's characterization of any crimes of which he may have been convicted;
plaintiff should answer interrogatory as propounded, except that for convenience he may omit minor traffic offenses.
Wedding v Tallant Transfer Co. (1963, ND Ohio) 37 FRD 8, 9 FR Serv 2d 36A.13, Case 2, 9 FR Serv 2d 36A.21, Case
5.
In action brought under Federal Tort Claims Act by plaintiff alleging that certain surgical operation was performed
negligently on him and, in addition to general allegation of negligence, plaintiff expressly invoked doctrine of res ipsa
loquitur, plaintiff's answer that he was under anesthesia at all times during operation did not constitute proper answer to
Government's interrogatory requesting plaintiff to state in detail each action or admission plaintiff claimed constituted
negligence complained of. Bynum v United States (1964, ED La) 36 FRD 14, 9 FR Serv 2d 33.342, Case 1.
Where, in answer to interrogatory asking for complete explanation of manner in which accident occurred, defendant
stated that he did not admit occurrence of accident referred to in complaint, but, for plaintiff's version as to how accident
occurred, referred to deposition which contained plaintiff's version of accident, defendant's denial of occurrence of
accident was sufficient answer in itself; additional information regarding complaint was gratuitous and not strictly
required. Segarra v Waterman S.S. Corp. (1966, DC Puerto Rico) 41 FRD 245, 10 FR Serv 2d 924.
In action for injuries sustained in collision of automobiles where interrogatories were served on defendant requesting
facts on which defendant relied for his allegations that plaintiffs, passengers in one of vehicles, were charged with
negligence of driver inasmuch as he was their agent or was engaged in joint venture with them and, in response,
defendant merely referred generally to testimony given in depositions by driver and plaintiffs without stating
specifically facts relied upon, plaintiffs' motion to compel further answers to interrogatories would be granted since
party may not answer interrogatory otherwise than as required by rule by mere reference to deposition or other
documents that may appear in case. Smith v Danvir Corp. (1963, Super Ct) 55 Del 418, 188 A2d 118, 96 ALR2d 594.
59. Patents
In action for specific performance of license agreement, or declaratory judgment as to whether license had been
canceled, and for infringement of certain patents if license had been canceled, where defendant propounded
interrogatory asking how purchaser of transformer unit from licensee obtained right to use system of patents in suit and
plaintiffs answered that no such license had ever been given and no purchaser had ever requested one, plaintiffs' answer
was evasive and plaintiffs would be required to state whether right to use patent system was given to purchaser and, if it
was, how it was given. National Transformer Corp. v France Mfg. Co. (1949, DC Ohio) 9 FRD 606, 83 USPQ 527.
Where, in patent infringement action, plaintiff replied to interrogatory asking plaintiff to identify persons who were
prior inventors and persons and companies who had prior knowledge of or who had previously used or offered for sale
inventions of subject patents by answering that, as presently advised, plaintiff alleges that patentees and authors of
subject patents, their employers and others, were persons and companies who have had prior knowledge of, or who have
previously used or offered for sale subject matters of patents fell far short of full response which Rule 33 requires; either
plaintiff had knowledge of prior inventors or users of subject of said patents, or it had none. Cardox Corp. v Olin
Mathieson Chemical Corp. (1958, SD Ill) 23 FRD 27, 120 USPQ 439, 1 FR Serv 2d 610.
Where plaintiff sought declaratory judgment that it had complied with patent license agreements with defendant and
that it had not violated agreements by using patents and failing to pay royalties, and interrogatory propounded to
defendant asking whether defendant had asked other licensees to pay additional royalties and for detailed information as
to process involved in such request, defendant's answer merely referring to answers to 2 other interrogatories which
were limited to litigation instituted by defendant were incomplete. Cone Mills Corp. v Joseph Bancroft & Sons Co.
(1963, DC Del) 33 FRD 318, 139 USPQ 115, 7 FR Serv 2d 640.
In patent infringement action interrogatories propounded by defendant inquiring as to dates of reduction to practice
and conception of patents on which plaintiff would rely at trial were not answered properly where plaintiff equivocally
began each answer with words "as presently advised in having regard to defendants' failure to set forth any prior art. . .;"
requirement that answers to interrogatories be definite is not obviated or in any way affected by defendant's reservation
in its notice of prior art given pursuant to 35 USCS § 282. Brunswick Corp. v Chrysler Corp. (1968, ED Wis) 291 F
Supp 118, 159 USPQ 770, 12 FR Serv 2d 781.
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USCS Fed Rules Civ Proc R 33
Defendant's response to interrogatories seeking detailed information concerning patents, patent applications and
licenses is inadequate where response simply refers to "documents relating to licenses" without further specification;
despite contention that extracting of detail and categorization of data can be done as easily by plaintiff as by defendant,
plaintiff is nonetheless entitled to be referred either to specific documents or to group of documents that contained
desired information. SCM Corp. v Xerox Corp. (1975, DC Conn) 21 FR Serv 2d 1377.
60. Taxation
In action for refund of taxes where taxpayer propounded interrogatory requesting information as to written
statements of prospective witnesses, Government's negative answer was not erroneous and did not mislead taxpayer
since Government did not construe interview summaries to be written statements. United States v Thompson (1960,
CA10 NM) 279 F2d 165, 60-2 USTC P 9487, 5 AFTR 2d 1524.
61. Miscellaneous
Where, in interrogatory, defendant asked plaintiff to enumerate in detail charges made in hospital, and reply was that
plaintiff had not received hospital bill, reply was not sufficient answer because plaintiff was under duty to find out and
disclose such hospital expenses. Lowe v Greyhound Corp. (1938, DC Mass) 25 F Supp 643.
Where two interrogatories respectfully called for date of last medical treatment of plaintiff and dates during which
plaintiff was confined to house and plaintiff replied respectfully "I am not all better yet," and "when I returned to my
home from the hospital on or about March 23, 1938, I remained at my house most of the time until the 6th day of July,
1938," answers would be stricken and plaintiff directed to answer interrogatories further. Bailey v General Sea Foods,
Inc. (1939, DC Mass) 26 F Supp 391.
Where defendant asked by interrogatories to specify foreign law upon which 9 defenses and its counterclaim were
based answered that subject matter was beyond its competence, "being left to defendant's lawyers to deal with as may be
appropriate according to developments in the litigation," answer was insufficient since it disclosed no information as to
substance of defenses or counterclaims and plaintiff was entitled thereto; fact that such information is beyond
competence of defendant will not avail it. Bernstein v N. V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij
(1951, DC NY) 11 FRD 48.
Where, in response to interrogatory requesting plaintiff to state to whom he announced his intention of running for
office of business representative, plaintiff stated that announcement was made to group of members of defendant local
gathered informally in tavern on or about particular date, such answer was not in sufficient detail. Magelssen v
Operative Plasterers' & Cement Masons' International Asso. (1963, WD Mo) 32 FRD 464, 7 FR Serv 2d 632.
Plaintiffs who submitted written interrogatories under this rule, which among other things, requested defendants to
state reasons for denying petition for rezoning were entitled to information requested, and answers given which were
not responsive to interrogatories and offered no insight into the rationale for the conclusion of the zoning commission
are not sufficient. Donovan v Clarke (1963, DC Dist Col) 222 F Supp 632, vacated on other grounds (1963, DC Dist
Col) 223 F Supp 795.
Plaintiff, a subsidiary corporation, was not required to answer interrogatories which sought information as to sales
made by its parent corporation. Wirtz v Local Union 169, International Hod Carriers', etc. (1965, DC Nev) 37 FRD
349, 58 BNA LRRM 2364, 51 CCH LC P 19496, 9 FR Serv 2d 45D.36, Case 1.
Where intention of interrogatories was to establish entity which controlled steamship corporation and steamship
corporation of Puerto Rico, answer that one corporation held 227,933 shares out of total of 228,000 was sufficient
answer to interrogatory which asked steamship corporation to indicate percentage of stock held in its corporation and
total number of shares held in such corporation. Segarra v Waterman S.S. Corp. (1966, DC Puerto Rico) 41 FRD 245,
10 FR Serv 2d 924.
Plaintiff evaded response to interrogatories concerning "advances or other considerations" paid by plaintiff by taking
position that "plaintiff classifies its transmissions on account as loans as opposed to advances or advance commissions."
G. O. Coin Service, Inc. v Ace Vending Co. (1978, SD Ohio) 26 FR Serv 2d 601.
D. Refusal or Failure to Answer
1. In General
62. Generally
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USCS Fed Rules Civ Proc R 33
The proper remedy for failure to answer interrogatories is a motion for judgment by default, and not a motion to
require answers to the interrogatories. United States for benefit of General Electric Supply Corp. v W. E. O'Neil Const.
Co. (1940, DC Mass) 1 FRD 529.
Party who was dismissed from case upon court's granting its request for interpleader could not be compelled to
answer interrogatories served upon it before it was dismissed since it was no longer party; nonparty discovery would
have to be undertaken. Ellison v Runyan (1993, SD Ind) 147 FRD 186.
Party may not defer answering or refuse to answer interrogatory by suggesting that information may be forthcoming
during deposition to be taken at later date; such response is failure or refusal to answer interrogatory. Oleson v Kmart
Corp. (1997, DC Kan) 175 FRD 570, 39 FR Serv 3d 1215.
Where party fails to move for order compelling adversary to answer interrogatories, court does not have authority to
sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84 AFTR 2d 6063.
63. Effect of failure to answer
If party declines to answer interrogatories he may be precluded by court from offering proof at trial. Michigan
Window Cleaning Co. v Martino (1949, CA6 Mich) 173 F2d 466, 16 CCH LC P 65039.
Appellant's failure to answer voluminous and extensive interrogatories within time allowed which resulted in
summary grant of default against it when its motion for extension of time was denied was not of such monumental
degree as to warrant the harsh treatment accorded it by the trial judge in refusing to reopen the default. United States v
"Firmatron by Norruth" (1963, CA2 NY) 324 F2d 497, 7 FR Serv 2d 772.
Expenses are awarded under Rule 37(d) when fact that answers to interrogatories are evasive or incomplete cannot
be determined until further proceedings have been conducted to obtain information later determined to have been
withheld, since such evasive or incomplete answers are tantamount to no answer at all. Airtex Corp. v Shelley Radiant
Ceiling Co. (1976, CA7 Ill) 536 F2d 145, 190 USPQ 6, 25 FR Serv 2d 796.
The proper remedy for failure to answer interrogatories is a motion for judgment by default, and not a motion to
require answers to the interrogatories. United States for benefit of General Electric Supply Corp. v W. E. O'Neil Const.
Co. (1940, DC Mass) 1 FRD 529.
Where party fails to move for order compelling adversary to answer interrogatories, court does not have authority to
sanction adversary under FRCP 37. United States v Kattar (1999, DC NH) 191 FRD 33, 84 AFTR 2d 6063.
2. Grounds for Failure of Refusal to Answer
64. Generally
If party is unable to supply requested information, party may not simply refuse to answer, but must state under oath
that he is unable to provide information and set forth efforts he used to obtain information. Hansel v Shell Oil Corp.
(1996, ED Pa) 169 FRD 303, 1996-2 CCH Trade Cases P 71626, 37 FR Serv 3d 193.
65. Embarrassment or disgrace
Defendant would not necessarily be excused from answering interrogatories because he would be subject to disgrace
and discredit. Hope v Burns (1947, DC Ky) 6 FRD 556.
In civil rights action for injuries allegedly sustained as result of beatings by three policemen, plaintiff's motion to
compel answers to interrogatories seeking information regarding identity of persons would be granted where potential
embarrassment of any person sought to be discovered by interrogatories was outweighed by possible miscarriage of
justice to plaintiff should identity of material witness be concealed. Ballard v Terrak (1972, ED Wis) 58 FRD 184, 17
FR Serv 2d 893.
66. Lack of knowledge
In wrongful death action, although plaintiffs were not eyewitnesses to accident resulting in decedent's death, such did
not obviate necessity of plaintiffs' answering interrogatories as to what they claimed. Robinson v Tracy (1954, DC Mo)
16 FRD 113.
Answer to interrogatories cannot be avoided by alleging ignorance if party can obtain the information from sources
under its control. Greenbie v Noble (1955, DC NY) 18 FRD 414, 107 USPQ 356.
Individual party is in no better position than corporation to claim lack of knowledge if information reasonably can be
secured, whether from his attorney or otherwise. Pilling v General Motors Corp. (1968, DC Utah) 45 FRD 366.
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USCS Fed Rules Civ Proc R 33
If party upon whom interrogatory is propounded is unable to answer for lack of information or for other reason he
should indicate reasons rather than ignore inquiry in whole or in part; if interrogatory is deemed in good faith to be
improper, objections should be timely filed. Pilling v General Motors Corp. (1968, DC Utah) 45 FRD 366.
Defendant's motion for order requiring plaintiff to answer five interrogatories would be denied where, to each of five
interrogatories, plaintiff responded that he was unable to answer, "because I am not learned in the law," and information
sought was at least mixed as to fact and law. Cale v Outboard Marine Corp. (1969, DC Wis) 48 FRD 328.
Rule 33 does not require individual party upon whom interrogatories are served to make inquiry as to facts that are
necessary to answer interrogatory. Economou v Butz (1979, SD NY) 466 F Supp 1351, affd without op (1980, CA2
NY) 633 F2d 203, 1981 F2d 17718.
67. --Corporations
Agent who answers interrogatories on behalf of corporation does not need to have personal knowledge; corporation's
attorney will do. United States v 42 Jars (1959, CA3 NJ) 264 F2d 666, 1 FR Serv 2d 537.
Objections by one of defendants to interrogatories calling for information concerning internal business affairs of its
subsidiaries not parties to action and related to defendant only through stock ownership was overruled, since answer
could not be avoided if corporation could obtain information from sources under its control, and if not, then defendant
should so state under oath. Greenbie v Noble (1955, DC NY) 18 FRD 414, 107 USPQ 356.
Answering officer of corporation shall furnish such information as is within knowledge of officers of corporation;
thus, answering officer cannot be compelled to disclose information which is in hands of subsidiary or affiliated
corporation and which he can obtain only through investigation of their internal affairs. Stanzler v Loew's Theatre &
Realty Corp. (1955, DC RI) 19 FRD 286.
Corporation cannot avoid answering interrogatory by allegation of ignorance if it can obtain information from
sources under its control. Security Mut. Casualty Co. v Rich (1956, DC Pa) 20 FRD 112.
If defendants' subsidiaries or controlled corporations possessed desired information and defendants' control over such
corporations is such that information is available to defendants, defendants cannot refuse to answer merely on ground
that source of information was separate corporate entity. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22
FRD 494, 1 FR Serv 2d 517.
In action brought by insurer as assignee of corporation on subrogated insurance claim, insurer could not refuse to
answer interrogatories on ground that information sought was not within insurer's knowledge and could only be
obtained from corporation; to allow insurer to take advantage of circumstance where it would be unusual for insurer to
have knowledge of all facts would be to give insurer advantage not intended or appropriate under philosophy of Federal
Rules of Civil Procedure. Firemen's Mut. Ins. Co. v Erie-Lackawanna R. Co. (1964, ND Ohio) 35 FRD 297, 8 FR Serv
2d 33.21, Case 4.
Rule 33 of Federal Rules of Civil Procedure required corporation to disclose information available from sources
under its control and parent corporation served with interrogatories could not effectively defend against disclosure on
ground that information was within possession of wholly owned subsidiary. Westinghouse Credit Corp. v Mountain
States Mining & Milling Co. (1965, DC Colo) 37 FRD 348, 9 FR Serv 2d 33.22, Case 1.
Corporate party cannot avoid answering interrogatory if it can obtain information from agents, from persons who
have acted in its behalf, or from sources under its control. Skelton & Co. v Goldsmith (1969, DC NY) 49 FRD 128.
A corporation cannot successfully avoid answering interrogatories served upon it by its allegation of ignorance of
facts inquired into, where it could have obtained the information requested therein from sources under its control. Holt
v Southern R. Co. (1969, DC Tenn) 51 FRD 296.
Party may be compelled to disclose information in hands of wholly owned subsidiary. Sol S. Turnoff Drug
Distributors, Inc. v N. V. Nederlandsche Combinatie Voor Chemische Industrie (1972, ED Pa) 55 FRD 347, 16 FR Serv
2d 113.
68. --Information within knowledge of attorney
A party cannot refuse to answer interrogatories on the ground that the information sought is solely within the
knowledge of his attorney. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395
(superseded by statute on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638
P2d 1372) and (superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d
149).
Discovery procedures under Rule 33 and Rule 34 may be employed only as to parties to an action, and these rules
may not be used to obtain information directly from a party's counsel. Seven-Up Co. v Get Up Corp. (1962, ND Ohio)
30 FRD 550, 133 USPQ 258, 5 FR Serv 2d 554.
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USCS Fed Rules Civ Proc R 33
If inquiry is made in language of rule, simply, and without reference to any personal knowledge of opposite party, all
information available to interrogated party must be supplied, including information possessed by or within knowledge
of party's attorney, investigators employed by or on behalf of the party, party's insurer, and agents or representatives.
Wycoff v Nichols (1962, WD Mo) 32 FRD 369, 7 FR Serv 2d 137.
Where interrogatories requesting plaintiff to supply names and addresses of possible eyewitnesses which were
obtained by investigator employed by plaintiff's attorney were not propounded to plaintiff's attorney, plaintiff could not
refuse to answer such interrogatory. Roberson v Ryder Truck Lines, Inc. (1966, ND Miss) 41 FRD 166, 10 FR Serv 2d
920.
Party cannot refuse to answer interrogatories merely on ground that information sought is solely within knowledge of
his attorney. Pilling v General Motors Corp. (1968, DC Utah) 45 FRD 366.
69. Self-incrimination
Officer of corporation may invoke his Fifth Amendment privilege against self-incrimination with regard to
interrogatories directed to corporation and is not barred from asserting his privilege simply because corporation has no
privilege of its own, or because proceeding was civil rather than criminal in character; however, service of
interrogatories under Rule 33 on corporation obliges corporation to appoint agent who can, without fear of
self-incrimination, furnish such requested information as is available to corporation; corporation cannot satisfy its
obligation under rule simply by pointing to agent about to invoke his constitutional privilege against self-incrimination,
since otherwise corporation would be effectively permitted to improperly assert on its own behalf personal privilege of
its individual agents. United States v Kordel (1970) 397 US 1, 25 L Ed 2d 1, 90 S Ct 763, 13 FR Serv 2d 868.
Corporate objection to interrogatories claiming privilege against self-incrimination is invalid, and under Rule 33
corporation has duty to find an officer or agent who can make answer without necessity for personally claiming
privilege. United States v 3963 Bottles, etc. (1959, CA7 Ill) 265 F2d 332, 2 FR Serv 2d 503, cert den (1959) 360 US
931, 3 L Ed 2d 1544, 79 S Ct 1448.
Rule 33(a) provides that each interrogatory shall be answered separately and fully, and Rule is explicit that blanket
refusals to answer based upon privilege against self-incrimination are not acceptable. General Dynamics Corp. v Selb
Mfg. Co. (1973, CA8 Mo) 481 F2d 1204, 17 FR Serv 2d 1221, cert den (1974) 414 US 1162, 39 L Ed 2d 116, 94 S Ct
926.
Proper assertion of Fifth Amendment requires, at minimum, good faith effort to provide trial judge with sufficient
specific information from which he can make intelligent evaluation as to whether it is evident from implications of
question, in setting in which it is asked, that responses to question or explanation of why it cannot be answered might
cause injurious disclosure. Davis v Fendler (1981, CA9 Ariz) 650 F2d 1154, 31 FR Serv 2d 1584.
Since action for treble damages does not bar subsequent criminal prosecution under Emergency Price Control Act,
privilege against self-incrimination can be invoked by defendants regardless of whether action be regarded as remedial
or penal; defendants must answer interrogatory propounded by administrator seeking certain information which
defendants should have in their records and which administrator could seek by examination of such records but
defendants will not be required to answer interrogatories asking what regulations of Office of Price Administration were
followed in establishing selling price of certain electric generating plants, since if defendant did not follow such
regulations answers to such interrogatories would establish defendants' guilt. Porter v Heend (1947, DC Ill) 6 FRD
588.
Since corporation could appoint some officer or agent to answer interrogatories for it, who would not be personally
incriminated by such answers, and since the corporation itself could not claim any privilege against self-incrimination, it
had no right to plead that privilege, as an objection to answer the interrogatories in question. United States v 42 Jars,
etc. (1958, DC NJ) 162 F Supp 944, affd (1959, CA3 NJ) 264 F2d 666, 1 FR Serv 2d 537.
Public policy does not prohibit compelling officer or agent of corporation to answer interrogatories propounded to
corporation in civil suit when those answers might tend to incriminate corporation in parallel criminal proceeding;
however, better practice is to require corporate claimant to appoint agent who can answer and sign interrogatories
propounded without fear of self-incrimination. United States v An Article of Drug, etc. (1967, DC Del) 43 FRD 181,
11 FR Serv 2d 840.
70. Miscellaneous
In proceeding involving alleged invalidity and infringement of patents, where party refused to answer certain
interrogatories on ground answers sought would be speculative in nature, party refusing to answer would be required to
respond to interrogatories which would enable party seeking answers to determine extent of proof required, but to insure
against burdensome inquiries, party would not be required to answer interrogatories seeking comparisons of patents
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USCS Fed Rules Civ Proc R 33
unless or until party seeking answers gave assurance that number of comparisons ultimately sought would be limited.
Scovill Mfg. Co. v Sunbeam Corp. (1973, DC Del) 357 F Supp 943, 178 USPQ 203, 17 FR Serv 2d 342.
Defendant in patent infringement action would be required to answer interrogatory as to whether defendant had filed
patent application after institution of suit, but would not be required to answer interrogatory as to status and specifics of
such application where slight value of patent application to plaintiff did not surpass defendant's interest in keeping
application secret and where defendant had taken steps to inform plaintiff of characteristics of alleged infringing device,
including diagrams and invitation to observe machine in operation. Cleo Wrap Corp. v Elsner Engineering Works, Inc.
(1972, MD Pa) 59 FRD 386, 176 USPQ 266, 17 FR Serv 2d 1392.
E. Answering Party
71. Generally
Where it was submitted by plaintiff's attorney that plaintiff was too ill physically and mentally to answer any of
interrogatories but that other party be required to answer in lieu of plaintiff, court found it unnecessary to pass upon
question since it felt that no competent proof was presented to satisfy court that plaintiff was unable to answer
interrogatories but plaintiff was not precluded from renewing this phase of motion upon submission of proper proof.
Riordan v Ferguson (1942, DC NY) 2 FRD 349.
Under Rule 33 interrogatories must be directed only to parties and may be at early stage of case. McNamara v
Erschen (1948, DC Del) 8 FRD 427.
Interrogatories are not subject to objection because addressed to persons who were not parties where interrogatory
merely required defendants to supply information which might be known to other corporations, yet available to
defendants. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22 FRD 494, 1 FR Serv 2d 517.
Interrogatories are to be answered by parties, not their attorneys. Kustom Signals v Applied concepts (1998, DC
Kan) 181 FRD 489.
72. Corporations
Corporate defendant would be estopped to deny authority of person chosen by it to speak for it or to deny
truthfulness of answers to interrogatories; by corporate defendant's own acts it has made particular person competent to
testify in its behalf, even though such person might otherwise not have been competent to do so. Holler v General
Motors Corp. (1944, DC Mo) 3 FRD 296.
In action for treble damages under federal antitrust laws, court would refuse to strike or modify interrogatories
propounded by plaintiffs notwithstanding interrogatories sought to elicit answers from companies under control of
interrogated defendant. Leonia Amusement Corp. v Loew's, Inc. (1955, DC NY) 18 FRD 503.
Since mystical qualities are not attributed to corporate plaintiff, it is required to answer interrogatories only on basis
of information within its possession; therefore, corporate plaintiff's objections to interrogatories, requiring information
concerning officer of plaintiff of which plaintiff corporation could not be expected to have knowledge, should be
framed as answers to defendant's interrogatories. Payer, Hewitt & Co. v Bellanca Corp. (1960, DC Del) 26 FRD 219,
4 FR Serv 2d 503.
In civil action for infringement of patent against 5 corporate defendants, 2 of which were foreign corporations,
interrogatories were properly propounded upon such foreign corporations. General Industries Co. v Birmingham
Sound Reproducers, Ltd. (1961, ED NY) 26 FRD 559, 4 FR Serv 2d 525.
Rule 33 requires corporation to furnish such information as is available from corporation itself or from sources under
its control. Brunswick Corp. v Suzuki Motor Co. (1983, ED Wis) 96 FRD 684, 38 FR Serv 2d 1246.
73. --Necessity of serving officer expected to answer
Provision in Rule 33 that if party served with interrogatories is corporation or partnership or association,
interrogatories may be answered by any officer or agent, who shall furnish such information as is available to party,
does not mean that party serving interrogatories may select particular officer or agent of adverse party and direct
interrogatories by name to such officer or agent; thus, objections to set of interrogatories directed to president of
defendant corporation would be sustained. Holland v Minneapolis-Honeywell Regulator Co. (1961, DC Dist Col) 28
FRD 595, 5 FR Serv 2d 516.
Where written interrogatories are served on corporation, Rule 33 does not require service on the particular officers
who are expected to answer on behalf of the corporate party, but merely service on the party. Smith v Insurance Co. of
North America (1962, MD Tenn) 30 FRD 534, 5 FR Serv 2d 450.
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74. --Attorney
Interrogatories could not be served upon defendants' attorney. Steelman v United States Fidelity & Guaranty Co.
(1964, WD Mo) 35 FRD 120, 8 FR Serv 2d 33.21, Case 5.
Attorney for corporation was proper person to answer interrogatories directed to it. Segarra v Waterman S.S. Corp.
(1966, DC Puerto Rico) 41 FRD 245, 10 FR Serv 2d 924.
Plaintiff's interrogatories addressed to corporation defendant, not designating any particular person to answer them,
were properly answered by defendant's counsel, who had knowledge of the facts. Jones v Goldstein (1966, DC Md) 41
FRD 271, 10 FR Serv 2d 836, 10 FR Serv 2d 907.
75. --Comptroller
Plaintiff who had propounded interrogatories to a corporate defendant could not object to answers made by
"divisional comptroller" on the ground that he was not an officer competent to testify. Holler v General Motors Corp.
(1944, DC Mo) 3 FRD 296.
76. --Employees as "agents"
Term "agent" as used in Rule 33 does not include employees; engineer, fireman and crossing watchmen were not
"agents" of railroad for purposes of answering interrogatories. Waider v Chicago, R. I. & P. R. Co. (1950, DC Iowa)
10 FRD 263.
77. Interrogating party's designating person to answer
Provision in Rule 33 that if party served with interrogatories is corporation or partnership or association,
interrogatories may be answered by any officer or agent, who shall furnish such information as is available to party,
does not mean that party serving interrogatories may select particular officer or agent of adverse party and direct
interrogatories by name to such officer or agent; thus, objections to set of interrogatories directed to president of
defendant corporation would be sustained. Holland v Minneapolis-Honeywell Regulator Co. (1961, DC Dist Col) 28
FRD 595, 5 FR Serv 2d 516.
Parties serving interrogatories may not select particular person and direct that interrogatories be answered by such
person where such person is not a party; thus, objections to interrogatories would be sustained where interrogatories,
although entitled interrogatories to plaintiff (Secretary of Labor), contained directions that they be answered under oath
by persons in whose behalf action was brought by Secretary of Labor. Wirtz v I. C. Harris & Co. (1964, ED Mich) 36
FRD 116, 9 FR Serv 2d 33.21, Case 1.
Under FRCP 33(a), although interrogatories must be served on party, party served has discretion in selecting officer
or agent who is to answer them and verify answers; it is clear that whoever answers interrogatories, answers must
include whatever information is available to party. Law v NCAA (1996, DC Kan) 167 FRD 464, 1996-2 CCH Trade
Cases P 71518, vacated, writ granted, stay dissolved (1996, CA10) 96 F3d 1337, 1996-2 CCH Trade Cases P 71573, 35
FR Serv 3d 1527.
78. Members of class in class action
In a class action by shareholders against a corporation pursuant to Rule 23(b) of the Federal Rules of Civil Procedure
where absent members of the class of shareholders had been duly notified of the nature of the allegations and had been
given the opportunity to exclude themselves from the class action, and where, furthermore, they were at all times
notified of the orders issued by the court and informed as to the course of proceedings, the absent class members were
subject to discovery under Rules 33 and 34 of the Federal Rules of Civil Procedure despite the fact that they were not
formally parties to the litigation; therefore, when certain absent class members failed to produce documents and answer
interrogatories in accordance with the orders of the Court, the court acted within its discretion under Rule 37 of the
Federal Rules of Civil Procedure in dismissing the action with prejudice as to those members. Given the propriety of
the dismissal, a motion to set aside the judgment of dismissal under Rule 60 of the Federal Rules of Civil Procedure
made by absent class members who had not complied with the court's discovery orders was correctly denied. Brennan
v Midwestern United Life Ins. Co. (1971, CA7 Ind) 450 F2d 999, 15 FR Serv 2d 351, 13 ALR Fed 243, cert den (1972)
405 US 921, 30 L Ed 2d 792, 92 S Ct 957.
Discovery proceeding, such as proposed interrogatories, are improper directed as they are to members of the class
who are not named plaintiffs. Fischer v Wolfinbarger (1971, WD Ky) 55 FRD 129, CCH Fed Secur L Rep P 93235, 15
FR Serv 2d 905.
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USCS Fed Rules Civ Proc R 33
Although an action has been authorized as a class action, the members of the class who have not opted out are not
parties for the purposes of requiring them to answer interrogatories or to produce documents. Wainwright v Kraftco
Corp. (1972, ND Ga) 54 FRD 532, 1972 CCH Trade Cases P 73946, 15 FR Serv 2d 1333.
Absent class members are not to be treated as "parties" and are, therefore, not subject to discovery rules applicable to
parties; absent class members are not required to answer defendant's interrogatories which were complicated, obtuse and
vexatious set of inquiries consisting of 24 pages and containing 72 questions. Hawkins v Holiday Inns, Inc. (1977, WD
Tenn) 24 FR Serv 2d 357.
Plaintiffs' objection in antitrust litigation to anyone other than active class representatives and opt-out plaintiffs
responding to interrogatories of defendants on ground that they are not "parties" within meaning of Rule 33 will be
overruled because plaintiffs will not be allowed to self-select active class representatives and then leave discovery
limited to portion of plaintiffs selected; only when defendant seeks discovery from absent class members must strong
showing of necessity, absence of an improper motive, and demonstration that information sought is not available from
representative parties be made; named plaintiffs are always parties subject to discovery, while absent class members are
not subject to discovery except under special circumstances; plaintiffs who have brought actions that were consolidated
as class action in antitrust litigation are properly subject to discovery as parties to this litigation without any showing of
special circumstances. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
79. Municipal corporations
Municipal corporation is required to comply with Rule 33 in giving answers to interrogatories. Drum v Tonawanda
(1952, DC NY) 13 FRD 317.
Where alleged infringer claimed it timely and appropriately objected to patent holder's document request as calling
for privileged information, alleged infringer did not waive its objection when it raised it in response to patent holder's
motion to compel, where alleged infringer's response was timely filed, because Fed. R. Civ. P. 34, which applied to
document requests, did not provide for waiver of objections as did Fed. R. Civ. P. 33, which applied to interrogatories.
Caliper Techs. Corp. v Molecular Devices Corp. (2003, ND Cal) 213 FRD 555.
80. Next friend
A next friend is not a party, and is accordingly not subject to interrogation under Rule 33. Ju Shu Cheung v Dulles
(1954, DC Mass) 16 FRD 550.
Next friend is not a party to a suit. Hall v Hague (1964, DC Md) 34 FRD 449, 8 FR Serv 2d 33.21, Case 2.
81. President
Information controlled by party is available to him and must be used to supply full and complete answers to
interrogatories served on him by another party; President has control over information within Executive Branch and he
must supply full and complete answers to any interrogatory served on him; President is not entitled to any special
treatment when asked to produce evidence and if he has legitimate recognized reasons for not answering interrogatory,
such as claim of privilege, he must assert it. Trane Co. v Klutznick (1980, WD Wis) 87 FRD 473, 30 FR Serv 2d 229.
82. Third-party defendants
Plaintiff may not require third-party defendant to answer interrogatories as third-party defendant is not adverse party
as to plaintiff under Rule 33. Angelus v Isthmian Lines (1960, ED Pa) 3 FR Serv 2d 530.
Third-party defendants would have to answer plaintiff's interrogatories, notwithstanding argument that they were not
adverse parties to plaintiff, since although Rule 33 once was directed at interrogatories to adverse party, such
requirement had been removed by 1970 amendment so that interrogatories could be served upon any other party.
United States v Burczyk (1975, ED Wis) 68 FRD 465, 20 FR Serv 2d 900.
83. United States
When the government is plaintiff in an action, it may not object to interrogatories in respect to relevant information
on the ground that the official files are confidential, since by bringing suit it waives such privilege. Fleming v Bernardi
(1941, DC Ohio) 1 FRD 624.
In a civil action by the government, interrogatories relating to matters involved in prior criminal prosecution against
the same defendant may be allowed even though the government intends to put the record and judgment in the criminal
case in evidence and even though the answers to the interrogatories may be inadmissible in evidence; while the
government as a party should not be compelled to answer interrogatories relating to confidential matters or investigative
reports, it may be required to give notice of the facts on which it relies, no matter what the source of information may
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USCS Fed Rules Civ Proc R 33
be. In order to enable defendant to properly prepare for trial in a case brought by the government, the government
should be required to answer interrogatories, unless such disclosure is against public policy in a particular case. United
States v General Motors Corp. (1942, DC Ill) 2 FRD 528.
In an action under the Fair Labor Standards Act [29 USCS § § 201 et seq.], the government is in no different
position than any other litigant and is therefore bound by these rules. Walling v Richmond Screw Anchor Co. (1943,
DC NY) 4 FRD 265.
Since Rule 33(a) provides that interrogatories shall be answered by party served, or, if party served is government
agency, by officer or agent who shall furnish such information as is available to party, interrogatories, although
addressed to District Engineer of District Corps of Engineers, might be answered by any officer or agent of government,
but such officer or agent would be required to furnish such information as was available to government, and while
United States Attorney might answer interrogatories addressed to another government official, such attorney had to
consult with other relevant sources so that answer to interrogatory would contain such information as was available to
party. United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR Serv 2d 1100.
F. Signing and Verification
84. Generally
In action for treble damages and injunctive relief pursuant to Robinson-Patman Act and Sherman antitrust laws,
answers to interrogatories filed by plaintiffs were technically defective where answers were not signed by respective
plaintiffs as specifically required by Rule 33. Nagler v Admiral Corp. (1958, SD NY) 167 F Supp 413, 1 FR Serv 2d
557.
In action for treble damages and injunctive relief pursuant to Robinson-Patman Act and Sherman antitrust laws,
verifications by various plaintiffs which were apparently meant to apply both to consolidated and separate answers to
interrogatories, though they did not say so, were entirely insufficient to comply with requirement that answer shall be
answered separately and fully "under oath." Nagler v Admiral Corp. (1958, SD NY) 167 F Supp 413, 1 FR Serv 2d 557.
Where answer to interrogatories addressed to individual defendant was not personally signed by him, he would be
required to respond to such interrogatories under his own signature. Jones v Goldstein (1966, DC Md) 41 FRD 271, 10
FR Serv 2d 836, 10 FR Serv 2d 907.
The unavailability of a party necessary to sign an interrogatory as required under Rule 33(c), is not a defense to the
invocation of sanctions under Rule 37, where it was not shown that the party in question was not once available to sign
the interrogatories during the year preceding the application under Rule 37. Cabales v United States (1970, SD NY) 51
FRD 498, 14 FR Serv 2d 1297, affd (1971, CA2 NY) 447 F2d 1358.
In antitrust litigation where plaintiff submitted answers to interrogatories which had been initially propounded some
4 months before, single paragraph answer did not comply with Rule 33(a) where it was unsigned and unsworn. In re
Professional Hockey Antitrust Litigation (1974, DC Pa) 63 FRD 641, 1974-2 CCH Trade Cases P 75209, revd (1976,
CA3 Pa) 531 F2d 1188, 1976-1 CCH Trade Cases P 60747, 21 FR Serv 2d 391, revd (1976) 427 US 639, 49 L Ed 2d
747, 96 S Ct 2778, 1976-1 CCH Trade Cases P 60941, 21 FR Serv 2d 1027, reh den (1976) 429 US 874, 50 L Ed 2d
158, 97 S Ct 196, 97 S Ct 197 and affd without op (1976, CA3 Pa) 541 F2d 275 and affd without op (1976, CA3 Pa)
541 F2d 275 and affd without op (1976, CA3 Pa) 541 F2d 275 and affd without op (1976, CA3 Pa) 541 F2d 275 and
affd without op (1976, CA3 Pa) 541 F2d 275.
85. Next friend
The next friend of a minor plaintiff may sign and swear to the answers to interrogatories or the minor's attorney may
sign them. Hall v Hague (1964, DC Md) 34 FRD 449, 8 FR Serv 2d 33.21, Case 2.
86. Attorney
Exceptions to interrogatories on ground that answers were not sworn to by defendant in accordance with Rule 33
would be denied where action to recover damages for death of decedent was brought against uninsured motorist under
State of Maryland's Unsatisfied Claim and Judgment Fund Board and answers to interrogatories were filed by lawyer
acting as attorney for defendant who had been engaged by Board; attorney in reality defended fund and not defendant.
Maryland use of Summerlin v Kemp (1961, DC Md) 194 F Supp 838, 4 FR Serv 2d 663.
In action for personal injuries to 7-year-old girl brought in her name as plaintiff by her father and next friend, next
friend or plaintiff's attorney answers to interrogatories could be signed and sworn to by next friend or signed by attorney
for plaintiff. Hall v Hague (1964, DC Md) 34 FRD 449, 8 FR Serv 2d 33.21, Case 2.
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USCS Fed Rules Civ Proc R 33
Since interrogatories answered by United States Attorney were not answered under oath, although Rule 33(a) clearly
provides that answers to interrogatories be under oath, answers would have to be refiled under oath. United States v
58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR Serv 2d 1100.
In action by Indian tribe to determine title to land, answers to interrogatories served upon Indian tribe could properly
be signed by its attorney. Mashpee Tribe v Mashpee (1977, DC Mass) 25 FR Serv 2d 216.
Although answers to interrogatories did not comply with Rule 33 in that they were signed and verified by plaintiff's
attorney rather than by plaintiff, where plaintiff's sworn affidavit in support of motion for summary judgment
incorporated answers to interrogatories served on her and, therefore, served same purpose as her signing answers, such
answers may be considered in connection with motion for summary judgment particularly since defendant had not
moved to strike answers, and answers had been served several months prior to summary judgment motions without
objection to their form. Greene v United States (1978, ND Ill) 447 F Supp 885, 78-1 USTC P 13240, 42 AFTR 2d
78-6387.
87. --For corporation
Litigant's attorney can be considered his agent for purpose of answering and signing interrogatories where litigant is
corporation. Segarra v Waterman S.S. Corp. (1966, DC Puerto Rico) 41 FRD 245, 10 FR Serv 2d 924.
Answers to interrogatories addressed for corporate defendant were properly signed by its attorneys. Jones v
Goldstein (1966, DC Md) 41 FRD 271, 10 FR Serv 2d 836, 10 FR Serv 2d 907.
Attorney for corporate defendant may sign and swear to answers to interrogatories addressed to it if he makes oath
that to best of his knowledge, information and belief answers are true and contain all information which is available to
corporation on interrogatories which are being answered. Fernandes v United Fruit Co. (1970, DC Md) 50 FRD 82, 14
FR Serv 2d 510.
IV. OBJECTIONS TO INTERROGATORIES; PROCEDURAL MATTERS
88. Generally
Objections to interrogatories would not be considered where, in another case, court directed that filing of objections
to and answering of interrogatories were to await trial of issue of statute of limitations and it might well result in
duplication of effort to pass upon objections to interrogatories in subject case. Momand v Paramount Pictures
Distributing Co. (1941, DC Mass) 36 F Supp 568.
With respect to ruling on objections to interrogatories, in exercise of its discretion under Rule 33, court should allow
discovery unless it is satisfied that administration of justice would be impeded by such allowance. Mall Tool Co. v
Sterling Varnish Co. (1951, DC Pa) 11 FRD 576, 91 USPQ 322.
In action seeking declaratory judgment with respect to validity and alleged infringement of patents, question whether
plaintiff was estopped to deny validity of patents was not properly before court on objections to interrogatories; if
defendants wished to raise question which, if sustained by court, would dispose of plaintiff's case, they should do so by
motion for summary judgment or by motion to dismiss. Mall Tool Co. v Sterling Varnish Co. (1951, DC Pa) 11 FRD
576, 91 USPQ 322.
Court will not allow discovery by interrogatories to become entangled in mass of objections. Seff v General
Outdoor Advertising Co. (1951, DC Ohio) 11 FRD 597.
Where defendants did not move to strike complaint, they could not collaterally attack it by way of objections to
interrogatories. Curtis v Loew's, Inc. (1957, DC NJ) 20 FRD 444.
Interrogatory is not subject to objection if question is germane and there is some possibility that answer will lead to
the production of relevant evidence. Nichols v Philadelphia Tribune Co. (1958, DC Pa) 22 FRD 89.
Objections to interrogatories are not properly made in attempt as part of answers to set of interrogatories as a whole.
Cardox Corp. v Olin Mathieson Chemical Corp. (1958, SD Ill) 23 FRD 27, 120 USPQ 439, 1 FR Serv 2d 610.
In civil antitrust action, government's reply to certain interrogatories that it had insufficient information to form
answer was vague statement and was not proper objection to inquiry; government either knows answer or it does not
and if it does not know after reasonably diligent search it should so state. United States v Grinnell Corp. (1962, DC RI)
30 FRD 358, 5 FR Serv 2d 564.
One who is served with interrogatories has duty either to answer them or to move for protective order asserting his
objection to interrogatories. Fond Du Lac Plaza, Inc. v Reid (1969, ED Wis) 47 FRD 221, 13 FR Serv 2d 1011.
Although evidentiary hearing may be required when court imposes sanctions under its inherent powers alone,
hearing is not required for sanctions imposed under FRCP 26(g), 33(b), 34(b) and 37(a)(4), and 28 USCS § 1927.
Medical Billing v Medical Mgmt. Sciences (1996, ND Ohio) 169 FRD 325.
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USCS Fed Rules Civ Proc R 33
Party serving untimely or otherwise objectionable interrogatories, to which opposing party timely objects, cannot
unilaterally withdraw interrogatories, and such interrogatories must be counted toward numerical limit. Walker v
Lakewood Condo. Owners Ass'n (1999, CD Cal) 186 FRD 584, 44 FR Serv 3d 1027.
89. Timely objection required
Failing to answer interrogatory may not be excused on ground that questions are objectionable unless answering
party timely files his objection under rules. Spilotro v United States (1973, CA7) 73-2 USTC P 16115.
No objections to interrogatories were permitted to be filed after expiration of time limit where no reason appeared
why additional time was needed to object to the form or substance of the interrogatories. Sturdevant v Sears, Roebuck
& Co. (1963, WD Mo) 32 FRD 426, 7 FR Serv 2d 547.
In antitrust litigation plaintiffs' catch-all objection, naming every conceivable ground, including allegation that
interrogatories are duplicative, not relevant to subject matter of litigation, oppressive, and overly vague, is so broad as to
be meaningless; and although filing by plaintiffs of catch-all objection is clearly improper, supplement filed after time
to respond had run, which contains specific objections to interrogatories may be considered; but where reasonable
question exists as to whether interrogatory should be answered, plaintiffs who file untimely objections will be ruled
against. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
Interrogatory objections not included in timely response are waived even if objections are contained in later untimely
response, absent showing of good cause; however, objections not interposed in initial response, but interposed in
supplemental response served within period allowed by FRCP 33(b) for response or as extended by stipulation, are not
waived. Safeco Ins. Co. of Am. v Rawstorm (1998, CD Cal) 183 FRD 668.
Defendants' failure to make proper objection to interrogatories within ten days or to answer them within fifteen days
did not preclude them from offering further objections they might have offered within the original ten-day period.
Smith v Insurance Co. of North America (1962, MD Tenn) 30 FRD 534, 5 FR Serv 2d 450.
90. --Extension of time
The filing of an application for an extension of time to file objections to interrogatories does not stay the running of
the time, nor extend the time for filing of objections. Sturdevant v Sears, Roebuck & Co. (1963, WD Mo) 32 FRD 426,
7 FR Serv 2d 547.
Neither fact that defense counsel believed that agreement existed with plaintiffs' counsel that defendants would be
granted extension in which to file both answers and objections to plaintiffs' interrogatories nor fact that such agreement
did exist excuses failure of defendants to obtain order from court extending time in which to respond. Bumpers v
International Mill Service, Inc. (1984, ED Pa) 40 FR Serv 2d 1334.
91. Burden of proof
In patent infringement suit, objection to interrogatories on ground that they did not contain elements of claims of
plaintiff's patent would be overruled where no copy of patent was before court, and burden was upon party filing
objections to sustain his reasons why interrogatories should not be answered. Blanc v Smith (1943, DC Iowa) 3 FRD
182.
Burden is upon objector to show that the answer to the interrogatories is privileged, not relevant, or in some other
way is not the proper subject of an interrogatory. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
Burden is upon objecting party to show that his objections to interrogatories should be sustained. Mall Tool Co. v
Sterling Varnish Co. (1951, DC Pa) 11 FRD 576, 91 USPQ 322; Pappas v Loew's, Inc. (1953, DC Pa) 13 FRD 471;
United States v Nysco Laboratories, Inc. (1960, SD NY) 26 FRD 159, 4 FR Serv 2d 550; Pressley v Boehlke (1963, WD
NC) 33 FRD 316, 7 FR Serv 2d 656; Wirtz v Capitol Air Service, Inc. (1967, DC Kan) 42 FRD 641, 11 FR Serv 2d 820;
United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR Serv 2d 1100.
If party wishes to object to interrogatory on grounds of prior deposition or production of documents covering same
question, it is incumbent upon that party to show that hardship or injustice is being done to it. B. & S. Drilling Co. v
Halliburton Oil Well Cementing Co. (1959, SD Tex) 24 FRD 1, 2 FR Serv 2d 532.
Burden of proof is generally on party that objects to interrogatory; thus, objection that interrogatories were
burdensome could not be considered without some indication of why interrogatory was difficult to answer. Leumi
Financial Corp. v Hartford Acci. & Indem. Co. (1969, SD NY) 295 F Supp 539, 13 FR Serv 2d 888.
Onus is on party objecting to interrogatory to state grounds for objection with specificity. Momah v Albert Einstein
Medical Ctr. (1996, ED Pa) 164 FRD 412.
Once party has requested discovery, burden is on party objecting to show that responding to discovery is unduly
burdensome. Pulsecard, Inc. v Discover Card Servs. (1996, DC Kan) 168 FRD 295.
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USCS Fed Rules Civ Proc R 33
92. Specific objections required
Unilateral declaration that no objections are waived will not be allowed to displace command of Rule 33 that party
either answer fully or object. Dollar v Long Mfg., N. C., Inc. (1977, CA5 Ga) 561 F2d 613, 2 Fed Rules Evid Serv 760,
24 FR Serv 2d 408, reh den (1977, CA5 Ga) 565 F2d 163 and reh den (1977, CA5 Ga) 565 F2d 163 and cert den (1978)
435 US 996, 56 L Ed 2d 85, 98 S Ct 1648.
A general objection that interrogatories constitute "fishing expedition" is of no avail. Byers Theaters, Inc. v Murphy
(1940, DC Va) 1 FRD 286.
Objections to interrogatories should be sufficiently specific to end that court may, in considering such objections
with interrogatory propounded, ascertain therefrom their claimed objectionable character; general objections to
interrogatories are not proper. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
General objections that interrogatories are unreasonably burdensome, oppressive and vexatious are not proper.
Hoffman v Wilson Line, Inc. (1946, DC Pa) 7 FRD 73.
In action against corporation organized and existing under laws of Virginia, where injuries allegedly sustained by
plaintiff on train in which he was passenger, objections to interrogatories on ground that they would cause annoyance,
expense, and oppression to defendant without serving any relevant purpose to issue of jurisdiction involved was too
general to be entertained by court; thus, objections would be overruled and defendant reserved right to make complaint
to particular question, stating its specific reason therefor, which it considers objectionable. Boone v Southern R. Co.
(1949, DC Pa) 9 FRD 60.
Defendant's objections to plaintiff's interrogatories on grounds that they were onerous and burdensome, sought
information which was easily available to plaintiff as to defendant, and required defendant to make search and compile
data not readily known to him were general objections; objections to interrogatories should be sufficiently specific so
that court may ascertain therefrom their claimed objectionable character; general objections to interrogatories are not
proper and should not be offered. Woods v Kornfeld (1949, DC Pa) 9 FRD 196.
Objections to interrogatories must be sufficiently specific that court may, in considering such objections with
interrogatories propounded, ascertain therefrom their claimed objectionable character. Pappas v Loew's, Inc. (1953,
DC Pa) 13 FRD 471.
Interrogatories are not subject to general objection that they are burdensome and oppressive. Erone Corp. v Skouras
Theatres Corp. (1958, SD NY) 22 FRD 494, 1 FR Serv 2d 517.
General objections on ground that information sought by interrogatory is matter of public record and that opinions,
conclusions and contentions are called for are without merit. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22
FRD 494, 1 FR Serv 2d 517.
Objections to interrogatories must be specific and supported by detailed explanation why interrogatories or class of
interrogatories are objectionable; in action for injunction brought by government under Federal Food, Drug and
Cosmetic Act, defendants did not comply with procedure for objecting to interrogatories where they did not object to
specific interrogatory or class of interrogatories which they identified, but interposed objections, based upon general
principles, imposing upon court task of selecting from 73 interrogatories embracing 800 questions those particular
interrogatories to which general objections interposed by defendant might be applicable. United States v Nysco
Laboratories, Inc. (1960, SD NY) 26 FRD 159, 4 FR Serv 2d 550.
In civil antitrust action, government's motion would be denied insofar as it sought rejection in toto of interrogatories
propounded by defendant. United States v Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv 2d 571.
In civil antitrust action brought by United States against two corporations, to extent that government sought blanket
rejection of all answered interrogatories its motions for order sustaining its objections to defendants' interrogatories
would be denied where, for most part, what was sought in unanswered questions was not discovery of facts related to
controversy which were unavailable to defendants but factual contentions and legal theories upon which government
intended to rely at trial. United States v Carter Products, Inc. (1961, SD NY) 28 FRD 373, 4 FR Serv 2d 553.
In action under Labor-Management Reporting and Disclosure Act of 1959, where defendant's objection to
interrogatory on ground that to procure home addresses of number of stewards (estimated at exceeding 600) would be
oppressive and would require excessive of amount of research "and/or" compilation of data, not readily available, as
requested, at great expense, was not supported by specific showing, there could be no ruling on objection. McKeon v
Highway Truck Drivers & Helpers, etc. (1961, DC Del) 28 FRD 592, 49 BNA LRRM 2009, 43 CCH LC P 17249, 5 FR
Serv 2d 560.
In case involving claims for $ 500,000 penalties and attorneys' fees, information requested by interrogatories would
facilitate disposition of litigation, either favorably or unfavorably to plaintiff, and since information sought was of type
that was peculiarly within knowledge of plaintiff, objection that interrogatories as a whole were burdensome would be
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USCS Fed Rules Civ Proc R 33
overruled; general objections are not favored in any event. Young Spring & Wire Corp. v American Guarantee &
Liability Ins. Co. (1963, WD Mo) 32 FRD 345, 7 FR Serv 2d 660.
General objections to interrogatories are not sufficient. Apco Oil Corp. v Certified Transp., Inc. (1969, DC Mo) 46
FRD 428.
Objections to interrogatories must be specific and be supported by detailed explanation as to why interrogatories or
class of interrogatories is objectionable, accordingly, where plaintiff, in its answers to interrogatories, claimed that
materials requested were privileged but did not state why such materials were subject to any privilege, plaintiff would
be ordered to answer such interrogatories. United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR Serv
2d 1100.
Party did not meet its burden under rule 33(a) of making specific showing of reasons why interrogatories should not
be answered or documents not produced where it merely made conclusory objections which assumed that information
sought was irrelevant. Laufman v Oakley Bldg. & Loan Co. (1976, SD Ohio) 72 FRD 116, 23 FR Serv 2d 849.
Objection will be sustained to particular interrogatory or set of interrogatories if court determines that they are so
broad and inclusive as to be burdensome; court must balance burden on interrogated party against benefit that having
information would provide to party submitting interrogatory. Flour Mills of America, Inc. v Pace (1977, ED Okla) 75
FRD 676.
In antitrust litigation plaintiffs' catch-all objection, naming every conceivable ground, including allegation that
interrogatories are duplicative, not relevant to subject matter of litigation, oppressive, and overly vague, is so broad as to
be meaningless; and although filing by plaintiffs of catch-all objection is clearly improper, supplement, filed after time
to respond had run, which contains specific objections to interrogatories may be considered; but where reasonable
question exists as to whether interrogatory should be answered, plaintiffs who file untimely objections will be ruled
against. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
Mere recitation of familiar litany that interrogatory is overly broad, burdensome, oppressive and irrelevant does not
suffice as specific objection. Momah v Albert Einstein Medical Ctr. (1996, ED Pa) 164 FRD 412.
Objection which states that interrogatory is overbroad, vague and unduly burdensome is not sufficiently specific to
allow court to ascertain claimed objectionable character of interrogatory; objection must be specific and supported by
detailed explanation of why interrogatories are objectionable. Burns v Imagine Films Entertainment (1996, WD NY) 164
FRD 589, 34 FR Serv 3d 960, subsequent app, remanded (1997, CA2 NY) 1997 US App LEXIS 4031.
Objections should be plain and specific enough so that court can understand in what way interrogatories are alleged
to be objectionable. Coregis Ins. Co. v Baratta & Fenerty, Ltd. (1999, ED Pa) 187 FRD 528.
93. Waiver
Although one may waive its objections to interrogatory by refusing to answer interrogatory and not following
procedures for objections in Rule 33, court would hesitate to enforce waiver if it felt that it would cast undue burden on
defendant or otherwise would be contrary to interest of justice. Baxter v Vick (1960, ED Pa) 25 FRD 229, 3 FR Serv
2d 563.
Refusal to answer interrogatory on advice of counsel constituted waiver of subsequent objection to interrogatory
since defendant failed to follow procedure set forth in Rule 33. Baxter v Vick (1960, ED Pa) 25 FRD 229, 3 FR Serv
2d 563.
Generally, in absence of extension of time or for good cause, failure to object to interrogatories within time fixed by
Rule 33 constitutes waiver of any objection, and even objection that information sought is privileged is waived by
failure to make it within proper time limits. United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR
Serv 2d 1100.
Products liability plaintiffs waived objections to interrogatories where they declined to answer them because they
were "objectionable" but did not specifically state their objections to them. Turick v Yamaha Motor Corp. (1988, SD
NY) 121 FRD 32.
Interrogatory objections not included in timely response are waived even if objections are contained in later untimely
response, absent showing of good cause; however, objections not interposed in initial response, but interposed in
supplemental response served within period allowed by FRCP 33(b) for response or as extended by stipulation, are not
waived. Safeco Ins. Co. of Am. v Rawstorm (1998, CD Cal) 183 FRD 668.
Based upon fact that neither party has complied with discovery deadlines in instant case, court found that it was
inequitable to deem employer's answers and objections to employees' first set of interrogatories as waived; court
therefore excused employer's failure to timely serve its objections for good cause shown under Fed. R. Civ. P. 33(b).
Hammond v Lowe's Home Ctrs., Inc. (2003, DC Kan) 216 FRD 666.
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USCS Fed Rules Civ Proc R 33
94. --By answering
In an action for personal injuries alleged to have resulted in insanity, plaintiff's motion to quash a subpena duces
tecum for the production of hospital records of prior treatments for insanity, on the ground that such records were
privileged under a state statute, was denied, such privilege having been waived by answers, without objection, to
interrogatories concerning such prior treatments. Munzer v Swedish American Line (1940, DC NY) 35 F Supp 493.
In an action for specific performance of license agreement, or declaratory judgment as to whether license had been
canceled, and for infringement of certain patents if license had been canceled, where plaintiffs chose to answer
interrogatory, even if it was evasive answer, plaintiffs waived any right they had to object to interrogatory on ground
that it called for interpretation of contract and for legal conclusions. National Transformer Corp. v France Mfg. Co.
(1949, DC Ohio) 9 FRD 606, 83 USPQ 527.
Where defendant voluntarily answered interrogatory, it thus waived objection it later interposed. Herbst v Chicago,
R. I. & P. R. Co. (1950, DC Iowa) 10 FRD 14.
In action brought against airline to recover for death of plaintiff's husband where defendant answered interrogatory to
effect that it did not have sufficient information to answer interrogatory at time it was propounded, that interrogatory
would be among subjects of extensive investigations, depositions, and other discovery proceedings to be conducted in
action, that defendant would supply further answer to such interrogatory after completion of such proceedings, and
subsequently, defendant objected to answering interrogatories on ground that they called for legal conclusions and legal
theories, defendant clearly waived any objection which it might otherwise have and could not be heard to question
propriety of interrogatories after it had expressly undertaken to supply further answer when it completed discovery.
Riley v United Air Lines, Inc. (1962, SD NY) 32 FRD 230, 7 FR Serv 2d 622.
Whenever answer accompanies objection, objection is deemed waived and answer, if responsive, stands. Meese v
Eaton Mfg. Co. (1964, ND Ohio) 35 FRD 162, 142 USPQ 16, 8 FR Serv 2d 19A.1, Case 8, 8 FR Serv 2d 33.319, Case 1.
Where party answers interrogatories without imposing any objection he will be limited to claim that his answer is
sufficient. Skelton & Co. v Goldsmith (1969, DC NY) 49 FRD 128.
95. --By untimely objection
Plaintiff waived his right to insist upon time requirement for answering interrogatories or objecting to interrogatories
under Rule 33 although defendants neither objected nor answered interrogatories within times fixed by Rule 33 where
plaintiff acquiesced in court's action holding motion in abeyance and appointing master pursuant to Rule 53. Wilver v
Fisher (1967, CA10 Okla) 387 F2d 66, 11 FR Serv 2d 1183.
Final judgment means date of issuance of mandate of affirmance by appellate court, not date of entry of judgment of
conviction, for purposes of calculating time for new trial motion. Romero v United States (1994, CA2 NY) 28 F3d 267.
Failure to serve objections to interrogatories within time prescribed by Rule 33 should be considered as waiver of
such objections. Bohlin v Brass Rail, Inc. (1957, DC NY) 20 FRD 224.
Where timely objection is not made to interrogatories the right to object is waived. Mengle v Tucker (1957, DC Pa)
21 FRD 187; International Fertilizer & Chemical Corp. v Brasileiro (1957, DC NY) 21 FRD 193.
Where first response to interrogatories was by way of objections served and filed 4 months and 14 days after date of
receipt of interrogatories, plaintiff, by such delay, waived its right to object to interrogatories. Maurer-Neuer, Inc. v
United Packinghouse Workers (1960, DC Kan) 26 FRD 139, 47 BNA LRRM 2053, 3 FR Serv 2d 668.
Plaintiff's "notice of motion" to strike defendant's interrogatories filed more than two months after such
interrogatories were propounded to plaintiff was untimely and therefore would be denied in absence of excuse for
failure to make timely objection. Cowie v Continental Oil Co. (1961, SD NY) 28 FRD 384, 4 FR Serv 2d 581.
Where timely objection is not made to interrogatories, right to object is waived. McKeon v Highway Truck Drivers
& Helpers, etc. (1961, DC Del) 28 FRD 592, 49 BNA LRRM 2009, 43 CCH LC P 17249, 5 FR Serv 2d 560.
Where time to object to interrogatories expired, no objections could be filed without special leave of court, which
would not be granted since no reason appeared why additional time was needed to object to form or substance of
interrogatories. Sturdevant v Sears, Roebuck & Co. (1963, WD Mo) 32 FRD 426, 7 FR Serv 2d 547.
Where defendant's counsel failed to comply with plain mandate of Rule 33 relating to time limit for filing objections,
court had no alternative but to grant plaintiff's motions to compel answers notwithstanding that much of information
sought was totally irrelevant to issues in suit and notwithstanding that interrogatories in many respects were harassing
and vexatious. Cephas v Busch (1969, ED Pa) 47 FRD 371, 13 FR Serv 2d 930.
Since the 1970 amendment eliminating the ten day provision, interrogatories may be submitted any time after the
filing of the complaint, failure to answer interrogatories or make objection to question set forth within the thirty-five day
period is waiver by defendants of any objections they might have had. Davis v Romney (1971, DC Pa) 53 FRD 247, 15
FR Serv 2d 738.
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USCS Fed Rules Civ Proc R 33
Question whether failure to make any objections within proper time results in waiver of objection is matter within
sound discretion of court; where interrogatories were so totally improper that no useful purpose would be served by
either forcing defendant to respond or otherwise penalizing defendant, objections to such interrogatories were not
waived by failure to make objections within proper time. Williams v Krieger (1973, SD NY) 61 FRD 142, 17 FR Serv
2d 1219.
Generally, in absence of extension of time or for good cause, failure to object to interrogatories within time fixed by
Rule 33, constitutes waiver of any objection, and even objection that information sought is privileged is waived by
failure to make it within proper time limits; accordingly, where plaintiff, in its answers to interrogatories, claimed that
materials requested were privileged and did not file answers and objections to such interrogatories until approximately 4
months after they were initially filed, objections were not timely filed and plaintiff would be ordered to answer such
interrogatories. United States v 58.16 Acres of Land (1975, ED Ill) 66 FRD 570, 20 FR Serv 2d 1100.
Discovery objections are waived if party fails to object timely to interrogatories, production requests, or other
discovery efforts. Godsey v United States (1990, SD Miss) 133 FRD 111.
Interrogatory objections not included in timely response are waived even if objections are contained in later untimely
response, absent showing of good cause; however, objections not interposed in initial response, but interposed in
supplemental response served within period allowed by FRCP 33(b) for response or as extended by stipulation, are not
waived. Safeco Ins. Co. of Am. v Rawstorm (1998, CD Cal) 183 FRD 668.
When party fails to serve objections to interrogatories within time required, in absence of good cause or of extension
of time to do so, party has generally waived right to raise objections later. Coregis Ins. Co. v Baratta & Fenerty, Ltd.
(1999, ED Pa) 187 FRD 528.
Objection that information sought is privileged is waived if not timely stated, and it is within court's discretion to
determine whether privilege has been properly invoked. Coregis Ins. Co. v Baratta & Fenerty, Ltd. (1999, ED Pa) 187
FRD 528.
Because corporation failed to assert timely objection to company's interrogatories on confidentiality grounds, any
refusals to provide requested discovery based on alleged confidentiality of requested information for reasons of
commercial competitive disadvantage were waived by corporation. Cliffstar Corp. v Sunsweet Growers, Inc. (2003, WD
NY) 218 FRD 65.
Defendant waived any objection it had to interrogatory requesting statement of defendant's financial net worth by
failing to answer, object, or file motion for protective order within 30 days allowed by discovery rules; protective order
filed after 30 day period, in response to plaintiff's motion to compel answer to interrogatory, was untimely.
Lackawanna Refuse Removal, Inc. v Proctor & Gamble Paper Products Co. (1978, MD Pa) 26 FR Serv 2d 375.
V. GROUNDS FOR OBJECTING TO INTERROGATORIES
A. Scope
96. Generally
Rule 33 should be liberally construed; evidentiary, as well as ultimate facts, may be demanded by interrogatories.
Nichols v Sanborn Co. (1938, DC Mass) 24 F Supp 908; J. Schoeneman, Inc. v Brauer (1940, DC Mo) 1 FRD 292, 45
USPQ 641; Fleming v Bernardi (1941, DC Ohio) 4 FRD 270.
Interrogatories to parties under Rule 33 may relate to any matters which can be inquired into under Rule 26(b).
Fleming v Southern Kraft Corp. (1940, DC NY) 37 F Supp 232, 3 CCH LC P 60130; Byers Theaters, Inc. v Murphy
(1940, DC Va) 1 FRD 286; J. Schoeneman, Inc. v Brauer (1940, DC Mo) 1 FRD 292, 45 USPQ 641; Brewster v
Technicolor, Inc. (1941, DC NY) 2 FRD 186, 51 USPQ 319; Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469;
Pueblo Trading Co. v Reclamation Dist. (1945, DC Cal) 4 FRD 471; Stanzler v Loew's Theatre & Realty Corp. (1955,
DC RI) 19 FRD 286; Dimenco v Pennsylvania R. Co. (1956, DC Del) 19 FRD 499 (criticized in Jewell v Pennsylvania
R. Co. (1962) 55 Del 6, 183 A2d 193) and (criticized in Rothermel v CONRAIL (1998, Del Super Ct) 1998 Del Super
LEXIS 19).
Particulars of evidence may be obtained through resort to the processes of examination of the adverse party,
interrogatories, discovery and production of documents, requests for admissions, and depositions and discovery.
Mitchell v Brown (1942, DC Neb) 2 FRD 325.
The scope of permissible examination under Rule 33 is coextensive with that sanctioned by Rule 26(b). Bowles v
Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469; Pueblo Trading Co. v Reclamation Dist. (1945, DC Cal) 4 FRD 471.
Information necessary to enable parties to present their defenses is obtainable by interrogatories under Rule 33.
Pueblo Trading Co. v Reclamation Dist. (1945, DC Cal) 4 FRD 471.
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USCS Fed Rules Civ Proc R 33
Rule 33 authorizing written interrogatories is circumscribed by Rule 26(b) which permits inquiry with respect to any
matter, not privileged, which is relevant to subject matter involved in pending action. Rediker v Warfield (1951, DC
NY) 11 FRD 125.
Interrogatories under Rule 33 are not limited to material or ultimate facts but may extend to discovery of merely
evidentiary or factual details. V. D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F Supp 932, 100
USPQ 413.
Scope of interrogatory procedures embraces all matters which tend to support or to negate controverted allegations of
pleadings, or which are reasonably calculated to reveal such matters. Dubois Brewing Co. v United States (1963, WD
Pa) 34 FRD 126, 8 FR Serv 2d 33.353, Case 2, affd (1964, CA4 Md) 334 F2d 464, 8 FR Serv 2d 60B.27, Case 2, cert
den (1964) 379 US 869, 13 L Ed 2d 71, 85 S Ct 141.
At very least, party should not be foreclosed from examining on any subject which might conceivably have bearing
upon subject matter of action. Triangle Mfg. Co. v Paramount Bag Mfg. Co. (1964, ED NY) 35 FRD 540, 143 USPQ
145, 8 FR Serv 2d 33.353, Case 3.
Scope of interrogatories under Rule 33 is expressly governed by Rule 26(b). Griffin v Memphis Sales & Mfg. Co.
(1965, ND Miss) 38 FRD 54, 9 FR Serv 2d 33.321, Case 3.
Scope of inquiry into other party's case through interrogatories under Rule 33 is as broad as discovery under Rule 26,
relative to depositions. Felix A. Thillet, Inc. v Kelly-Springfield Tire Co. (1966, DC Puerto Rico) 41 FRD 55, 10 FR
Serv 2d 884.
Interrogatories under Rule 33 may relate to any matter which can be inquired into under Rule 26(b). Federal
Cartridge Corp. v Olin Mathieson Chemical Corp. (1967, DC Minn) 41 FRD 531, 152 USPQ 497, 10 FR Serv 2d 865.
Objecting to interrogatory as calling for narrative response is insufficient ground since nothing in Federal Rules of
Civil Procedure prescribes any specific form for interrogatory so long as it gives other party reasonably clear indication
of information to be included; there is no need to insist rigidly a prior that interrogatories cannot be commands or seek
narrative or other expansive detail, since, particularly when opponent seeks party's position on matter, interrogatories
may be better suited than series of depositions. Babcock Swine, Inc. v Shelbco, Inc. (1989, SD Ohio) 126 FRD 43.
97. Basis of allegation
Under Rule 33 whatever detailed or particular information the defendants may desire in respect to the nature and
extent of plaintiffs' claims and the basis upon which they rest may be readily secured by serving written interrogatories;
service may be made by simply mailing a copy of the interrogatories to plaintiffs' attorney. Slusher v Jones (1943, DC
Ky) 3 FRD 168.
In action to recover damages on account of personal injuries, objections to interrogatory propounded by plaintiff
asking if defendant contended that plaintiff was guilty of contributory negligence, and on what conduct, acts or
omissions such charge was based, would be overruled; it is clear that in action charging defendant with negligence it is
proper under Rule 33 for defendant to file interrogatory calculated to elicit from plaintiff facts or conduct on which said
plaintiff bases his charge of negligence; it is equally clear that when defendant sets up in its answer negligence of
plaintiff generally, plaintiff is entitled to ask upon what acts or omissions defendant relies in making its charge of
negligence. Needles v F. W. Woolworth Co. (1952, DC Pa) 13 FRD 460.
It is no objection to an interrogatory that it relates to a defense or claim which is insufficient in law; and it is not
ordinarily the function of the court in passing upon objections to interrogatories to decide ultimate questions. V. D.
Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F Supp 932, 100 USPQ 413.
Interrogatory was not objectionable because it asked defendant to state what acts it relied on for its defense of
contributory negligence; such questions used to be asked in bill of particulars in negligence action and interrogatories
are one of devices intended to take place of bill of particulars. Chatman v American Export Lines, Inc. (1956, DC NY)
20 FRD 176.
It is proper under Rule 33 for defendant to elicit by interrogatory facts or conduct upon which plaintiff bases his
charge of general negligence. McElroy v United Air Lines, Inc. (1957, DC Mo) 21 FRD 100.
In antitrust action defendants' interrogatories which set forth a contention and asked whether it was one which
government expected to make was an improper attempt to impede government's flexibility in framing for itself the
eventual contentions and legal theories which it would present for trial, and government did not have to respond.
United States v Carter Products, Inc. (1961, SD NY) 28 FRD 373, 4 FR Serv 2d 553.
Interrogatories are an appropriate means for obtaining a specification of the facts upon which a claim of negligence is
founded. Hartsfield v Gulf Oil Corp. (1962, ED Pa) 29 FRD 163, 5 FR Serv 2d 536.
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USCS Fed Rules Civ Proc R 33
Defendants, in civil rights action brought by the attorney general of the United States, were entitled to be appraised
of the names of complainants and the nature of the complaint. United States v School Dist. (1966, DC SC) 40 FRD
391, 10 FR Serv 2d 894.
Defendant's interrogatories which inquired into the basis of the allegations of the complaint that defendant engaged
in a conspiracy or combination or agreement in violation of plaintiff's rights were proper, and plaintiff's objections that
such interrogatories sought to elicit plaintiff's "contentions" were without merit; plaintiff having alleged that defendant
made false and fraudulent representations which damaged plaintiff, interrogatories properly might call upon the pleader
of fraud to set forth at least the degree of particularization required by Rule 9(b) of these rules. B-H Transp. Co. v
Great Atlantic & Pacific Tea Co. (1968, ND NY) 44 FRD 436, 1968 CCH Trade Cases P 72637, 12 FR Serv 2d 761.
Interrogatories seeking the grounds, i.e., the fundamental state of facts of which an action is based, are not
objectionable on the theory that they call for a statement of legal theories and a disclosure of plaintiff's opinion, the
research and work product of his lawyers. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR
Serv 2d 1563.
Interrogatory which inquires into (1) facts upon which vague and general allegations of complaint are founded and
(2) claimed relationship between such facts is not objectionable on ground it calls for legal conclusion. Sargent-Welch
Scientific Co. v Ventron Corp. (1973, ND Ill) 59 FRD 500, 1973-2 CCH Trade Cases P 74791, 17 FR Serv 2d 504.
98. Jurisdictional questions
A respondent who is challenging the jurisdiction of federal district court may not be required to answer
interrogatories pertaining to the challenged jurisdiction. Lenz v Sudden & Christenson, Inc. (1945, DC Pa) 4 FRD 401.
Defendants have the right to try to prove by interrogatories that the case is not properly within the jurisdiction of the
federal district court, and that plaintiff has improperly or collusively been made such for the purpose of creating a
cognizable case. Pueblo Trading Co. v Reclamation Dist. (1945, DC Cal) 4 FRD 471.
Interrogatories may be propounded on facts going to court's jurisdiction. Truck Drivers & Helpers v Grosshans &
Petersen, Inc. (1962, DC Kan) 209 F Supp 161, 6 FR Serv 2d 612.
Canadian defendant manufacturer of asbestos-containing products sued by workers alleging injury from such
products in course of their employment was not excused from complying with discovery requests and orders because of
law of its domicile allegedly forbidding production of business records, where defendant had been found subject to
personal jurisdiction in South Carolina, interrogatories could be answered without removal of documents, and even
assuming that documents fell within Quebec law, that law required petition by attorney general for order preventing
removal of documents, which did not exist, and, finally, a provincial government's legislative enactments are not
entitled to comity under principles of international law. Lyons v Bell Asbestos Mines, Ltd. (1988, DC SC) 119 FRD
384.
99. Identification of witnesses to be called at trial
It is objectionable to demand by interrogatory list of witnesses whom adverse party expects to call at trial to prove
some specific facts; provision under Rule 26(b) which governs scope both of depositions and interrogatories permitting
inquiry into identity and location of persons having knowledge of relevant facts, for purpose of discovery, should not be
confused with attempt to secure list of witnesses whom adverse party intends to call at trial. Aktiebolaget Vargos v
Clark (1949, DC Dist Col) 8 FRD 635.
Government's objection to interrogatories seeking identity of informers who may have furnished government certain
information in respect to charges asserted against defendant is sustained because public interest demands confidence of
those who have supplied such information; names and locations of informers who are to be used by government as
witnesses may, however, be discovered. United States v First Nat'l Bank & Trust Co. (1961, ED Ky) 4 FR Serv 2d 543.
Interrogatories, not calling for names and addresses of persons having knowledge of facts, but for names and
addresses of witnesses to be used at trial, were improper; such inquiries should be made at pretrial conference, not by
way of interrogatory. Truck Drivers & Helpers v Grosshans & Petersen, Inc. (1962, DC Kan) 209 F Supp 161, 6 FR
Serv 2d 612.
Interrogatory reaches far beyond scope of examination under Rule 33 where it calls for identification of names and
addresses of persons who party intends to introduce as witnesses and statement of facts which will be attempted to be
proved by each witness. Wirtz v Howard (1963, ED Ky) 7 FR Serv 2d 629.
Since it is parties and not their attorneys who are being interrogated when proceedings are conducted under Rule 33,
information pertaining to development of trial of case is not proper subject for interrogatories; thus, in negligence action
interrogatory propounded by plaintiff seeking identification of all witnesses who will be called to testify, substance of
their testimony, and identity and description of each document which will be offered in support of defendant's case, was
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USCS Fed Rules Civ Proc R 33
improper. Wedding v Tallant Transfer Co. (1963, ND Ohio) 37 FRD 8, 9 FR Serv 2d 36A.13, Case 2, 9 FR Serv 2d
36A.21, Case 5.
With respect to interrogatory requesting names of all persons having relevant information whom plaintiffs intend to
call at the trial, phrase "whom plaintiffs intend to call at the trial" was objectionable. Uinta Oil Refining Co. v
Continental Oil Co. (1964, DC Utah) 226 F Supp 495, 8 FR Serv 2d 33.31, Case 1.
Discovery of reports prepared by adverse party's expert should not ordinarily be permitted in absence of showing that
factual information, which is necessary for moving party's trial preparation, cannot be obtained by moving party's
independent investigation or research; in copyright infringement action, disclosure of adverse party's reports would be
denied where factual material upon which comparative analysis would be based is readily available and there are no
grounds to justify unreasonable interference with defendants' trial preparation. Acuff-Rose Publications, Inc. v Silver
Star Publishing Co. (1967, MD Tenn) 11 FR Serv 2d 860.
100. Statements of witnesses
Where in action against distributing corporation, liability of such corporation was dependent on intercorporate
relationship between distributing corporation and manufacturing corporation, interrogatories as to such intercorporate
relationship were proper. Cohen v Proctor & Gamble Distributing Co. (1957, DC Del) 20 FRD 596.
Defendant who could not, until plaintiff instituted action against it, without itself instituting suit, take the depositions
of plaintiff's employee witnesses, whom plaintiff's counsel did not permit to refresh their memories by referring to their
statements given to plaintiff, was entitled to production and inspection of such statements, which had been given a few
days after the vessel collision on which the action was based, to the extent those statements disclosed facts closely
related to the information which defendant previously sought to discover by interrogatories and depositions. Maryland
Shipbuilding & Drydock Co. v Baker-Whitely Towing Co. (1967, DC Md) 42 FRD 12, 11 FR Serv 2d 924.
101. Information relating to interrogating party's own case
Under these rules discovery may be had to ascertain facts relating not only to party's own case but his adversary's
also, and scope of examination allowed under Rule 33 is coextensive with scope of examination permitted under Rule
26. Nichols v Sanborn Co. (1938, DC Mass) 24 F Supp 908.
General objection to interrogatories on ground that under Rule 33 party is entitled to interrogate only to obtain
information tending to support his own case would be overruled; Rule 33 was not adopted simply to give party same
advantage that he might have had through bill of discovery. United States v General Motors Corp. (1942, DC Ill) 2
FRD 528.
In action instituted by United States pursuant to Federal Food, Drug and Cosmetic Act to investigate possible
criminal responsibilities and manufacturers and distributors of particular products for alleged violation of Act, scope of
government's interrogatories was not limited to defendant's theory of case since law is well settled that party may
examine on its theory of facts and law as well as that of its opponent. United States v An Article of Drug, etc. (1967,
DC Del) 43 FRD 181, 11 FR Serv 2d 840.
102. Information on adversary's case
Interrogatories may pertain to a defense which is insufficient in law, the defense being valid until stricken. Riordan
v Ferguson (1942, DC NY) 2 FRD 349.
Although all interrogatories asking for minor evidentiary facts should not be suppressed, there is definite limit
beyond which such detailed demands may not go without becoming a vice in and of itself and likewise resulting in other
objectionable situation; this is especially true where proposing party seeks to secure such minor evidentiary details of
preparation of his opponent's case, to pry into his opponent's preparation of his own case, or to attempt to shift labor and
expense of preparation of his own case to his adversary. Porter v Montaldo's (1946, DC Ohio) 71 F Supp 372.
Interrogatory calling upon adverse party to enumerate items of evidence by which latter expects to prove some
ultimate fact is objectionable. Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635.
Rule 33 does not go so far as to require party to present to his adversary authorities upon which he predicates his
case; thus, plaintiffs and cross-defendants were not required to give citations of alleged English law, and if case law,
names and citations of cases. Fishermen & Merchants Bank v Burin (1951, DC Cal) 11 FRD 142.
Interrogatories may be excluded on objection where they seek to obtain proof or evidence of a party. Colorado
Milling & Elevator Co. v American Cyanamid Co. (1951, DC Mo) 11 FRD 580.
Though it is no ground for objection that an interrogatory seeks information relative to evidentiary facts instead of
ultimate facts, it is improper to ask a party to state evidence on which he intends to rely to prove any particular fact;
however, defendants had a right to propound an interrogatory for the purpose of ascertaining what the plaintiff knew or
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USCS Fed Rules Civ Proc R 33
believed concerning the operations of defendants. V. D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F
Supp 932, 100 USPQ 413.
That plaintiff is asking defendant to submit its evidence in advance of trial is not valid objection to interrogatories.
United States v Purdome (1962, WD Mo) 30 FRD 338, 5 FR Serv 2d 520.
Interrogatories by a plaintiff seeking to find out the scope of the defense are proper. Pressley v Boehlke (1963, WD
NC) 33 FRD 316, 7 FR Serv 2d 656.
Inquiries calling not for presently available facts but for plaintiffs' intentions with respect to the trial are clearly
objectionable. Uinta Oil Refining Co. v Continental Oil Co. (1964, DC Utah) 226 F Supp 495, 8 FR Serv 2d 33.31,
Case 1.
The fact that a plaintiff may disclose his evidence during the pretrial development of the action by giving answers to
interrogatories does not justify refusal to answer the interrogatories when the answers given furnish the purposes of the
rule, i.e., shorten the trial, and expedite the orderly administration of justice. Rogers v Tri-State Materials Corp. (1970,
ND W Va) 51 FRD 234, 14 FR Serv 2d 1563.
103. Information within knowledge of interrogating party
Any interrogatory which would be proper if asked a witness on the stand is proper though it asks for evidence which
is already within the other party's knowledge. American S.S. Co. v Buckeye S.S. Co. (1941, DC NY) 1 FRD 773;
Riordan v Ferguson (1942, DC NY) 2 FRD 349.
It is no objection to interrogatories propounded under Rule 33, that information sought is within knowledge of
interrogating party; however, under certain circumstances objection on ground that interrogator has knowledge of
information sought is sufficient to sustain objections to interrogatories. Hoffman v Wilson Line, Inc. (1946, DC Pa) 7
FRD 73.
In action to recover overtime wages under Fair Labor Standards Act, objection to interrogatories on ground that
information sought was entirely within defendant's knowledge was not sustained where interrogatory requested precise
work or duty performed by each individual plaintiff, total number of hours worked for defendant by said individual
plaintiffs, regular hourly rates, amount of compensation paid to plaintiffs, and geographical location on which
individual plaintiffs performed work. Brown v Dunbar & Sullivan Dredging Co. (1948, DC NY) 8 FRD 107.
Where trustee in bankruptcy filed action to reclaim property from bank alleging that transfer was fraudulent,
interrogatories by defendant requesting itemization of goods owned by bankrupt at time of transaction were properly
objected to by trustee on ground that defendant had access to books of bankrupt in possession of trustee. Klein v
Leader Electric Corp. (1948, DC Ill) 81 F Supp 624.
Objection to interrogatories on ground that information sought is within knowledge of interrogating party is improper
and without merit. Woods v Kornfeld (1949, DC Pa) 9 FRD 196.
A party has no right to require his opponent to make compilations of information where documents containing the
material necessary for the compilations are available to the first party. Leonia Amusement Corp. v Loew's, Inc. (1955,
DC NY) 18 FRD 503.
In patent infringement suit, interrogatories pertaining to defendant's installations which plaintiff had already
investigated did not require answer. Otto v Koppers Co. (1955, DC W Va) 134 F Supp 886, 106 USPQ 406.
Fact that information sought is within the knowledge of the inquiring party is not ground for sustaining objections to
interrogatories. Grand Opera Co. v Twentieth Century-Fox Film Corp. (1957, DC Ill) 21 FRD 39; Novak v Good Will
Grange, etc. (1961, DC Conn) 28 FRD 394, 4 FR Serv 2d 523.
In using interrogatories for the purpose of narrowing issues and enabling the interrogating party to determine what he
will have to meet at trial it is permissible to inquire into matters already within the interrogating party's own knowledge
or as to the adverse party's contentions or as to his mental operation in respect to relevant issues; thus by interrogatories,
one may obtain admissions from an adverse party and also make inquiry as to the adverse party's damages or the
method by which they were computed. Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv
2d 517.
It is well established that party propounding interrogatories may indeed submit interrogatories covering matters
within its knowledge. United States v An Article of Drug, etc. (1967, DC Del) 43 FRD 181, 11 FR Serv 2d 840.
Claimant in libel action by the United States to condemn allegedly misbranded drug was not required to answer
interrogatories which requested claimant to identify label reproduced as a copy of the label on the very drug cartons
seized, since claimant could not know whether the exhibit was a reproduction of one of the labels on the cartons seized
or a reproduction from a carton of the product not seized, and the information sought was within the knowledge of the
United States. United States v An Article of Drug, etc. (1967, DC Del) 43 FRD 181, 11 FR Serv 2d 840.
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USCS Fed Rules Civ Proc R 33
In action brought under Fair Labor Standards Act, defendant is required to answer interrogatories seeking
information concerning method of payment to each employee, amounts paid each employee and hours worked by each
employee, even though plaintiff's investigation officer may possess some of required information in raw and presently
inadmissible form, because time, expense and effort that defendant will be required to undergo will not unduly burden
defendant. Schultz v Wiederkehr (1969, SD Tex) 13 FR Serv 2d 837.
The fact that the information sought is equally available to the interrogator, or is a matter of public record, does not
render the interrogatories objectionable. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR
Serv 2d 1563.
A party may propound interrogatories calling for the disclosure of the opposing party's specific position as to the
facts underlying his claim, notwithstanding that such facts, divorced from their application to the legal principles
governing the case, may already be known or accessible to the propounding party. United States v Beatrice Foods Co.
(1971, DC Minn) 52 FRD 14, 1971 CCH Trade Cases P 73556, 15 FR Serv 2d 58.
Generally, interrogatory is proper although information sought is equally available to both parties, and in view of
great majority of cases holding that party may be allowed to inquire about facts already known to him, plaintiff would
be required to answer interrogatory which it had previously refused to answer on ground that information and materials
requested were as readily accessible to defendants as to plaintiff. United States v 58.16 Acres of Land (1975, ED Ill) 66
FRD 570, 20 FR Serv 2d 1100.
104. Matters of public record
Interrogatories may seek information which is of public record and which may be obtained by the defendant.
Riordan v Ferguson (1942, DC NY) 2 FRD 349.
In action to recover on a construction contract with a city, the fact that the contract, agreements, and regulations
referred to in interrogatories were public records would not cause the court to overrule the interrogatories. Canuso v
Niagara Falls (1945, DC NY) 4 FRD 362.
Interrogatories are not objectionable merely because they seek information which is matter of public record.
Anderson v United Air Lines, Inc. (1969, SD NY) 49 FRD 144, 14 FR Serv 2d 515.
The fact that the information sought is equally available to the interrogator, or is a matter of public record, does not
render the interrogatories objectionable. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR
Serv 2d 1563.
105. Previously supplied information
Objection to interrogatories on ground that they were not proposed in good faith because one defendant had fully
answered interrogatories concerning same manner so that plaintiff had knowledge of information sought and to require
same information from 2 other defendants was superfluous and could serve no purpose other than forming basis for
impeachment would be overruled; fact that party had already obtained benefits of discovery procedure as to one
defendant did not foreclose him from proceeding under its provisions with respect to other defendants. Rediker v
Warfield (1951, DC NY) 11 FRD 125.
Where interrogated party has already furnished information to interrogating party it would be unreasonable to require
interrogated party to undertake to do it again. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22 FRD 494, 1 FR
Serv 2d 517.
Plaintiff's objections to interrogatories on ground that each of questions contained therein was asked of plaintiff by
defendant's counsel during plaintiff's deposition taken by defendant would be overruled; various methods of discovery
set out in Rules 26-36 of Federal Rules of Civil Procedure were intended to be cumulative, rather than alternative or
exclusive; burden is on party objecting to discovery to show hardship or injustice; such hardship is not easily shown,
and usually courts have permitted interrogatories though oral deposition has been taken. Taylor v Atchison, T. & S. F.
R. Co. (1962, WD Mo) 33 FRD 283, 7 FR Serv 2d 651, 7 FR Serv 2d 673.
Objections to interrogatories based upon persistent but unsupported allegations that information sought had
previously been supplied by deposition or by responses to request to admit cannot be sustained; objecting party must
indicate exactly where depositions or responsive answers to interrogatories may be found. Anderson v United Air
Lines, Inc. (1969, SD NY) 49 FRD 144, 14 FR Serv 2d 515.
Claim of duplication is insufficient, unless all documentary material from which interrogatory answers may be
conveniently obtained has been previously provided; if all information has been previously produced sufficient to derive
answer to interrogatory, plaintiffs may demonstrate good cause for protective order as to these interrogatories pursuant
to Rule 26, but if protective order is granted, plaintiffs will still have to identify documents from which answers to
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USCS Fed Rules Civ Proc R 33
interrogatories can be obtained. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d
116.
Plaintiff's objection to answering interrogatories on grounds that information was available in business documents
already produced was unreasonable where 33,000 documents had been previously produced; defendant was entitled to
sufficient detail to permit it to readily identify records from which information could be ascertained. Derson Group,
Ltd. v Right Management Consultants, Inc. (1988, ND Ill) 119 FRD 396.
106. Previously stipulated information
There was no persuasive authority for sustaining objection to interrogatories because of alleged agreement to
stipulate as to accuracy of matter similar to that sought in interrogatory. Anderson v United Air Lines, Inc. (1969, SD
NY) 49 FRD 144, 14 FR Serv 2d 515.
107. "Fishing expedition"
District Court properly denied motion for discovery in derivative suit brought on behalf of defendant fund where
plaintiff alleged that defendants other than fund had engaged in course of conduct involving fraudulent, deceptive, and
manipulative practices, since interrogatories of plaintiff, predicated on allegation of single fraudulent transaction,
constituted fishing expedition of large proportions. Segan v Dreyfus Corp. (1975, CA2 NY) 513 F2d 695, 19 FR Serv
2d 1466.
A general objection that interrogatories constitute a "fishing expedition" is of no avail. Byers Theaters, Inc. v
Murphy (1940, DC Va) 1 FRD 286.
It is fundamental that interrogatories may be excluded on objection where such interrogatories are merely or solely in
character of fishing expedition and where it is sought to obtain proof or evidence of party. Colorado Milling &
Elevator Co. v American Cyanamid Co. (1951, DC Mo) 11 FRD 580.
Objection that interrogatory constituted fishing expedition was not well taken. Butler v United States (1964, WD
Mo) 226 F Supp 341, 8 FR Serv 2d 34.411, Case 1.
Plaintiff who has only alleged discrimination at company facility at which she was employed is not entitled to seek
discovery relating to employment practices and policies at all of company's facilities in effort to support class
certification since to burden company with having to provide such information would be to condone fishing expedition.
Hinton v Entex, Inc. (1981, ED Tex) 93 FRD 336, 33 BNA FEP Cas 1300, 27 CCH EPD P 32237, 32 FR Serv 2d 1328.
108. Matters pre-dating applicable statute of limitations
In patent infringement action in which plaintiffs alleged that defendant infringed patent on method of making
pulleys, interrogatory propounded by plaintiff could properly seek information concerning defendant's activities during
period barred by statute of limitations, since such activities may have effect on period not barred by statute of
limitations. Zatko v Rogers Mfg. Co. (1964, ND Ohio) 37 FRD 29, 144 USPQ 466, 9 FR Serv 2d 33.319, Case 1.
Discovery by plaintiffs of information prior to the statutory damage period outside the specifically designated areas
of activity in the complaint and without geographical limitation would be permitted. Prudential New York Theatres
Co. v Radio City Music Hall Corp. (1967, SD NY) 271 F Supp 762, 1967 CCH Trade Cases P 72129, 11 FR Serv 2d
822.
109. Post-complaint information
Interrogatories to defendant in a patent suit must be limited to a date prior to the commencement of the action.
Nakken Patents Corp. v Rabinowitz (1940, DC NY) 1 FRD 90, 44 USPQ 164.
In action where subject matter was transaction involving certain shipment of lumber, objection to interrogatory
would be sustained where scope of such interrogatory was broad and sweeping, going far beyond date of disputed
transaction and embracing transactions with strangers to the action. Bullard v Universal Millwork Corp. (1960, ED
NY) 25 FRD 342, 3 FR Serv 2d 536, 3 FR Serv 2d 598.
Objections to interrogatories seeking discovery on question of propriety of action alleging race discrimination in
employment as class action would be sustained where certain of interrogatories were not relevant to determination of
propriety of class action and not in compliance with court order, other interrogatories exceeded scope of discovery
suggested in court order, and documents and data provided in response to other interrogatories were sufficient to enable
plaintiffs to prepare and file motion for class action determination. Glass v Philadelphia Electric Co. (1974, ED Pa) 64
FRD 559, 8 BNA FEP Cas 1242.
110. Opinions, contentions, and conclusions
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USCS Fed Rules Civ Proc R 33
Interrogatory is not subject of valid objection merely because it calls for matters of opinion or contention; real test
should be whether or not answer thereto would serve any substantial purpose, either in leading to evidence or in
clarifying issues in case. American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR
Serv 2d 493.
Although a great many cases hold that opinions and conclusions may not be inquired of by interrogatories, there is
valid and recognized distinction between requiring defendant to state opinion and requiring him to point out directly
matter to which defense is directed; latter is basic purpose of Rule 33. Liquidometer Corp. v Capital Airlines, Inc.
(1959, DC Del) 24 FRD 319, 123 USPQ 482, 2 FR Serv 2d 483.
Rather than impose inflexible rule, which would require laborious search for intricate and elusive dividing marker
separating fact, opinion, contention and conclusion, it seems preferable to allow interrogatories which might possibly
call for opinion, conclusion or contention, if, on balance of convenience, answers to them would serve any substantial
purpose, either in leading to evidence or in narrowing issues. United States v Renault, Inc. (1960, SD NY) 27 FRD 23,
3 FR Serv 2d 571.
Interrogatory calling for factual inference or conclusion is proper, whereas interrogatory calling for legal conclusion
is objectionable. Trabon Engineering Corp. v Eaton Mfg. Co. (1964, ND Ohio) 37 FRD 51, 144 USPQ 469, 9 FR Serv
2d 33.319, Case 2.
An interrogatory is not objectionable merely because it involves an opinion, contention or legal conclusion since
inquiries which in some measure call for legal conclusions can be useful in narrowing and sharpening issues, which is
major purpose of discovery. Diversified Products Corp. v Sports Center Co. (1967, DC Md) 42 FRD 3, 10 FR Serv 2d
917.
Because of difficulties of separating fact, opinion, contention, and conclusion, it is preferable to allow interrogatories
involving opinion where their answers would serve any substantial purpose in suit. Kerr-McGee Corp. v Texas
Oklahoma Express, Inc. (1967, WD Okla) 43 FRD 336, 11 FR Serv 2d 857.
Although traditional view has been that interrogatories which call for opinions, conclusions or contentions are
improper, there is noticeable trend toward permitting such interrogatories if court is convinced that, by requiring
responses thereto, lawsuits could be expedited, information obtained could lead to relevant evidence, issues could be
narrowed, unnecessary testimony and wasteful preparation could be avoided, or any other substantial purpose
sanctioned by discovery provisions of federal rules could be served. Empire Scientific Corp. v Pickering & Co. (1968,
ED NY) 44 FRD 5, 157 USPQ 134, 12 FR Serv 2d 785.
Factual conclusions should be permitted under Rule 33 in the absence of compelling reasons to the contrary.
Roberson v Great American Ins. Cos. (1969, ND Ga) 48 FRD 404, 1 BNA FEP Cas 805, 71 BNA LRRM 2706, 2 CCH
EPD P 10048, 60 CCH LC P 9290, 13 FR Serv 2d 507, 13 FR Serv 2d 879.
Interrogatory is not objectionable merely because it inquires into opinion, conclusion, and contentions of opposing
party; applicable test in determining whether interrogatory is to be answered is practical one of whether answer would
serve any substantial purpose. Scovill Mfg. Co. v Sunbeam Corp. (1973, DC Del) 357 F Supp 943, 178 USPQ 203, 17
FR Serv 2d 342.
Interrogatory which seeks application of law to central facts of case is permissible under Rule 33(b), but
interrogatory which seeks pure legal conclusions which are not related to facts, but to law of case, is not permissible.
O'Brien v International Brotherhood of Electrical Workers (1977, ND Ga) 443 F Supp 1182, 25 FR Serv 2d 1036.
Although interrogatory which requires formulation of opinion is not per se impermissible, it must be phrased with
particularity and will be considered on its own merits by practical considerations of whether need for information
outweighs prejudice and burden to interrogated party in divulging it; if such interrogatory eliminates unnecessary
testimony, avoids wasteful preparation, narrows issues, leads to relevant evidence or generally expedites fair disposition
of lawsuit and serves any other substantial purpose sanctioned by discovery, court should require response. McClain v
Mack Trucks, Inc. (1979, ED Pa) 85 FRD 53, 25 BNA FEP Cas 1040, 29 FR Serv 2d 154.
Party would not be compelled to respond to interrogatories positing factual scenarios since they effectively asked
party to express legal opinions on hypotheticals. Kendrick v Sullivan (1989, DC Dist Col) 125 FRD 1.
Under FRCP 33(c), there is no automatic rule that interrogatory must be disallowed merely because it calls for
opinion or contentions. Cable & Computer Tech. v Lockheed Saunders, Inc. (1997, CD Cal) 175 FRD 646.
FRCP 33(c) expressly recognizes and permits use of contention interrogatories. Steil v Humana Kansas City, Inc.
(2000, DC Kan) 197 FRD 445, summary judgment gr, request den (2000, DC Kan) 2000 US Dist LEXIS 19079.
111. --Particular circumstances
In suit for money damages by which owner of patent averred contract breached because of licensee's sales of articles
covered presumably by one or more of patents or applications plaintiff's propounded interrogatories were beyond usual
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USCS Fed Rules Civ Proc R 33
scope of interrogatories under Rule 33 where plaintiff, by interrogatories, sought to require licensee to segregate
business covered from agreement by licensee's other gross sales, description of each article sold by licensee during
period in question with its identifying article number and quantity of such articles, description of each device sold
during period that was covered by or associated with any of patents and gross sale of each of such devices as were
covered by patents; propounded interrogatories required licensee to assume duty and responsibility of determining
questions of fact and law with respect to whether articles it made and sold were within terms of agreement. Scheiwer v
Snap-Tite, Inc. (1954, DC Pa) 17 FRD 115, 105 USPQ 263.
Objection to interrogatory on ground that it called for expression of opinion and conclusion would be overruled
where interrogatory asked defendant with what acts of contributory negligence he planned to charge the plaintiff's
decedent. Hamilton v Baltimore & O. R. Co. (1958, SD Ind) 23 FRD 101, 1 FR Serv 2d 555.
In action to obtain judgment for certain tax liabilities allegedly owing by defendant to United States, interrogatories
propounded by United States asking in what respect certain assessments were "illegal" and requesting lists of events and
facts which caused defendant to become agent and upon which he relied to show his status as agent rather than
employer were objectionable on grounds that such interrogatories called for legal, rather than factual, conclusions.
United States v Selby (1960, ND Ohio) 25 FRD 12, 3 FR Serv 2d 541.
Where plaintiff objected that interrogatory required it to state irrelevant matter and called for plaintiff to set forth a
legal conclusion, plaintiff would be directed to answer interrogatory to the extent that it could do so by reciting facts,
and plaintiff was not required to express any conclusions of law. Lumbermen's Mut. Casualty Co. v Pistorino & Co.
(1961, DC Mass) 28 FRD 1, 5 FR Serv 2d 529.
In negligence action, objection to interrogatory on ground that such interrogatory called for opinions and conclusions
of counsel would be overruled since interrogatories are appropriate means for obtaining specification of facts upon
which claim of negligence is founded; opinions and conclusions are inherent in any specification of factual basis of
claim of negligence. Hartsfield v Gulf Oil Corp. (1962, ED Pa) 29 FRD 163, 5 FR Serv 2d 536.
In action for patent infringement, plaintiff's objections to interrogatories propounded by defendant inquiring whether
plaintiff made certain contentions with regard to language and disclosures of subject patent would be overruled since,
while it may be said that interpretation was involved, it was only collaterally so, and primary function of interrogatories
was elucidation. Lee v Electric Products Co. (1963, ND Ohio) 37 FRD 42, 9 FR Serv 2d 33.319, Case 3.
It is not longer true that Rule 33 requires that parties disclose only matters of fact, but better view permits
interrogatories addressed to matters of opinion when answer would serve substantial purpose in expediting law suit;
thus, interrogatories propounded by defendants on plaintiffs in patent infringement action which called for opinions of
plaintiffs concerning their patent were not objectionable, since full explanation of patent in suit might clarify issues in
case. Meese v Eaton Mfg. Co. (1964, ND Ohio) 35 FRD 162, 142 USPQ 16, 8 FR Serv 2d 19A.1, Case 8, 8 FR Serv 2d
33.319, Case 1.
Since, in patent cases, no one is more qualified than inventors to express opinion as to what constitutes theft of their
inventiveness, interrogatories directed to contentions of plaintiffs could stand. Meese v Eaton Mfg. Co. (1964, ND
Ohio) 35 FRD 162, 142 USPQ 16, 8 FR Serv 2d 19A.1, Case 8, 8 FR Serv 2d 33.319, Case 1.
Interrogatory calling for factual inference or conclusion is proper, whereas interrogatory calling for legal conclusion
is objectionable; in action brought by plaintiff employees against employer railroad to recover for personal injuries,
plaintiffs' interrogatory, reading as follows: "At the time of the accident, was the plaintiff engaged in duties which were
in furtherance of interstate commerce or which directly and substantially affected interstate commerce?" improperly
called for a legal conclusion and objection thereto would be sustained. Zinsky v New York C. R. Co. (1964, ND Ohio)
36 FRD 680, 9 FR Serv 2d 33.342, Case 3.
Where interrogatories ask for identification of coins contended to be infringed, and not comparison of each coin with
plaintiff's devices, patentee could not refuse to answer on ground that interrogatory asked for legal opinion. Federal
Cartridge Corp. v Olin Mathieson Chemical Corp. (1967, DC Minn) 41 FRD 531, 152 USPQ 497, 10 FR Serv 2d 865.
Interrogatories are not objectionable merely because they seek to elicit opinions or conclusions; in action seeking
damages for wrongful death of decedents occasioned by airplane crash, interrogatories were not objectionable on
grounds that they called for opinions, conclusions, and ultimate facts where interrogatories requested factual
information regarding airplane crash. Anderson v United Air Lines, Inc. (1969, SD NY) 49 FRD 144, 14 FR Serv 2d
515.
In a negligence action, opinions and conclusions are inherent in any specification of the factual basis of a claim of
negligence, therefore it is not necessarily improper to require conclusions or opinions in answering such an
interrogatory. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234, 14 FR Serv 2d 1563.
Interrogatory is not objectionable merely because it calls for opinion or contention which relates to fact or
application of law to fact; therefore, in action for alleged violations of federal antitrust laws, where defendants moved
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USCS Fed Rules Civ Proc R 33
for order compelling answer to interrogatories, plaintiff would be required to respond to interrogatories by disclosing
requested "factual opinions", but plaintiff would not have to respond to questions whose answers extended to issues of
"pure law" unrelated to facts of case. Sargent-Welch Scientific Co. v Ventron Corp. (1973, ND Ill) 59 FRD 500,
1973-2 CCH Trade Cases P 74791, 17 FR Serv 2d 504.
Contention interrogatories were premature, hence motion to compel answers to them would be denied. Fischer &
Porter Co. v Tolson (1992, ED Pa) 143 FRD 93, CCH Fed Secur L Rep P 96976.
In patent infringement action plaintiff would be ordered to answer defendant's interrogatory requesting plaintiff to
compare its patent in suit with defendant's machine by labeling on diagram of alleged infringing device corresponding
component parts of plaintiff's device with specific nomenclature used in plaintiff's patent despite objection by plaintiff
that interrogatory would require patentee to express legal opinion as to scope of its patent claim. Cleo Wrap Corp. v
Elsner Engineering Works, Inc. (1972, MD Pa) 59 FRD 386, 176 USPQ 266, 17 FR Serv 2d 1392.
112. Information about documents
In antitrust action against drug manufacturers charging defendants with participation in an alleged combination and
conspiracy to restrain and monopolize commerce in certain drugs, where government objected to defendants'
interrogatories which asked government to set forth the specific terms of agreements referred to in complaint which
government would claim to be violative of Antitrust Laws [15 USCS § § 1 et seq.] and to describe fully each such term
together with particular legal provision alleged to be violated, responses would be required as to any term in the
writings which government classified as representing on its face, and without reference to other proof, a violation of the
Antitrust Laws [15 USCS § § 1 et seq.], and in all other respects government's objections would be sustained. United
States v Carter Products, Inc. (1961, SD NY) 28 FRD 373, 4 FR Serv 2d 553.
In action brought in District Court for recovery of income taxes illegally paid and erroneously collected from
plaintiff with respect to certain taxable years where government filed interrogatory to plaintiff requiring plaintiff to set
forth description of each and every document upon which plaintiff intended to rely as evidence in support of allegations
contained in certain number of paragraphs of complaint, extreme hardship and extension of scope of investigatory
procedure beyond its purpose was not shown to have existed by plaintiff. Dubois Brewing Co. v United States (1963,
WD Pa) 34 FRD 126, 8 FR Serv 2d 33.353, Case 2, affd (1964, CA4 Md) 334 F2d 464, 8 FR Serv 2d 60B.27, Case 2,
cert den (1964) 379 US 869, 13 L Ed 2d 71, 85 S Ct 141.
In condemnation proceedings under Federal Food, Drug, and Cosmetic Act [21 USCS § § 301 et seq.],
government's interrogatories would not be limited to the articles seized, but advertisements, catalogs, circulars, displays,
and other promotional material relating to the product which included the seized articles were also properly subject to
the scope of the interrogatories. United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9 FR Serv 2d 33.321, Case 2.
Because corporation alleged that it was "forced," as result of company's business conduct, to incur costs in form of
supra-competitive prices for prunes from alternate sources needed to satisfy its customer contracts obligations, company
was entitled to learn factual basis for those contentions; discovery request was granted because corporation's motion to
compel responses to interrogatory and document request sought information regarding corporation's contracts, all of
which was reasonably calculated to provide factual basis for corporation's contention that as result of company's abuse
of its market power it incurred significant damages. Cliffstar Corp. v Sunsweet Growers, Inc. (2003, WD NY) 218 FRD
65.
113. Admissions against interest
In a personal injury action, interrogatories may be addressed to defendant asking whether he had any conversation at
the scene of or after the accident and the contents of such conversation, since such conversation may be an admission
against interest. Tudor v Leslie (1940, DC Mass) 1 FRD 448.
114. Privileged information
The question of privilege may be raised by objections to interrogatories. Munzer v Swedish American Line (1940,
DC NY) 35 F Supp 493.
Rule 33 governing interrogatories is subject to same privilege limitations as Rules 26 and 34, since Rule 26 covers
interrogatories, as well as oral testimony, and privilege rule stated in Rule 26 carries over to Rule 33. Transmirra
Products Corp. v Monsanto Chemical Co. (1960, SD NY) 26 FRD 572, 128 USPQ 84, 4 FR Serv 2d 562.
Privilege for communications by informers to government has long been established; in action by Secretary of Labor
to enforce Fair Labor Standards Act, defendant's interrogatory requesting disclosure of names and addresses of
informers who had provided information need not be answered where defendant has not shown good cause. Goldberg
v Clise & Smith, Inc. (1962, ND Ga) 6 FR Serv 2d 628.
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Defendant's interrogatories seeking the details of allegations of negligence and unseaworthiness were not
objectionable as requiring a statement of conclusions or opinions or in that they sought lawyer's "work product."
Hartsfield v Gulf Oil Corp. (1962, ED Pa) 29 FRD 163, 5 FR Serv 2d 536.
In injunction action under Fair Labor Standards Act, Secretary of Labor is not required to answer interrogatories
seeking identity of employees of defendant who have complained about employer; names and identities of persons who
may have given information with regard to time and payroll practices by employer are privileged and confidential and
should not be revealed under "Informers Privilege"; moreover, information contained in government files, including
witness' statements and reports of investigators, is information which is privileged and confidential. Wirtz v White
(1965, ND Okla) 40 FRD 507, 10 FR Serv 2d 893.
While patent applications are not privileged per se, their disclosure is compelled only where there is some connection
between applications and subject matter of pending litigation; defendant need not answer interrogatories inquiring about
its foreign patent applications since requisite connection does not exist between them and defendant's patent in suit.
Struthers Scientific & International Corp. v General Foods Corp. (1968, SD Tex) 45 FRD 375, 159 USPQ 565, 12 FR
Serv 2d 767.
In action to enjoin defendants from violating provisions of Fair Labor Standards Act, plaintiff properly objected to
interrogatories which would have required it to disclose names and statements of persons who had informed
government of violations; qualified privilege in regard to names and statements of witnesses exists in cases brought by
Secretary of Labor under Fair Labor Standards Act, and in absence of special circumstances, such as showing that
defendant is unable to prepare for trial, names of informants and statements are treated as privileged. Shultz v Interior
Decors, Inc. (1969, SD Tex) 13 FR Serv 2d 876.
Plaintiffs' need for information in class action alleging that federal officials conspired to interfere with their First
Amendment rights must be balanced against government's need to prevent interference with criminal investigation that
may result from civil discovery, and where government does have urgent need to preserve secrecy of ongoing criminal
investigation, plaintiffs' motion to compel answers to interrogatories will be denied. Founding Church of Scientology,
Inc. v Kelley (1977, DC Dist Col) 77 FRD 378, 24 FR Serv 2d 1268.
Discovery of settlement memoranda prepared by attorneys for city housing authority in anticipation of state
proceedings to review administrative decisions terminating tenancies on grounds of nondesirability, sought through
interrogatory in subsequent federal class action on grounds that memoranda might contain admissions of noncompliance
by authority with mandatory termination procedures and reveal ongoing cover-up of illegal practices, was barred by
attorney-client privilege, since memoranda were based in part on information received by attorneys in confidential
interviews with housing authority employees for purpose of formulating litigation strategy; representative's bare
allegation that proof of illegality was contained in memoranda were insufficient to invoke crime or fraud exception to
attorney-client privilege. Bruce v Christian (1986, SD NY) 113 FRD 554.
Disputed interrogatories were not objectionable solely because they inquired into defendant's position on particular
issue since questions asked only required simple yes or no answer and factual basis behind answer so that defendant
could reveal facts behind its position without revealing its mental impressions and trial strategies. Schaap v Executive
Industries, Inc. (1990, ND Ill) 130 FRD 384.
Defendants, who, in their answers to interrogatories, claimed that information requested and materials sought were
privileged, but did not state or demonstrate underlying facts or circumstances of privilege or protection, failed to fulfill
their responsibility, and such privilege was denied. Burns v Imagine Films Entertainment (1996, WD NY) 164 FRD 589,
34 FR Serv 3d 960, subsequent app, remanded (1997, CA2 NY) 1997 US App LEXIS 4031.
Objection that information sought is privileged is waived if not timely stated, and it is within court's discretion to
determine whether privilege has been properly invoked. Coregis Ins. Co. v Baratta & Fenerty, Ltd. (1999, ED Pa) 187
FRD 528.
115. Damages
In a patent suit, interrogatories bearing on damages should not be allowed, since the issue is premature prior to
appointment of master to ascertain damages. O'Rourke v RKO Radio Pictures, Inc. (1939, DC Mass) 27 F Supp 996,
41 USPQ 725; Boysell Co. v Colonial Coverlet Co. (1939, DC Tenn) 29 F Supp 122, 42 USPQ 601; Deltox Rug Co. v
Colonial Coverlet Co. (1939, DC Tenn) 29 F Supp 122, 42 USPQ 602.
Interrogatories are not improper on the ground that they seek information relating only to the question of damages
before the issue of liability has been determined, if they also seek information relevant to other issues in the case. RCA
Mfg. Co. v Decca Records, Inc. (1940, DC NY) 1 FRD 433, 47 USPQ 99.
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A motion for bill of particulars specifying items of damage would be denied in an action for breach by vendee of a
contract for the sale of goods and defendant would be relegated to interrogatories for the ascertainment of such
information. Ft. Wayne Corrugated Paper Co. v Anchor Hocking Glass Corp. (1941, DC Pa) 1 FRD 647.
No adjudication of infringement having been made in a patent suit, objections to interrogatories involving damages
would be sustained. Carter Bros., Inc. v Cannon (1941, DC Tenn) 2 FRD 174, 51 USPQ 411.
In an action for patent infringement brought subsequent to the expiration of a patent, interrogatories relating to
damages would be allowed although calling for costs and income of which a part was not attributable to plaintiff's
invention. Brewster v Technicolor, Inc. (1941, DC NY) 2 FRD 186, 51 USPQ 319.
Objection to interrogatory as going to quantum of damages and not proper before liability was established in action
involving royalties under license agreements was overruled. Rubsam v Harley C. Loney Co. (1950, DC Mich) 10 FRD
344, 85 USPQ 305.
In patent case involving design for sealing gasket for use in connecting toilet bowls with soil pipes, interrogatory
propounded by plaintiff requesting defendant to state number of alleged infringed devices defendant had sold from
particular period up until date of filing of complaint was not objectionable on grounds that interrogatory related to
damages where defendant did not allege that information requested would reveal matters of confidential business nature
to competitor, or that mere furnishing of information as to number of alleged infringed devices sold over a certain
period of time would be burdensome or oppressive. Harvey v Levine (1960, ND Ohio) 25 FRD 15, 125 USPQ 324, 3
FR Serv 2d 532.
It would not seem to be objectionable to propound interrogatories as to adverse party's damages or method by which
they were computed. Stonybrook Tenants Asso. v Alpert (1961, DC Conn) 29 FRD 165, 5 FR Serv 2d 517.
While discovery as to damages is as much available to a party as discovery on the merits of the claim, it is customary
where a suit is triable in separate parts, one affecting liability and the other the amount of recovery, to postpone
discovery as to damages until liability is determined; however, in accounting action to be tried by jury which was not
upon its face of such a nature as to impel two completely separate and distinct proceedings, one to determine plaintiff's
right to recover and the other on the issue of damages, court would require defendant to answer interrogatories relative
to issue of damages prior to determination of plaintiff's right to an accounting. Klauder v Minneapolis-Honeywell
Regulator Co. (1962, ED Pa) 30 FRD 29, 133 USPQ 619, 5 FR Serv 2d 525.
In declaratory judgment action brought by plaintiff praying that certain of defendant's patents be declared invalid and
not infringed by plaintiff, interrogatories directed to quantum of liability or damages were subject to objection. Fischer
& Porter Co. v Sheffield Corp. (1962, DC Del) 31 FRD 534, 135 USPQ 389, 6 FR Serv 2d 603.
In action for patent infringement, defendant's objection to interrogatories directed at issue of damages was sustained,
as, generally, in patent actions discovery on damages is deferred until liability is established. Lee v Electric Products
Co. (1963, ND Ohio) 37 FRD 42, 9 FR Serv 2d 33.319, Case 3.
In patent infringement action, defendant's objection to plaintiff's interrogatory on ground that information requested
dealt only with damages could not be sustained where defendant did not allege that information requested would reveal
matters of confidential business nature or that furnishing information would be burdensome or oppressive. Zatko v
Rogers Mfg. Co. (1964, ND Ohio) 37 FRD 29, 144 USPQ 466, 9 FR Serv 2d 33.319, Case 1.
In action alleging patent infringement, defendant's objection to interrogatory on ground that it went only to profits
and damages would be overruled where defendant did not allege that information requested would reveal matters of
confidential nature or that furnishing information would be burdensome or oppressive. Trabon Engineering Corp. v
Eaton Mfg. Co. (1964, ND Ohio) 37 FRD 51, 144 USPQ 469, 9 FR Serv 2d 33.319, Case 2.
Defendants had right to investigate, discover, and attempt to meet at the trial the possibility of injury to plaintiffs in
severalty, or the separate elements of damage that eventually could be represented in a combined verdict. Uinta Oil
Refining Co. v Continental Oil Co. (1964, DC Utah) 226 F Supp 495, 8 FR Serv 2d 33.31, Case 1.
In antitrust action defendants would be required to answer interrogatories requesting information regarding cost of
production and sales along with net profit derived because this information is relevant to question of damages and it
may lead to evidence of price concessions made in return for exclusivity. Royal Crown Cola Co. v Coca-Cola Co.
(1967, ND Ga) 11 FR Serv 2d 823.
In patent infringement suit, interrogatories requesting defendant to state total dollar volume of sales of equipment
and number of years total dollar volume of equipment sold in competition with same type of equipment sold by plaintiff
were not objectionable on ground that they were directed solely to issue of damages; discovery as to damages is
commonly postponed until liability has been resolved but plaintiff was entitled to know in what respect and to what
extent defendant was claiming that plaintiff had competed unfairly with defendant. Carrier Mfg. Co. v Rex Chainbelt,
Inc. (1968, ED Wis) 281 F Supp 717, 157 USPQ 613, 12 FR Serv 2d 794.
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Defendant in trademark litigation would be ordered to answer interrogatories seeking consideration given and
received by two corporations when they acquired defendant corporation, where court could not conclude that
information would not have some possible bearing upon issue of defendant's damages, strength of defendant's
trademarks at particular time, or question of continuing validity of trademarks. La Chemise Lacoste v Alligator Co.
(1973, DC Del) 60 FRD 164, 178 USPQ 393.
116. Criminal records
Interrogatory which sought to elicit from defendant information as to whether he had ever been convicted of a
criminal offense and the details thereof was proper since an interrogatory to a party designed to elicit facts which may
be used in cross-examination to affect credibility of that party is a proper subject of discovery. Meadows v Palmer
(1963, DC Md) 33 FRD 136, 7 FR Serv 2d 649.
117. Medical records
Plaintiff's interrogatories in personal injury action, directed to third-party defendant, seeking to elicit information
regarding medical examination and treatment administered to the plaintiff, but not in terms limited to examination and
treatment by the defendant, was objectionable, but plaintiff would be permitted to rephrase the interrogatories
accordingly. Mort v A/S D/S Svendborg (1966, ED Pa) 41 FRD 225, 10 FR Serv 2d 859.
118. Business records
In action where plaintiff sought to recover certain sums of money alleged to be due and owing to it for gasoline, oil
and other products supplied by it to defendant and defendant contended that oil was so contaminated as to not be
merchantable and unfit for purpose intended and counterclaimed to recover damages which it alleged it had sustained by
reason of its resale of said oil, interrogatory which sought names and addresses of customers for dealers who had been
lost by defendant because of use of allegedly contaminated oil, gasoline purchased annually by each customer or dealer,
date of first delivery to each such customer or dealer, date of last delivery thereto, reason why sales to each customer or
dealer was terminated, and names and addresses of customers who had withheld payments from defendant after
discovering damage to their heating equipment due to use of allegedly contaminated oil was not objectionable on
grounds that interrogatories called for evidentiary detail. American Oil Co. v Pennsylvania Petroleum Products Co.
(1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493.
In patent infringement suit, since it would be advantageous for plaintiff to know what differences, if any, existed
between plaintiff's and defendant's patent applications, interrogatories requesting such information were not
objectionable on ground that interrogatory called for opinions, contentions, conclusions, comparisons and
interpretations of claims of patent in suit; party may be required to give legal conclusion or opinion if answer would
serve any substantial purpose. Carrier Mfg. Co. v Rex Chainbelt, Inc. (1968, ED Wis) 281 F Supp 717, 157 USPQ 613,
12 FR Serv 2d 794.
Defendants' interrogatories in antitrust litigation, seeking information as to nonprice factors in purchase decision,
plaintiffs' practices in multibid situations, and conduct following receipt of goods, are relevant and plaintiffs are,
therefore, directed to answer these interrogatories because such interrogatories may have impact on price of items in
question. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
119. Patent information
In a patent suit, on plaintiff's objections to defendant's interrogatories for the dates on which the inventions were
made, such dates should be supplied in exchange for a contemporaneous statement by defendant of dates relied on for
showing anticipation or prior use. Babcock & Wilcox Co. v North Carolina Pulp Co. (1938, DC Del) 25 F Supp 596.
Plaintiff should be accorded an inspection of the apparatus alleged to infringe and adequate drawings before being
required to answer interrogatories asking whether drawings submitted show defendant's apparatus and its operation.
Babcock & Wilcox Co. v North Carolina Pulp Co. (1938, DC Del) 25 F Supp 596.
Plaintiff should be required to answer defendant's interrogatories seeking information as to installations by plaintiff
said to embody inventions of patents in suit. Babcock & Wilcox Co. v North Carolina Pulp Co. (1938, DC Del) 25 F
Supp 596.
It is proper in a patent case to address an interrogatory to plaintiff asking whether a drawing annexed to the
interrogatory correctly represents the alleged infringing device, provided defendant stipulates that it represents the
device he is actually producing. Schwartz v Howard Hosiery Co. (1939, DC Pa) 27 F Supp 443, 41 USPQ 141.
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In a patent suit, in which the answer pleads that the description in the patent is defective, that the claims are vague or
excessive, and the invention is inoperative, the plaintiff is entitled to ascertain by interrogatories the basis for each of
these contentions. McInerney v Wm. P. McDonald Const. Co. (1939, DC NY) 28 F Supp 557, 42 USPQ 65.
In a patent suit, an interrogatory requiring plaintiff to state whether a certain part of the device described in the patent
functioned in one of three specified ways is proper. Lanova Corp. v National Supply Co. (1939, DC Pa) 29 F Supp
119, 42 USPQ 625.
In a patent suit, an interrogatory may be directed to the defendant inquiring when he knew of plaintiff's patent and
from whom he purchased the infringing articles. Boysell Co. v Colonial Coverlet Co. (1939, DC Tenn) 29 F Supp 122,
42 USPQ 601.
In a patent suit, the defense of invalidity of the patent as being without utility and inoperative should not be stricken
merely because defendant in answer to interrogatories stated that he was unable to point out wherein the patent was
inoperative or lacking in utility. Dunlop Tire & Rubber Corp. v Firestone Tire & Rubber Co. (1940, DC Mass) 1 FRD
335, 45 USPQ 412.
In a patent suit in which there had been a contemporaneous exchange of answers to interrogatories as to the
respective dates relied on for conception, disclosure, and reduction to practice, plaintiff would be permitted to file
amended answers to interrogatories alleging earlier dates of conception and disclosure on condition that he pay the
necessary expense incurred by defendant in reliance on the dates originally stated. McInerney v Wm. F. McDonald
Const. Co. (1940, DC NY) 35 F Supp 688, 47 USPQ 423.
In a patent suit, interrogatories are proper requiring defendant to state in what respect the patent is claimed to be
inoperative or incapable of accomplishing any new and useful purpose. Dugan v Sperry Gyroscope Co. (1940, DC NY)
35 F Supp 902, 48 USPQ 68.
In an action for patent infringement, interrogatories requesting the names of officers and directors of the two
defendants were allowed as showing the intimate relations, if any, existing between them, and the possibility of their
joint action in the alleged infringement. Brewster v Technicolor, Inc. (1941, DC NY) 2 FRD 186, 51 USPQ 319.
In a suit for patent infringement, interrogatories as to what structure defendant is using, which will simplify the proof
as to whether defendant is infringing, are relevant and material. Boldizzoni v Canvas Glove Mfg. Works, Inc. (1941,
ED NY) 51 USPQ 28.
In patent infringement case, interrogatories, by calling upon defendant to make detailed comparisons of specific
features of certain devices and apparatus manufactured by plaintiff as shown by illustrations prepared by plaintiff, with
claims and elements of defendant's patents as construed by him, were objectionable. Builders Ornamental Iron Co. v
Merrill (1950, DC Colo) 10 FRD 616, 88 USPQ 457.
In action for patent infringement, where complaint was notice pleading only, plaintiff would be required to answer
interrogatories inquiring whether particular device would constitute infringement of subject patent, and if so, what claim
or claims and in what respect; plaintiff's objections would be sustained as to portion of interrogatories inquiring in what
respect devices described would be considered infringements as those answers would require detailed technical
comparison of patent and described device, but plaintiff should answer interrogatories to extent of stating whether
described devices would be considered infringement of subject patent and what claim or claims thereof. Lee v Electric
Products Co. (1963, ND Ohio) 37 FRD 42, 9 FR Serv 2d 33.319, Case 3.
Interrogatories concerning prior patent applications need not be answered until the court has ruled on their relevancy
after the defendant's answer has been filed, because patent applications are to be secret unless materially connected with
pending litigation. Meese v Eaton Mfg. Co. (1964, ND Ohio) 35 FRD 162, 142 USPQ 16, 8 FR Serv 2d 19A.1, Case 8,
8 FR Serv 2d 33.319, Case 1.
Although plaintiff might amend declaratory judgment complaint to raise issues with respect to other patents owned
by defendant, defendant cannot be compelled to answer interrogatory as to whether it alleges that its patents not in suit
are infringed by structures not yet in controversy. Federal Cartridge Corp. v Olin Mathieson Chemical Corp. (1967,
DC Minn) 41 FRD 531, 152 USPQ 497, 10 FR Serv 2d 865.
In patent infringement action, interrogatory asking defendant to declare whether certain elements of latter's patent
No. 2,917,590, or their equivalents, were illustrated in Aust Patent, U. S. Patent No. 2,535,479, which was one of
patents plaintiff submitted as prior art, was proper, since such interrogatory was obviously designed to limit or more
precisely define matter relevant to issue of validity and defendant had not been requested to compare one of its patents
with those of many others, and it appeared that defendant's president was named inventor, and that at least one other
corporate officer was familiar with controversy. Empire Scientific Corp. v Pickering & Co. (1968, ED NY) 44 FRD 5,
157 USPQ 134, 12 FR Serv 2d 785.
Neither trade secrets nor patent applications are completely immune to interrogatories, but their relevance must be
shown before disclosure will be required; in patent suit on one preparatory process in making freeze dried coffee,
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answers to interrogatories could be limited to that process, although the questions covered the whole manufacturing
process. Struthers Scientific & International Corp. v General Foods Corp. (1968, SD Tex) 45 FRD 375, 159 USPQ
565, 12 FR Serv 2d 767.
Plaintiffs need not answer interrogatories requiring them to explain in detail what they allege is meaning of phrases
in claims of their patents in suit since phrases are not complex and disputed; hence, answers would not serve to narrow
issues; however, plaintiffs must compare certain patent claims with, and distinguish them from, other patents since such
a specification as to what constitutes inventiveness by comparing plaintiffs' product to prior art will narrow issues at
trial. Ross v McQuay, Inc. (1968, DC Minn) 159 USPQ 661.
Defendant's failure to set forth any prior art relative to plaintiff's patent in suit in defendants' answer to plaintiff's
interrogatory does not excuse plaintiff from answering interrogatories seeking information as to development of
invention, its conception, and reduction to practice, despite plaintiff's statement that it relies solely upon application date
as evidence of making of invention, since information sought as to background of patent is relevant inasmuch as patent's
validity was put in issue by answer. Brunswick Corp. v Chrysler Corp. (1968, ED Wis) 291 F Supp 118, 159 USPQ
770, 12 FR Serv 2d 781.
Although plaintiff may rely at trial on actual dates of reduction to practice and conception of patented invention, or
on constructive date, i.e., filing date, reliance on constructive dates does not excuse it from answering interrogatories
seeking actual dates. Brunswick Corp. v Chrysler Corp. (1968, ED Wis) 291 F Supp 118, 159 USPQ 770, 12 FR Serv
2d 781.
Plaintiffs in patent infringement action are not required to furnish defendants with certain information sought by
interrogatories relating to information in possession and control of plaintiffs' Japanese attorneys who are not parties to
action and are not under plaintiffs' control. Nissei America, Inc. v Cincinnati Milacron, Inc. (1982, ND Ill) 95 FRD
471, 10 Fed Rules Evid Serv 1670, 34 FR Serv 2d 530.
Plaintiffs in patent infringement action are not required to produce records of container corporation for defendant's
inspection, which rewards were originally produced for plaintiffs subject to protective order because such information is
not available to plaintiffs or within their possession, custody or control. Nissei America, Inc. v Cincinnati Milacron,
Inc. (1982, ND Ill) 95 FRD 471, 10 Fed Rules Evid Serv 1670, 34 FR Serv 2d 530.
Where patent holder failed to show burden and where confidentiality of documents could be shielded by protective
order, specifically one with provision for access limited to outside counsel and experts, alleged infringer's request for all
patents or patent applications (foreign or domestic, pending, abandoned, or issued) owned or controlled by patent holder
that referred to or related to inventions involving any fluorescence polarization assay method, system or apparatus was
granted, as limited. Caliper Techs. Corp. v Molecular Devices Corp. (2003, ND Cal) 213 FRD 555.
120. Information on trademarks and copyrights
In an action for plagiarism plaintiff is entitled to propound interrogatories as to whether the defendant's agent read
the plaintiff's work, which the defendant is charged with copying. O'Rourke v RKO Radio Pictures, Inc. (1939, DC
Mass) 27 F Supp 996, 41 USPQ 725.
In an action for trademark infringement, interrogatories are proper which require defendant to state whether it has
sold products bearing the trademark in suit, if so, to set out a specimen copy, to state the period of time during which
such products were sold, and the number sold during each month covered by the complaint. RCA Mfg. Co. v Decca
Records, Inc. (1940, DC NY) 1 FRD 433, 47 USPQ 99.
In a trademark suit, interrogatories are proper which seek the terms of an agreement under which defendant is alleged
to have agreed to change the color of his alleged infringing mark. RCA Mfg. Co. v Decca Records, Inc. (1940, DC NY)
1 FRD 433, 47 USPQ 99.
121. Miscellaneous
Third-party state defendant's claim of sovereign immunity under Eleventh Amendment from suit by plaintiff directly
against it does not shield state defendant from responsibility of responding to interrogatories propounded by plaintiff
since state is properly before court as third-party defendant and state statute providing that state cannot be required to
respond to interrogatories in state court proceedings does not apply in federal courts. Andrulonis v United States (1982,
ND NY) 96 FRD 43.
Motion to compel response to interrogatories was denied as to one interrogatory, but it was granted as to other
interrogatories, where interrogatory as to which motion was denied was unreasonably cumulative or duplicative. Vica
Coal Co. v Crosby (2003, SD W Va) 212 FRD 498.
B. Burdensome or Oppressive
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122. Generally
While Rule 33 should be accorded liberal rather than narrow interpretation, trial court is vested with reasonable
discretion in determining whether party is entitled to have interrogatories answered, and action of court in respect
thereto will not be disturbed except in case of abuse of discretion; thus, trial court did not abuse its discretion in
sustaining objections to interrogatories where such interrogatories appeared on their face to be wholly immaterial,
cumulative, onerous, and unreasonably burdensome. Newell v Phillips Petroleum Co. (1944, CA10 Okla) 144 F2d 338.
Interrogatories should not be permitted if they are too numerous, or by their nature would result in a vexatious and
harassing burden to the adverse party. Brightwater Paper Co. v Monadnock Paper Mills (1942, DC Mass) 2 FRD 547.
It is not valid objection that compilation of answers to interrogatory will necessitate large expenditures of time and
money by defendant if in other respects information sought is proper object of discovery. Adelman v Nordberg Mfg.
Co. (1947, DC Wis) 6 FRD 383, 12 CCH LC P 63775.
Court has ample power and is vested with broad discretion to control scope of interrogatories and to deny
compulsory answers where they are unnecessary, burdensome, or filed in bad faith for ulterior purposes. De Bruce v
Pennsylvania R. Co. (1947, DC Pa) 6 FRD 403.
Although interrogated party must furnish relevant information which can be obtained without great labor or expense,
it should not place upon defendant burden of many thousand man hours of labor and expense of many thousands of
dollars. Tivoli Realty, Inc. v Paramount Pictures, Inc. (1950, DC Del) 10 FRD 201.
Fact that interrogatories may be burdensome is alone not enough to excuse party from answering; while caution must
be exercised to assure that discovery techniques are not made instruments of oppression, care must also be taken lest
these purposes of rules be subverted through delay by objection or through narrowly limited interpretation. Kainz v
Anheuser-Busch, Inc. (1954, DC Ill) 15 FRD 242.
Although party cannot be forced to prepare his opponent's case nor to make investigations for his adversary,
objection that preparing answer would be undue burden is not available where information can reasonably be furnished.
Alaska v The Arctic Maid (1955, DC Alaska) 15 Alaska 667, 135 F Supp 164.
Where evidence exists which may tend to prove or disprove a disputed issue of fact a great deal of weight should not
be given to the issue of burdensomeness in making it available to the parties, but nevertheless, the questions of
likelihood of such evidence existing and its uncertain relevancy to the case as well as the real danger of duplicating
volumes of work must be weighed against the burden which its discovery will entail. Banana Distributors, Inc. v
United Fruit Co. (1956, DC NY) 19 FRD 493.
With respect to objection that interrogatories are burdensome, vexatious, and oppressive, if interrogatories are
relevant, fact that they involve work, research and expense is not sufficient to render them objectionable. United States
v Nysco Laboratories, Inc. (1960, SD NY) 26 FRD 159, 4 FR Serv 2d 550.
Objections to interrogatories are proper where they are burdensome and oppressive due to indefiniteness and where
they require opinions, contentions and conclusions; party is permitted to amend interrogatories where proper and
improper features are so commingled that they impose wholly unreasonable burden on court to sort out that which is
proper. Stephen Amusements, Inc. v Paramount Film Distributing Corp. (1961, SD NY) 4 FR Serv 2d 577.
Fact that some expense or burden is involved in answering complex interrogatories does not excuse failure to answer
since party normally must be expected to bear expense incident to litigation which it has commenced, especially where
interrogatories seek to determine contention and information concerning operation of party's business which is relevant
to litigation. Life Music, Inc. v Broadcast Music, Inc. (1966, SD NY) 41 FRD 16, 150 USPQ 789.
It is no objection to discovery that questions are searching and detailed so long as they may be expected reasonably
to lead to discovery of relevant information; but excessive perplexity or unreasonable burdens are to be avoided.
Pilling v General Motors Corp. (1968, DC Utah) 45 FRD 366.
Interrogatories, otherwise relevant, are not objectionable and oppressive simply on grounds they may cause the
answering party some work, research and expense. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234,
14 FR Serv 2d 1563.
Interrogatories seeking substance of communications are proper where they seek information relevant to subject
matter of litigation. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 256, 28 FR Serv 2d 109.
Objection to interrogatories on grounds of undue burden will be sustained only if burden outweighs benefit
information would provide to discovering party. Federal Deposit Ins. Corp. v Mercantile Nat'l Bank (1979, ND Ill) 84
FRD 345, 5 Fed Rules Evid Serv 857, 28 FR Serv 2d 972.
Fact that answering interrogatories will require objecting party to expend considerable time, effort and expense
consulting, reviewing and analyzing huge volumes of documents and information is insufficient basis for objection.
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Burns v Imagine Films Entertainment (1996, WD NY) 164 FRD 589, 34 FR Serv 3d 960, subsequent app, remanded
(1997, CA2 NY) 1997 US App LEXIS 4031.
In making decision regarding burdensomeness, court should balance burden on interrogated party against benefit to
discovering party of having information. Pulsecard, Inc. v Discover Card Servs. (1996, DC Kan) 168 FRD 295.
123. Source of information sought as criterion
If matters sought to be discovered lie wholly within personal knowledge of complainants so that if facts are to be
known they must be revealed by complainants, complainants must bear burden of disclosing them. Bowles v
McMinnville Mfg. Co. (1946, DC Tenn) 7 FRD 64; Onofrio v American Beauty Macaroni Co. (1951, DC Mo) 11 FRD
181; Kainz v Anheuser-Busch, Inc. (1954, DC Ill) 15 FRD 242; American Oil Co. v Pennsylvania Petroleum Products
Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493; United States v Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv
2d 571; Fischer & Porter Co. v Sheffield Corp. (1962, DC Del) 31 FRD 534, 135 USPQ 389, 6 FR Serv 2d 603; Young
Spring & Wire Corp. v American Guarantee & Liability Ins. Co. (1963, WD Mo) 32 FRD 345, 7 FR Serv 2d 660;
United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9 FR Serv 2d 33.321, Case 2; Kerr-McGee Corp. v Texas
Oklahoma Express, Inc. (1967, WD Okla) 43 FRD 336, 11 FR Serv 2d 857; Reynolds v Southern R. Co. (1968, ND Ga)
45 FRD 526, 12 FR Serv 2d 801; King v Georgia Power Co. (1970, ND Ga) 50 FRD 134, 2 BNA FEP Cas 447, 2 CCH
EPD P 10160, 62 CCH LC P 9389, 13 FR Serv 2d 861.
General rule is that interrogated party need only answer matters of fact within his knowledge and is not required to
make research and compilation of data not readily known to him. Cinema Amusements, Inc. v Loew's, Inc. (1947, DC
Del) 7 FRD 318.
124. Necessity of showing how interrogatory would be burdensome
Interrogatory is not objectionable simply because it calls for information which is not readily available to answering
party, but it must be shown to be unduly burdensome and oppressive. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4
FRD 469; American Oil Co. v Pennsylvania Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493;
McKeon v Highway Truck Drivers & Helpers, etc. (1961, DC Del) 28 FRD 592, 49 BNA LRRM 2009, 43 CCH LC P
17249, 5 FR Serv 2d 560; Young Spring & Wire Corp. v American Guarantee & Liability Ins. Co. (1963, WD Mo) 32
FRD 345, 7 FR Serv 2d 660; Trabon Engineering Corp. v Eaton Mfg. Co. (1964, ND Ohio) 37 FRD 51, 144 USPQ 469,
9 FR Serv 2d 33.319, Case 2; Zatko v Rogers Mfg. Co. (1964, ND Ohio) 37 FRD 29, 144 USPQ 466, 9 FR Serv 2d
33.319, Case 1.
Fact that information sought in interrogatories was made available to defendant during defendant's search of
plaintiff's document files does not by itself support plaintiff's claim of burdensomeness. Chubb Integrated Sys. v
National Bank of Washington (1984, DC Dist Col) 103 FRD 52, 224 USPQ 1002, 39 FR Serv 2d 1262.
125. Excessive costs
One party should not be allowed to require another to make investigation, research or compilation of data or statistics
for him which he might equally as well make for himself and it would seem to contravene provisions of Fifth
Amendment, prior to adjudication of liability, to require party to incur expense greater than that ordinarily incident to
prosecution or defense of suit. Byers Theaters, Inc. v Murphy (1940, DC Va) 1 FRD 286.
Party may not object to interrogatories on ground that they would require extensive research, investigation and
expense, if they relate to details alleged in his pleading and concerning which he presumably has information. Bowles
v McMinnville Mfg. Co. (1946, DC Tenn) 7 FRD 64.
It is not valid objection that compilation of answers to interrogatory will necessitate large expenditures of time and
money by defendant if in other respects information sought is proper object of discovery. Adelman v Nordberg Mfg.
Co. (1947, DC Wis) 6 FRD 383, 12 CCH LC P 63775.
In action brought under Fair Labor Standards Act where interrogatories propounded to defendant were designed to
elicit facts on whether defendant's employees were engaged in production of goods for interstate commerce or whether
defendant failed to pay overtime compensation and whether defendant kept records required, objections to
interrogatories would be sustained on ground that defendant would be required to make research in compilation of data
and information not readily known to her which would be expensive and burdensome to her. Walling v Parry (1947,
DC Pa) 6 FRD 554, 12 CCH LC P 63658.
Interrogatories are not to be used in oppressive manner; adverse party should not be required to perform burdensome
labors or to execute difficult and expensive tasks in searching for facts and classifying and compiling data.
Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635.
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USCS Fed Rules Civ Proc R 33
Although interrogated party must furnish relevant information which can be obtained without great labor or expense,
it should not place upon defendant burden of many thousand man hours of labor and expense of many thousands of
dollars. Tivoli Realty, Inc. v Paramount Pictures, Inc. (1950, DC Del) 10 FRD 201.
With respect to objection that interrogatories are burdensome, vexatious, and oppressive, if interrogatories are
relevant, fact that they involve work, research and expense is not sufficient to render them objectionable. United States
v Nysco Laboratories, Inc. (1960, SD NY) 26 FRD 159, 4 FR Serv 2d 550.
Fact that some expense or burden is involved in answering complex interrogatories does not excuse failure to answer
since party normally must be expected to bear expense incident to litigation which it has commenced, especially where
interrogatories seek to determine contention and information concerning operation of party's business which is relevant
to litigation. Life Music, Inc. v Broadcast Music, Inc. (1966, SD NY) 41 FRD 16, 150 USPQ 789.
In actions brought pursuant to Title VII of Civil Rights Act of 1964, although interrogatory asking defendant to
specify in detail how provisions of collective bargaining agreement were applied would require time consuming
preparation and probably be costly, information was crucial to issues of suit and was within exclusive custody of
defendant; accordingly, defendant's objection to interrogatory on ground that it was burdensome and oppressive would
be overruled. King v Georgia Power Co. (1970, ND Ga) 50 FRD 134, 2 BNA FEP Cas 447, 2 CCH EPD P 10160, 62
CCH LC P 9389, 13 FR Serv 2d 861.
Interrogatories, otherwise relevant, are not objectionable and oppressive simply on grounds they may cause the
answering party some work, research and expense. Rogers v Tri-State Materials Corp. (1970, ND W Va) 51 FRD 234,
14 FR Serv 2d 1563.
In action brought to collect purchase price of carpet allegedly sold to defendant, where defendant, by interrogatory,
sought to learn identity of any customer who had complaint during particular year concerning defective merchandise,
plaintiff would not be obliged to answer unless defendant first posted bond to guarantee payment of cost of assembling
required data, since answering of interrogatory would require enormous amount of time and effort and was of doubtful
relevance. Concept Industries, Inc. v Carpet Factory, Inc. (1973, DC Wis) 59 FRD 546.
126. Extensive listing of information required
Extensive listing of information required to fully answer interrogatories is somewhat cumbersome, but fact that
interrogatory calls for list does not make it improper. Burns v Thiokol Chemical Corp. (1973, CA5 Ala) 483 F2d 300, 6
BNA FEP Cas 269, 6 CCH EPD P 8737, 17 FR Serv 2d 884, 31 ALR Fed 646, reh den (1973, CA5 Ala) 485 F2d 687, 6
CCH EPD P 8737.
Interrogatory requesting defendant to list all medical experts, other than individual doctor referred to in other
interrogatories, to whom it had referred claimant for examination over 3 year period in name of such claimants, was
unduly burdensome. Da Silva v Moore-McCormack Lines, Inc. (1969, ED Pa) 47 FRD 364, 12 FR Serv 2d 804.
In actions brought pursuant to Title VII of Civil Rights Act of 1964, interrogatory asking defendant to list names of
all persons who administered, scored, and evaluated results of certain tests given by company and for instructions given
each testee, and for qualifications of those who administered tests and evaluated results was not subject to objection on
ground that it was oppressive and burdensome since same information was not given in response to other interrogatories
as contended by defendant. King v Georgia Power Co. (1970, ND Ga) 50 FRD 134, 2 BNA FEP Cas 447, 2 CCH EPD
P 10160, 62 CCH LC P 9389, 13 FR Serv 2d 861.
127. Compilation of data and research required
One party should not be allowed to require another to make investigation, research or compilation of data or statistics
for him which he might equally as well make for himself and it would seem to contravene provisions of Fifth
Amendment, prior to adjudication of liability, to require party to incur expense greater than that ordinarily incident to
prosecution or defense of suit. Byers Theaters, Inc. v Murphy (1940, DC Va) 1 FRD 286.
Party may not object to interrogatories on ground that they would require extensive research, investigation and
expense, if they relate to details alleged in his pleading and concerning which he presumably has information. Bowles
v McMinnville Mfg. Co. (1946, DC Tenn) 7 FRD 64.
Necessity of answering interrogatories, where it is necessary to make research and compile data, may be divided into
two classes such as (1) where sources of information and data are not in possession or control of interrogated party and
(2) where interrogated party does possess or control such sources; if matter inquired of be only found in records or
documents and is only available at very considerable effort or expense and books or documents be equally available to
both parties, no reason would seem to exist to cast burden of effort or expense upon interrogated party. Cinema
Amusements, Inc. v Loew's, Inc. (1947, DC Del) 7 FRD 318.
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USCS Fed Rules Civ Proc R 33
Interrogatories are not to be used in oppressive manner; adverse party should not be required to perform burdensome
labors or to execute difficult and expensive tasks in searching for facts and classifying and compiling data.
Aktiebolaget Vargos v Clark (1949, DC Dist Col) 8 FRD 635.
Party interrogated need only answer matters of fact within his knowledge, and interrogatories which merely seek to
elicit opinions or which require research and compilation of data and information not readily known to parties
interrogated are improper. Onofrio v American Beauty Macaroni Co. (1951, DC Mo) 11 FRD 181.
Where interrogatories require investigation or compilation of data, it is ordinarily no ground of objection thereto that
such investigation or compilation will be burdensome to party to whom interrogatories are propounded, but rule is
subject to qualification that court has authority to make orders which will prevent oppression, hold down expense, and
to weigh annoyance and expense involved in compiling data as against value of information sought to be obtained. V.
D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark) 117 F Supp 932, 100 USPQ 413.
With regard to interrogatories which request information and data obtainable from available documents, general rule
is that party should not be permitted to compel his opponent to make compilations or perform research and
investigations with respect to statistical information which he might make for himself by obtaining production of books
and documents pursuant to Rule 34 or by doing a little footwork, as case may be. Konczakowski v Paramount Pictures,
Inc. (1957, DC NY) 20 FRD 588.
Mere fact that interrogatory calls for research and compilation of data is not reason for disallowing it but court may
determine that compilation is so extensive that examining party should be required to prepare data itself from books and
records. Erone Corp. v Skouras Theatres Corp. (1958, SD NY) 22 FRD 494, 1 FR Serv 2d 517.
In dealing with interrogatories involving substantial amounts of research and compilation of data, courts have often
exercised their discretion and applied a kind of "rule of reason" in construction and application of Rule 33; Rule 33 was
never intended to compel adversary to search and analyze more than 5 million documents in order to furnish answers
requested by interrogating party. Riss & Co. v Association of American R. (1959, DC Dist Col) 23 FRD 211, 2 FR Serv
2d 538.
It would be unreasonable to require interrogated party to search for facts and to compile outside data and citations to
literature not within its possession or known to it, as case may be, but interrogatories may require interrogated party to
disgorge information within its knowledge or possession. United States v 216 Bottles (1965, ED NY) 36 FRD 695, 9
FR Serv 2d 33.321, Case 2.
128. Particular circumstances
Plaintiff is required to extract information from business records rather than simply make available such records
where burden of extracting information is greater for party serving interrogatory, due to handwritten nature and
bookkeeping methods familiar to plaintiff. Al Barnett & Son, Inc. v Outboard Marine Corp. (1979, CA3 Del) 611 F2d
32, 1980-1 CCH Trade Cases P 63078, 28 FR Serv 2d 802.
Where plaintiff objected that interrogatories propounded to it sought to have plaintiff make research and compile
data which defendants could equally make for themselves but plaintiff did not, neither in his objections nor in his
memorandum filed in support thereof, state nature of research he would be required to make, nor point out how he
would be compelled to compile data to answer defendants' interrogatories, objection to such interrogatories would be
overruled. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD 469.
In action brought under Fair Labor Standards Act where interrogatories propounded to defendant were designed to
elicit facts on whether defendant's employees were engaged in production of goods for interstate commerce or whether
defendant failed to pay overtime compensation and whether defendant kept records required, objections to
interrogatories would be sustained on ground that defendant would be required to make research in compilation of data
and information not readily known to her which would be expensive and burdensome to her. Walling v Parry (1947,
DC Pa) 6 FRD 554, 12 CCH LC P 63658.
Where interrogatories requested information as to how many days plaintiff was absent from work in year of his
accident, whether records indicated reason for any absences, whether defendant caused plaintiff to submit to medical
examination prior to being hired and at intervals, name of examining physicians and nature of findings on such
occasions and to attach reports of such medical examinations, defendant's objection to such interrogatories would be
sustained as requiring detailed and exhaustive search in order to procure necessary information. Jones v Pennsylvania
R. Co. (1947, DC Ill) 7 FRD 662.
Although court generally will not require party to examine its own records, and compile and correlate information
therefrom for benefit of opposing party when that party has right to inspect records, where it was apparent that unless
plaintiff would be required to state what items of inventory it claimed were overvalued, inspection of records would not
accomplish much and defendants would be forced to compile mass of cost and price data on every item of inventory in
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USCS Fed Rules Civ Proc R 33
order to prepare effective defense, objections to interrogatories on ground that same were burdensome and vexatious
would be overruled in action for alleged breach of purchase and sale agreement involving capital stock of particular
corporation. H. K. Porter Co. v Bremer (1951, DC Ohio) 12 FRD 187.
Defendant's objections to certain interrogatories on ground that answering such would require burdensome research
and compilation of data not known to defendant would be sustained where interrogatories made inquiry concerning
knowledge, state of mind, plan or purpose of defendant's stockholders which, in 1941, numbered approximately 180,300
and which at no time between 1941 and 1954 numbered less than 116,300. Tobacco & Allied Stocks, Inc. v
Transamerica Corp. (1954, DC Del) 16 FRD 537.
Objection to interrogatory would be sustained on ground that information sought would place too great a burden
upon defendant where affidavit in support of objection disclosed that studies and memoranda coming within category
called for by interrogatory would amount to some 300,000 sheets and that time spent in ferreting them out would take
weeks, let alone time and cost involved in reproducing pertinent material. Volunteer Electric Co-Operative v
Tennessee Valley Authority (1954, DC Tenn) 139 F Supp 22.
Interrogatories asking for distances between 40 named theaters in Buffalo, or which sought list of titles of all motion
pictures produced or distributed by distributor defendants and which were exhibited in 12 named theaters during period
of approximately 20 years, were oppressive. Konczakowski v Paramount Pictures, Inc. (1957, DC NY) 20 FRD 588.
Interrogatory is not objection simply because it seeks information which requires research and compilation of data; it
must be shown to be unduly burdensome and oppressive; in action where plaintiff sought to recover certain sums of
money alleged to be due and owing to it for gasoline, oil, and other products supplied by it to defendant and defendant
contended that oil was so contaminated as not to be merchantable and unfit for purpose intended, interrogatory
requesting defendant to state in detail manner or manners in which defendant was greatly damaged by reason of alleged
contaminated oil, with amounts assigned to each manner, together with recital of methods employed in computing such
amounts was not objectionable on ground that it called for information which was not readily available to it, some of
which was opinion and would require extensive research and compilation of data not immediately known to defendant;
since information sought would undoubtedly be assembled by defendant prior to trial in preparation of its defenses, it
could not be said that interrogatories were objectionable as being burdensome. American Oil Co. v Pennsylvania
Petroleum Products Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493.
Where government, at outset of interrogatories propounded to corporate defendants, requested defendants to state
separately with respect to each of propounded interrogatories name, address, and position or title of each person
furnishing answers thereto, objections were well taken because answer to question would be extremely burdensome
upon corporate defendants, since many of interrogatories called for great mass of details and statistics and had to be
obtained from innumerable people in various places. United States v National Steel Corp. (1960, SD Tex) 26 FRD 599,
4 FR Serv 2d 506.
Objections would be sustained with respect to interrogatories, in civil antitrust action, requesting extensive data not
directly related to proof which plaintiff present, but of possible aid in preparation of defense, such interrogatories calling
for extensive and detailed compilations, since most of information requested was readily available to defendants from
their own files. United States v Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv 2d 571.
Where interrogatories sought the addresses of over 600 union stewards, objection on the ground of oppressiveness as
requiring an excessive amount of research and/or compilation of data not readily available at great expense would be
overruled where objection made no specific showing of facts why such interrogatories should not be answered.
McKeon v Highway Truck Drivers & Helpers, etc. (1961, DC Del) 28 FRD 592, 49 BNA LRRM 2009, 43 CCH LC P
17249, 5 FR Serv 2d 560.
In declaratory judgment action brought by plaintiff praying that certain of defendant's patents be declared invalid and
not infringed by plaintiff where plaintiff supplied drawings of one of its air gauges and permitted inspection of its air
gauges, plaintiff could not object to interrogatory requesting it to state under oath differences between air gauge
disclosed and various other models of air gauges manufactured by it since 1956 on ground that it would require plaintiff
to compile data and enter into research for purpose of answering such interrogatory since information sought was solely
within plaintiff's knowledge and no independent research was called for. Fischer & Porter Co. v Sheffield Corp.
(1962, DC Del) 31 FRD 534, 135 USPQ 389, 6 FR Serv 2d 603.
In action wherein plaintiff alleged patent infringement and unfair competition by defendants and defendants
propounded certain interrogatories seeking information with respect to places and dates of promotional activities which
would result in compilation requiring inordinate amount of time and effort, objections to such interrogatories would be
sustained on ground that required answers would place unnecessary burden upon plaintiff, notwithstanding relevancy of
such interrogatories. Triangle Mfg. Co. v Paramount Bag Mfg. Co. (1964, ED NY) 35 FRD 540, 143 USPQ 145, 8 FR
Serv 2d 33.353, Case 3.
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USCS Fed Rules Civ Proc R 33
In action alleging patent infringement and false marking, defendant's objection to certain interrogatories on ground
that they were oppressive and excessively burdensome because at least 60 days of continuous research would be
required to obtain answers to interrogatory would be overruled where defendant did not present, by affidavit or
otherwise, information showing reasons why interrogatory would be burdensome. Trabon Engineering Corp. v Eaton
Mfg. Co. (1964, ND Ohio) 37 FRD 51, 144 USPQ 469, 9 FR Serv 2d 33.319, Case 2.
Where interrogatory asked patentee whether particular device was charged with infringement, burden upon patentee
was not of such magnitude that answer could be excused notwithstanding that detail test might be required in order to
state whether particular device infringed patents. Federal Cartridge Corp. v Olin Mathieson Chemical Corp. (1967,
DC Minn) 41 FRD 531, 152 USPQ 497, 10 FR Serv 2d 865.
Party will not be required to make available any compilation of data or research efforts equally available to
interrogating party; thus objections to interrogatories, in wrongful death action brought for death of decedent crushed
between railroad car and retaining wall, which asks for precise measurements of retaining wall, its distance from tracks,
and various other such measurements would be sustained. Reynolds v Southern R. Co. (1968, ND Ga) 45 FRD 526, 12
FR Serv 2d 801.
In employment discrimination action brought under Title VII of Civil Rights Act, defendant is required to compile
information which plaintiff has requested in interrogatories despite fact that defendant has offered to make available to
plaintiffs' counsel subject files of interrogatories because procedure is less burdensome to defendant. Foster v
Boise-Cascade, Inc. (1975, SD Tex) 20 FR Serv 2d 466.
Although it may be true as defendant contends that requested information may be derived from business records,
court may compel defendant to answer interrogatory where it believes that cost of retrieving information requested from
defendant's computer is substantially lower than cost to plaintiffs of manually assembling such information, making
compulsion subject to showing that information is not on tape and that cost to either party to answer interrogatory is
substantially the same. Penk v Oregon State Bd. of Higher Education (1982, DC Or) 99 FRD 506, 37 BNA FEP Cas
918, 35 FR Serv 2d 416.
French manufacturer of photoprocessing equipment purchased from California subsidiary by plaintiff would be
required to answer limited number of interrogatories regarding personal jurisdiction issues under Federal Rules of Civil
Procedure rather than forcing plaintiff to resort to Hague Convention on Taking Evidence Abroad since defendants
could not show that discovery was intrusive, abusive, or that a foreign sovereign interest made Convention procedures
desirable, and efficiency of party-to-party discovery of Federal Civil Rules was needed. Rich v KIS California, Inc.
(1988, MD NC) 121 FRD 254.
129. Questions overly broad
In action against taxpayer in connection with examination of income tax returns, where examination of
interrogatories filed by taxpayer demonstrated their extreme broadness and lack of utility save as harassment to United
States, trial court did not abuse its discretion in making order relieving United States from having to comply by
answering interrogatories. United States v Howard (1966, CA3 Pa) 360 F2d 373, 66-1 USTC P 9390, 10 FR Serv 2d
1573, 17 AFTR 2d 900.
In action by motion picture theater operators against distributors of motion pictures, general interrogatories as to any
joint financial interest or ownership of respective defendants "in any theater" in which large number of named
corporations "or all or any of them or their subsidiary or allied firms, persons or corporations had a financial interest"
were too broad and would require unwarranted burden of investigation by defendant. Savannah Theatre Co. v Lucas &
Jenkins (1943, DC Ga) 10 FRD 461.
In action by motion picture theater operators against distributors of motion pictures, interrogatories as whether
defendant entered into any contracts "with producers or other distributor of films" were too broad. Savannah Theatre
Co. v Lucas & Jenkins (1943, DC Ga) 10 FRD 461.
In action by motion picture theater operators against distributors of motion pictures, questions as to stock ownership
in any corporation and particularly any corporation engaged in business of operating, managing or controlling motion
picture theaters, except where restricted to majority stock ownership, or control, were too broad. Savannah Theatre
Co. v Lucas & Jenkins (1943, DC Ga) 10 FRD 461.
In action brought by Administrator of Office of Price Administrator to recover from defendant damages on account
of sale of merchandise at prices alleged to have been above established ceiling prices applicable thereto, interrogatories
propounded upon defendant were objectionable as being unreasonable, burdensome, vexatious, and onerous where
interrogatories asked defendant to perform extensive accounting and auditing operations of his own books and records
in order that he could prepare and present to plaintiff, in tabulated form or another convenient form, every minute detail
upon which plaintiff could base his recovery of damages. Porter v Montaldo's (1946, DC Ohio) 71 F Supp 372.
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USCS Fed Rules Civ Proc R 33
In suit for portal-to-portal pay under provisions of Fair Labor Standards Act where interrogatory requested for each
particular employee, from October 24, 1938, down to date of complaint, job classification, scheduled starting and
quitting times, total number of hours from which compensation was paid, regular hourly rate, number of hours
compensated at overtime rates, number of hours shown on timecard between punching in and punching out, objection
that scope of information was too broad would be overruled except insofar as inquiry sought to go back beyond January
16, 1941, which was beginning of 6-year period to date of commencement of action; interrogatories may cover at least
as broad field of inquiry as when interested party is called as witness to testify orally at trial but in no event could
recovery be had in instant action for period prior to 6 years before commencement of action. Adelman v Nordberg
Mfg. Co. (1947, DC Wis) 6 FRD 383, 12 CCH LC P 63775.
Where interrogatories involved requested names "and/or" identities and addresses or locations of occupants of bus
involved in accident, of other persons who were witnesses to accident, of those persons who saw location of bus and
plaintiff's automobile, skid marks, glass or debris on highway at scene of accident, objections based on ground, inter
alia, that information sought was too broad and need therefor not justified were not well taken; interrogatories should be
allowed unless, under circumstances of particular case, court is satisfied that administration of justice will in some way
be impeded. Johnson v Queen City Coach Co. (1950, DC Tenn) 9 FRD 686.
In wrongful death action against international airline, interrogatory requiring airline to give names, addresses, and
places of assignment of, and positions held by, all of officers of airline during June and July 1949, was too broad;
plaintiffs conceded that they desired information only as to those officers who had some responsibility in connection
with flight on which crash occurred and therefore interrogatory would be limited to apply only to those officials who
arranged trip, planned its itinerary, instructed crew, and made arrangements for operating and maintaining airplane.
Barrows v Koninklijke Luchtvaart Maatschappij (1951, DC NY) 11 FRD 400.
Objection to interrogatory propounded by plaintiff to defendant requiring defendant to state names and addresses of
all persons then known to defendant who had knowledge of circumstances attending death of a decedent would be
sustained; there is no rule of law nor obiter dictum that would impose upon party to furnish information of this kind.
O'Brien v Equitable Life Assurance Soc. (1953, DC Mo) 13 FRD 475.
In action whereby plaintiff sought to enjoin alleged infringement of his patented process for extracting oil from
cotton seed, interrogatories propounded by plaintiff were so broad and unlimited as to time and subject matter that to
require plaintiff to answer them would be unreasonably and unduly oppressive where interrogatories sought to elicit
information from plaintiff relative to its transactions involving sales or deliveries of equipment, apparatus, or machinery
useful in solvent extraction of oil-bearing materials, services performed by its employees with respect to such
equipment, apparatus, or machinery, identity of employees furnishing such services, nature of material processed by
such machinery, equipment, or apparatus, and specifications or recommendations set or made by plaintiff with respect
to operation of such machinery, equipment, or apparatus. V. D. Anderson Co. v Helena Cotton Oil Co. (1953, DC Ark)
117 F Supp 932, 100 USPQ 413.
Interrogatory in patent infringement suit which sought information as to all installations by one defendant of certain
ovens outside the district and also for years prior to the date of plaintiff's patent was too broad in scope and objection
thereto was sustained. Otto v Koppers Co. (1955, DC W Va) 134 F Supp 886, 106 USPQ 406.
Interrogatories were objectionable where information sought related to activities of defendants for period of more
than 20 years. Konczakowski v Paramount Pictures, Inc. (1957, DC NY) 20 FRD 588.
Objections to interrogatories would be sustained where interrogatories were of such broad nature, so ambiguous and
so wanting in specificity that they were burdensome and oppressive; concern with minute detail in interrogatories may
negate value of interrogatory procedure by harassing opposing party with undue burden which he ought not be
compelled to bear. Wing v Challenge Machinery Co. (1959, SD Ill) 23 FRD 669, 2 FR Serv 2d 512.
In personal injury action, interrogatory requesting names and addresses of all persons known to defendant who had
knowledge concerning state of plaintiff's health prior to date on which plaintiff originally applied for employment with
defendant was not objectionable on grounds of burdensomeness. Coyne v Monongahela C. R. Co. (1959, WD Pa) 24
FRD 357, 2 FR Serv 2d 550.
Where seaman sued his employer for damages alleged to have been suffered by him while member of crew of
employer's vessel, interrogatory requiring employer to set forth all information, including conflicting information, in
possession of his attorneys, investigators, underwriters, or other representatives, relating to accident involving plaintiff
and surrounding circumstances, and to indicate source of each item of information was objectionable on ground, inter
alia, that it would require defendant to prepare summarization of all available information and would be excessively
burdensome. Pankola v Texaco, Inc. (1960, ED Pa) 25 FRD 184, 3 FR Serv 2d 551.
Party may not be required by interrogatories to submit every item of evidence he expects to produce on trial of case;
to permit type of disclosure which elicits every minute detail of evidence would result in extreme hardship and
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confusion, particularly in antitrust actions where issues subject to proof are often broad and manifold. United States v
Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv 2d 571.
Any interrogatory which is too general and all-inclusive need not be answered; thus, objection to interrogatory
stating "please state all the facts in your possession. . .", relative to certain occurrences was objectionable. Stovall v
Gulf & South American S.S. Co. (1961, SD Tex) 30 FRD 152, 6 FR Serv 2d 638.
Government's objection to defendants' interrogatories on the ground that they were so broad and comprehensive as to
call for every minute detail of government's evidence would be sustained. United States v Grinnell Corp. (1962, DC
RI) 30 FRD 358, 5 FR Serv 2d 564.
In antitrust suit, interrogatories requesting that there be furnished names of all persons from whom plaintiffs, or their
officers, employees, or agents had taken or requested statements was too broad since it called not only for persons from
whom statements had been taken, but from whom they had ever been requested and could cover both written and oral
statements. Uinta Oil Refining Co. v Continental Oil Co. (1964, DC Utah) 226 F Supp 495, 8 FR Serv 2d 33.31, Case
1.
Objections to interrogatories on ground that they were too broad and demanding would be sustained where
interrogatories sought to determine true relationship of party defendants to one another in hope that legal relationship
would be disclosed making possible ultimate liability of oil company, and, to this end, many interrogatories sought
information as to joint operation, control, ownership, management, and business objectives of one oil company and
another oil company, while others attempted to establish relation of individual defendant to one of the oil companies.
Greene v Raymond (1966, DC Colo) 41 FRD 11, 10 FR Serv 2d 881.
In personal injury action in which plaintiff sought damages for injuries suffered when he was employed on
defendant's vessel, defendant's objection to interrogatory calling for recitation of all information defendant possessed
relating to accident would be sustained as interrogatory was entirely too broad to permit effective response. Mort v A/S
D/S Svendborg (1966, ED Pa) 41 FRD 225, 10 FR Serv 2d 859.
Defendants can only be required to answer interrogatories as to their position on specific points; thus, interrogatories
asking defendants to give concise statement of facts as to how they contended that occurrences took place, setting forth
what knowledge they had as to how arrest warrants or which would require defendant to state its legal position with
regard to entire case was too broad. Jones v Goldstein (1966, DC Md) 41 FRD 271, 10 FR Serv 2d 836, 10 FR Serv 2d
907.
In actions brought pursuant to Title VII of Civil Rights Act of 1974, interrogatory asking defendant to supply
seniority list of all of its employees, specifying race of each, was not subject to objection on grounds that answering
such interrogatory would be unduly burdensome. King v Georgia Power Co. (1970, ND Ga) 50 FRD 134, 2 BNA FEP
Cas 447, 2 CCH EPD P 10160, 62 CCH LC P 9389, 13 FR Serv 2d 861.
Discovery requests in employment discrimination action of magnitude, uselessness, and burdensomeness of several
hundred repetitious, overlapping, and ambiguous individual inquiries of boiler plate, all purpose variety designed to
ferret out every bit of information which might arguably be relevant will be stricken in their entirety. Cheers v Chester
Upland School Dist. (1979, ED Pa) 28 FR Serv 2d 535.
Plaintiffs' claim in antitrust litigation that because defendant's interrogatories seek information about individual
transactions over 15 year period, they are unduly burdensome is without merit because purchasing practices of plaintiffs
are relevant inquiry throughout alleged 15 year conspiracy period; answering interrogatories for 15 year period is
therefore, not burdensome, and this is especially so because defendants have been required to respond for whole alleged
conspiracy period and beyond on matters at issue. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD
260, 28 FR Serv 2d 116.
Motion to compel response to interrogatories was granted as to two interrogatories, where court concluded that
interrogatories requested information that was relevant to claims and defenses, but overreached to extent they sought
information generally about every current and former business client; thus, court found that defendant individual should
provide requested information respecting every business client only through 1995, when plaintiff company alleged that
individual induced company to purchase insurance polices from individual. Vica Coal Co. v Crosby (2003, SD W Va)
212 FRD 498.
In wrongful death action for injuries received by plaintiff's decedent in automobile accident, interrogatory asking that
at time of collision, whether policy or policies of public liability insurance cover "any other person" was ridiculously
broad; if read literally, it would be asking defendant to supply name of every person who has public liability insurance.
Slomberg v Pennabaker (1967, MD Pa) 42 FRD 8, 10 FR Serv 2d 794.
130. Inquiries or investigations required
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In action by motion picture theater operators against distributors of motion pictures, interrogatories imposing upon
defendants task of investigating situation in numerous communities, towns and cities throughout United States to
determine whether other defendants or other parties operated any theaters in such locations where assumed licensees of
party questioned operated were improper because such interrogatories were not related to acts or situations within
knowledge of such defendant. Savannah Theatre Co. v Lucas & Jenkins (1943, DC Ga) 10 FRD 461.
Interrogatories should not impose upon opposing party duty to make inquiries or conduct investigations. O'Brien v
Equitable Life Assurance Soc. (1953, DC Mo) 13 FRD 475.
Plaintiff's objection to interrogatories on grounds that to answer would require plaintiff to make additional
investigation of records which were in defendant's custody would be overruled; where information is clearly relevant to
case and plaintiff would have to gather most of it for its own preparation of trial, fact that basis of information sought is
contained in defendant's records is not controlling. Mitchell v Savini (1960, DC Mass) 25 FRD 275, 39 CCH LC P
66153, 3 FR Serv 2d 531.
If answer to any of party's interrogatories can only be provided by resort to other party's experts, other party should
so state in answer to such interrogatory and requesting party may then only ascertain information through expert
discovery as provided for in Rule 26 and may not do so through vehicle of contention interrogatories. Roberts v Heim
(1989, ND Cal) 130 FRD 424.
Discovery of reports prepared by adverse party's expert should not ordinarily be permitted in absence of showing that
factual information, which is necessary for moving party's trial preparation, cannot be obtained by moving party's
independent investigation or research; in copyright infringement action, party is not required to answer interrogatory
calling for disclosure of whether two musical compositions had been compared and, if so, name and address of person
making comparison because underlying facts are equally available and party seeking discovery has not shown special
need. Acuff-Rose Publications, Inc. v Silver Star Publishing Co. (1967, MD Tenn) 11 FR Serv 2d 860.
131. Comprehensive outline of legal theories requested
Objections to interrogatories, in civil antitrust action, asking for extremely comprehensive outline of legal theories
which plaintiff would employ would be sustained for they would impose burden on plaintiff of submitting voluminous
brief on law at early stage. United States v Renault, Inc. (1960, SD NY) 27 FRD 23, 3 FR Serv 2d 571.
132. Question ambiguous or vague
In civil antitrust action, government's objections to eight interrogatories would be sustained on ground that they were
oppressive and unduly burdensome where all interrogatories were predicated on first one which sought information
about each agency of government of United States without defining what they meant by it. United States v Grinnell
Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
Objection to interrogatory asking defendant what prompted him to drive front of his car into left rear of another car
on occasion in question, on ground that such interrogatory was, inter alia, vague and of too general and all inclusive a
nature would not be sustained; that it was somewhat vague and general was not itself justification for refusal to answer,
for in no event could requiring defendant to answer question be burdensome. Pressley v Boehlke (1963, WD NC) 33
FRD 316, 7 FR Serv 2d 656.
Objection to interrogatory asking defendant in what way he could have avoided collision involving his car and
another car on ground that such interrogatory was, inter alia, vague and of too general and all inclusive a nature, would
not be sustained. Pressley v Boehlke (1963, WD NC) 33 FRD 316, 7 FR Serv 2d 656.
In patent-oriented declaratory judgment action before court for consideration, inter alia, of defendant's objection to
plaintiff's interrogatories, interrogatory asking whether liquid coffee extract is stored at certain temperatures without
"substantial adverse flavor effects" was objectionable on grounds that it was not specific enough to be answered without
requiring defendant to exercise its discretion and judgment in determining what is intended to be covered. Struthers
Scientific & International Corp. v General Foods Corp. (1968, SD Tex) 45 FRD 375, 159 USPQ 565, 12 FR Serv 2d
767.
133. Existence of reasonable alternative discovery method
Where plaintiff propounded 58 numbered interrogatories most of which contained number of subdivisions so that
total number propounded exceeded 200 and counsel for plaintiff indicated that after interrogatories were answered he
was going to examine defendant before trial, use of two procedures would be abuse of interrogatory procedure within
meaning of Rule 33. Breeland v Yale & Towne Mfg. Co. (1960, ED NY) 26 FRD 119, 3 FR Serv 2d 570.
Although inconvenience and burden are always the lot of party to whom interrogatories are propounded, there must
necessarily be limits beyond which a party should not be required to go; this is particularly true when there exists
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reasonable alternative discovery method than that employed by inquiring party. Triangle Mfg. Co. v Paramount Bag
Mfg. Co. (1964, ED NY) 35 FRD 540, 143 USPQ 145, 8 FR Serv 2d 33.353, Case 3.
If burden of deriving information over alleged 15 year conspiracy period in antitrust litigation is substantially same
for defendants as it is for plaintiffs, Rule 33 proffer with identification of relevant documents will be sufficient to
answer interrogatories; in event that plaintiffs are unwilling to undertake searches necessary to respond to
interrogatories, alternative is to permit defendants' counsel to search through plaintiffs' files and ascertain relevant
documents. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
134. Miscellaneous
District Court committed reversible error in civil rights case involving alleged employer discrimination by sustaining
objection to plaintiff's Rule 33 pretrial interrogatories which, among other things, sought information regarding
employees at one of employer's plants, information regarding job vacancies within plant, and information regarding
who applied for, and who was selected for, vacancies, where interrogatories sought relevant information and were not
burdensome. Burns v Thiokol Chemical Corp. (1973, CA5 Ala) 483 F2d 300, 6 BNA FEP Cas 269, 6 CCH EPD P
8737, 17 FR Serv 2d 884, 31 ALR Fed 646, reh den (1973, CA5 Ala) 485 F2d 687, 6 CCH EPD P 8737.
In an action against a city to recover on a construction contract wherein the city filed counterclaims for alleged
nonperformance, in view of the length of the pleadings and of the contract involved, interrogatories would be deemed
proper and would not be refused because the information could be obtained by taking oral depositions or because they
imposed a vexatious and harassing burden upon the defendant. Canuso v Niagara Falls (1945, DC NY) 4 FRD 362.
Interrogatory asking what investigation was made by defendant employer as to accuracy of information which
plaintiff gave in his employment application and medical examination was not objectionable on grounds that
interrogatories sought to discover possible impeaching evidence. Coyne v Monongahela C. R. Co. (1959, WD Pa) 24
FRD 357, 2 FR Serv 2d 550.
Defendant in personal injury action cannot be compelled to answer certain interrogatories directed to whether
defendant or its investigators had filmed or taken photographs of plaintiff engaging in day-to-day activities after
accident since if such photographs or film exists they were taken for purpose of impeaching plaintiff's testimony as to
nature and extent of his injuries and are not subject to disclosure in view of local court rule protecting impeachment
matter from disclosures. Bogatay v Montour R. Co. (1959, WD Pa) 177 F Supp 269, 2 FR Serv 2d 548.
Where four corporate defendants filed identical set of interrogatories addressed to plaintiff, and plaintiff objected
upon ground that, if interrogatories were complied with, plaintiff would be required to furnish copies of documents to
four defendants, plaintiff's objections would be upheld. Lumbermen's Mut. Casualty Co. v Pistorino & Co. (1961, DC
Mass) 28 FRD 1, 5 FR Serv 2d 529.
In case involving claims for $ 500,000 penalties and attorney's fees, where information requested by interrogatories
would facilitate disposition of litigation, either favorably or unfavorably to plaintiff, and information sought was of type
that was peculiarly within knowledge of plaintiff, objection that interrogatories as a whole were burdensome would be
overruled; general objections are not favored in any event. Young Spring & Wire Corp. v American Guarantee &
Liability Ins. Co. (1963, WD Mo) 32 FRD 345, 7 FR Serv 2d 660.
Defendant in personal injury action cannot be compelled to answer interrogatory questioning him whether he, his
agents, or attorneys had obtained motion picture of plaintiff taken after accident because plaintiff merely wishes to
discover whether in fact such motion picture exist and not arguing her entitlement to see films before trial and because
films represent material prepared for cross-examination and or impeachment and is not subject to disclosure. Hikel v
Abousy (1966, DC Md) 41 FRD 152, 10 FR Serv 2d 856.
In proceeding involving objections to interrogatories arising from action by plaintiff against defendant for damage to
shipment of pipe, interrogatories propounded by defendant seeking information relating to other shipments of pipe
received by plaintiff or its agent 90 days before and after receipt of damaged pipe was not objectionable on grounds that
information sought was not within plaintiff's knowledge and would be unduly burdensome to obtain, where there was
nothing to indicate that sought-after information could not be obtained from records of plaintiff's agent who received
goods, or that information regarding storing of pipe was not obtainable from present key employees of plaintiff's agent.
Kerr-McGee Corp. v Texas Oklahoma Express, Inc. (1967, WD Okla) 43 FRD 336, 11 FR Serv 2d 857.
Defendant in antitrust action is entitled to have plaintiffs answer interrogatories seeking more precise explanation of
factual content of charges made against them and, in cases where specific predatory conduct has been charged, exactly
which plaintiffs claim that they have been subject of such conduct; in light of vague nature of complaint, defendant is
entitled to use discovery process to illuminate claims, even though this may burden plaintiffs. Bowen v The News
(1969, SD NY) 13 FR Serv 2d 908.
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Interrogatories requesting information respecting the color of defendant's hair and eyes, date and place of birth and of
marriage among other things in a personal injury suit arising from an automobile accident were oppressive and
frivolous. Frost v Williams (1969, DC Md) 46 FRD 484, 13 FR Serv 2d 908.
In action brought under Title VII of Civil Rights Act, plaintiff is entitled to have employer answer interrogatory
seeking information as to how provisions of collective bargaining agreement are applied, even though preparation of
answer by employer will be time-consuming and costly, because information is crucial to issues of suit. King v
Georgia Power Co. (1970, ND Ga) 50 FRD 134, 2 BNA FEP Cas 447, 2 CCH EPD P 10160, 62 CCH LC P 9389, 13
FR Serv 2d 861.
In action brought to collect purchase price of carpet allegedly sold to defendant, where defendant, by interrogatory,
sought to learn identity of any customer who had complaint during particular year concerning defective merchandise,
plaintiff would not be obliged to answer unless defendant first posted bond to guarantee payment of cost of assembling
required data, since answering of interrogatory would require enormous amount of time and effort and was of doubtful
relevance. Concept Industries, Inc. v Carpet Factory, Inc. (1973, DC Wis) 59 FRD 546.
In action brought for alleged race discrimination in employment by black teacher who sought to represent class of
other black teachers, defendants' objections of burdensomeness and confidentiality for interrogatories they did not
answer were well taken where plaintiff had failed to demonstrate need for further information to prosecute individual
claim, and where defendant supplied factual material sought by interrogatories reasonably relevant to issues remaining
in individual suit so as to be relieved from making further answers to interrogatories. Scofield v Board of Trustees
(1975, ND Miss) 65 FRD 595, 19 BNA FEP Cas 865, 19 FR Serv 2d 1028.
Interrogatories are not objectionable on ground of burden where interrogatories relate to details of allegations in
defendant's answer as to its statute of limitations defense and to information defendant would gather in preparation of its
own case as to plaintiff's fraudulent concealment claim. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83
FRD 256, 28 FR Serv 2d 109.
In antitrust litigation plaintiffs' catch-all objection, naming every conceivable ground, including allegation that
interrogatories are duplicative, not relevant to subject matter of litigation, oppressive, and overly vague, is so broad as to
be meaningless; and although filing by plaintiffs of catch-all objection is clearly improper, supplement filed after time
to respond had run, which contains specific objections to interrogatories may be considered; but where reasonable
question exists as to whether interrogatory should be answered, plaintiffs who file untimely objections will be ruled
against. In re Folding Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
Third-party state defendant's claim of sovereign immunity under Eleventh Amendment from suit by plaintiff directly
against it does not shield state defendant from responsibility of responding to interrogatories propounded by plaintiff
since state is properly before court as third-party defendant and state statute providing that state cannot be required to
respond to interrogatories in state court proceedings does not apply in federal courts. Andrulonis v United States (1982,
ND NY) 96 FRD 43, 37 FR Serv 2d 777.
Interrogatories which direct plaintiffs to "state the facts" supporting contentions of complaints are appropriate, since
plaintiffs are not asked to identify sources of those facts or evidence which supports facts, and even if substantial burden
is imposed on plaintiffs by such interrogatories, that burden is neither unreasonable nor unfair. In re Savitt/Adler Litig.
(1997, ND NY) 176 FRD 44, request gr (1998, ND NY) 1998 US Dist LEXIS 1419.
C. Other Grounds
135. Generally
The trial court erred in sustaining the school board's objections to plaintiff's interrogatories, where the plaintiffs, who
were seeking vindication of their constitutional rights, were entitled to know whether the board intended to strictly
comply with the directives of the district court, and plaintiffs should not be required to rely on incomplete and possibly
inaccurate reports obtained from various other sources. Christian v Board of Education (1971, CA8 Ark) 440 F2d 608.
After objections to interrogatories served by some of the defendants have been sustained by a judge of coordinate
jurisdiction sitting in the same court and in the same case, objections to identical interrogatories subsequently served by
other defendants should also be sustained. Securities & Exchange Com. v Timetrust, Inc. (1940, DC Cal) 33 F Supp
590.
Interrogatory asking party interrogated if he had made such inquiry as would enable him to make full and complete
answers was subject to objection since Rule 33 requires that interrogatories be answered by party served or if
corporation by any officer or agent, who shall furnish such information as is available to party; interrogatory was
unnecessary. Sutherland Paper Co. v Grant Paper Box Co. (1948, DC Pa) 8 FRD 416, 79 USPQ 183, 79 USPQ 211,
79 USPQ 212.
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In action brought by bankruptcy trustee seeking reclamation of certain property, or its money value, transferred by
bankrupt to defendant corporation within four months prior to filing of petition in bankruptcy against bankrupt,
objection to interrogatory propounded by defendant corporation seeking value of goods, equipment, and fixtures in
possession of defendant corporation would be sustained. Klein v Leader Electric Corp. (1948, DC Ill) 81 F Supp 624.
Sovereign immunity means only that the sovereign may not be sued without its consent, and in Tennessee the
carrying of liability insurance is construed as a limited consent or waiver of the immunity; thus, reasons urged by city in
opposition to answering interrogatories lose their force, and objections to answering interrogatories should be overruled.
Bailey v Knoxville (1953, DC Tenn) 113 F Supp 3, affd (1955, CA6 Tenn) 222 F2d 520.
Objections to interrogatories and requests for admissions inquiring into issues that have been finally adjudicated in
another action are proper because party may not use discovery to collaterally attack prior decree. Rohm & Haas Co. v
Consolidated Industrial & Agricultural Chemicals, Inc. (1958, WD Mich) 1 FR Serv 2d 530.
Interrogatories that are clearly requests for admission under Rule 36 are improper. Meixsell v Delaware, L. & W.
Railroad (1960, ED Pa) 26 FRD 152, 3 FR Serv 2d 527.
In antitrust action against drug manufacturers charging defendants with participation in an alleged combination and
conspiracy to restrain and monopolize commerce in certain drugs, government's objections to defendants' interrogatories
which called for detailed information as to the medical uses and physical effects of various drugs, for alleged purpose of
obtaining clarification of government's position with respect to the relevant market, would be sustained. United States
v Carter Products, Inc. (1961, SD NY) 28 FRD 373, 4 FR Serv 2d 553.
In wrongful death action for injuries received by plaintiff's decedent in automobile accident, defendant's objection to
interrogatory asking whether she had "ever" had driver's license suspended, canceled, or revoked for any reason was
meritless where defendant had stated she had been licensed driver for 16 years and it was obvious that such was the time
referred to since interrogatory in question could only relate to time defendant was licensed driver. Slomberg v
Pennabaker (1967, MD Pa) 42 FRD 8, 10 FR Serv 2d 794.
Person to whom interrogatories are served may not object to them merely because explanation of its case requires
consultation with one or more experts. Hockley v Zent, Inc. (1980, MD Pa) 89 FRD 26, 31 FR Serv 2d 1225.
136. Prematurity
Upon interlocutory appeal from order denying items of discovery in railway reorganization proceeding where
District Court had sustained objections to interrogatories requesting information regarding operation projects on ground
that they sought premature answers based upon speculation and opinion, discretionary action of lower court would not
be disturbed even though it appeared from record before court that rejected interrogatories might well have presented
matters appropriate for discovery under Rule 26(b)(1) and 33(b), since appellants would be entitled to seek same
information at time of hearing upon petition for order of sale or lease of secured assets. In re Erie L. R. Co. (1974, CA6
Ohio) 496 F2d 1189, 19 FR Serv 2d 132.
In suit for portal-to-portal pay under provisions of Fair Labor Standards Act, objection that interrogatory propounded
to defendant was premature would be sustained where defendant had not determined its defenses. Adelman v Nordberg
Mfg. Co. (1947, DC Wis) 6 FRD 383, 12 CCH LC P 63775.
In action where plaintiff sought to recover sums of money alleged to be due and owing to it for gasoline, oil and
other products supplied by it to defendant and defendant contended that oil was so contaminated as not to be
merchantable and unfit for purpose intended, interrogatory requesting defendant to state sums of money which it would
be required to expend in future to service heating equipment of customers, to repair same, and to compensate said
customers for damages sustained by them, and also called for method of computation of said sums which defendant
would be required so to expend and pay in future, was objectionable on grounds that answers to those questions could
reflect only guesswork at time interrogatories were propounded. American Oil Co. v Pennsylvania Petroleum Products
Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493.
In action for patent infringement, interrogatories propounded by defendant concerning contact of defendant's
customers by plaintiff for alleged purpose of obtaining facts to support defense of misuse of patent and for purpose of
providing basis for counterclaim based on unfair competition was objectionable since discovery aimed at defense of
misuse of patent was improper until that issue was established by pleadings. Lee v Electric Products Co. (1963, ND
Ohio) 37 FRD 42, 9 FR Serv 2d 33.319, Case 3.
In action brought by United States under Federal Food, Drug and Cosmetic Act for purpose of seizing article alleged
by United States to be a drug, interrogatory propounded by government seeking names and addresses of defendant's
witnesses and identity of its experts was not objectionable on ground that demand was premature and impossible of
complete fulfillment at time interrogatory was propounded; if defendant was unable to determine identity of all
witnesses at time interrogatory was propounded, it should so state and disclose identity of witnesses it was then certain
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it would rely upon without prejudice to expand or retract list at pretrial. United States v 216 Bottles (1965, ED NY) 36
FRD 695, 9 FR Serv 2d 33.321, Case 2.
It is inappropriate for party to determine on his own that subject matter of inquiry is "premature". Fond Du Lac
Plaza, Inc. v Reid (1969, ED Wis) 47 FRD 221, 13 FR Serv 2d 1011.
In action for alleged violations of federal antitrust laws, defendants would be instructed to appropriately and
adequately respond to interrogatories resubmitted by plaintiff despite defendants' contention that plaintiff's request for
discovery was premature as result of plaintiff's own deliberate withholding of fundamental information and that
plaintiff's motion for order compelling discovery was attempt to retaliate for earlier motion filed by defendants to
require proper answers to interrogatories. Sargent-Welch Scientific Co. v Ventron Corp. (1973, ND Ill) 59 FRD 500,
1973-2 CCH Trade Cases P 74791, 17 FR Serv 2d 504.
Plaintiffs' objection to interrogatory seeking identification of coconspirators in antitrust litigation on grounds of
prematurity is without merit where discovery has been completed except for supplemental depositions. In re Folding
Carton Antitrust Litigation (1979, ND Ill) 83 FRD 260, 28 FR Serv 2d 116.
Patent infringement plaintiff failed to show that early answers to contention interrogatories served on defendants
would contribute meaningfully to clarifying issues or assisting goals of discovery; contention interrogatories are often
deferred until end of discovery period, and if defendants were forced to respond, they might have to articulate theories
of their case not yet fully developed. B. Braun Medical v Abbott Lab. (1994, ED Pa) 155 FRD 525, 30 FR Serv 3d 288.
137. Tardiness
In a case which had been ordered on the jury list in 1938 and in which interrogatories were filed in October, 1940,
objections by an intervener who had filed his petition to intervene in April, 1935, on the ground that such interrogatories
were too late, would be overruled in exercise of discretion. United States for benefit of General Electric Supply Corp.
v W. E. O'Neil Const. Co. (1940, DC Mass) 1 FRD 529.
A defendant who waited until more than a year after the filing of the complaint and until after the case has been set
for trial before filing interrogatories was tardy in asserting his rights, and his tardiness was deemed a ground for
sustaining objections to the interrogatories. Securities & Exchange Com. v Timetrust, Inc. (1940, DC Cal) 33 F Supp
590.
Defendant is not required to answer interrogatories submitted at time immediately prior to trial where case is over 2
1/2 years old and parties have had more than ample time to conduct discovery; compelling discovery at this time would
unduly prejudice and burden defendant, and discovery at late date could delay trial of case. Russell v Unipress Co.
(1971, ED Pa) 15 FR Serv 2d 845.
138. Hearsay
Hearsay has never been considered as valid ground of objection to interrogatories. Firemen's Mut. Ins. Co. v
Erie-Lackawanna R. Co. (1964, ND Ohio) 35 FRD 297, 8 FR Serv 2d 33.21, Case 4.
Answer to interrogatory which seeks to charge defendant crane operator with knowledge of inherently dangerous
condition of crane he was operating or to show that he believed its condition was dangerous and failed to act is not
hearsay since interrogatory is not seeking to prove directly that crane operator was negligent. Beatty v H. B. Owsley &
Sons, Inc. (1981) 53 NC App 178, 280 SE2d 484, cert den (1981) 304 NC 192, 285 SE2d 95.
139. Requiring answer based on false hypothesis
Party is not required to file conjectual answers to interrogatories based upon false premises. Tobacco & Allied
Stocks, Inc. v Transamerica Corp. (1954, DC Del) 16 FRD 537.
A party may not refuse to answer an interrogatory upon ground that it is phrased in such a manner that answer given
would be predicated upon false hypothesis according to interrogated party's theory of case. United States v 216 Bottles
(1965, ED NY) 36 FRD 695, 9 FR Serv 2d 33.321, Case 2.
140. Speculation
Upon interlocutory appeal from order denying items of discovery in railway reorganization proceeding where
District Court had sustained objections to interrogatories requesting information regarding operation projects on ground
that they sought premature answers based upon speculation and opinion, discretionary action of lower court would not
be disturbed even though it appeared from record before court that rejected interrogatories might well have presented
matters appropriate for discovery under Rule 26(b)(1) and 33(b), since appellants would be entitled to seek same
information at time of hearing upon petition for order of sale or lease of secured assets. In re Erie L. R. Co. (1974, CA6
Ohio) 496 F2d 1189, 19 FR Serv 2d 132.
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Party is not required to answer interrogatories calling for speculation. Baker v Yellow Cab Co. (1951, DC Mo) 12
FRD 84.
In action where plaintiff sought to recover sums of money alleged to be due and owing to it for gasoline, oil and
other products supplied by it to defendant and defendant contended that oil was so contaminated as not to be
merchantable and unfit for purpose intended, interrogatory requesting defendant to state sums of money which it would
be required to expend in future to service heating equipment of customers, to repair same, and to compensate said
customers for damages sustained by them, and also called for method of computation of said sums which defendant
would be required so to expend and pay in future, was objectionable on grounds that answers to those questions could
reflect only guesswork at time interrogatories were propounded. American Oil Co. v Pennsylvania Petroleum Products
Co. (1959, DC RI) 23 FRD 680, 2 FR Serv 2d 493.
141. Requiring summaries
Defendants and cross-complainants could not force plaintiffs and cross-defendants to give summation of oral
conversations. Fishermen & Merchants Bank v Burin (1951, DC Cal) 11 FRD 142.
Objections to interrogatories on the ground that they sought information in nature of summarization and
interpretation of documents or statements of fact concerning their genuineness had validity only insofar as interrogated
parties were requested to summarize documents already produced by them; interrogatory is not objectionable merely
because it asks for information which parties must produce by reference to documents. Leonia Amusement Corp. v
Loew's, Inc. (1955, DC NY) 18 FRD 503.
142. Requiring analysis of facts
Although Rule 33 permits request for information which reasonably might be expected to be available to defendant
as matters of record or personal knowledge of its officers or agents, courts have drawn a line when, under Rule 33,
attempt is made to require party to do more than supply information within its knowledge or possession such as request
that defendant analyze, evaluate or substantiate certain facts or information. Dusek v United Air Lines, Inc. (1949, DC
Ohio) 9 FRD 326.
Insurer would not be compelled to answer interrogatory which required it to employ actuary to calculate life
expectancies since plaintiffs showed no reason why they could not obtain opinion through own actuarial expertise. De
Christoforo v Sarris (1989, ED Pa) 128 FRD 209.
143. Design to frustrate cross-examination
Ordinarily party need not divulge facts necessarily known to his opponent where only purpose of interrogatory is to
prevent effect of cross-examination. Stone v Marine Transport Lines, Inc. (1959, DC Md) 23 FRD 222, 1 FR Serv 2d
512.
In personal injury action in which plaintiff sought damages for injuries allegedly suffered when he was employed on
defendant's vessel, defendant's objection to interrogatory requiring defendant to state in detail its knowledge of
plaintiff's prior illnesses and injuries was sustained since it was apparent that object of interrogatories was not to
discover facts in discovery sense of the word, but to frustrate effective cross-examination and to avoid possibility of
impeachment; court was not persuaded solely by fact that plaintiff may have already had information sought. Mort v
A/S D/S Svendborg (1966, ED Pa) 41 FRD 225, 10 FR Serv 2d 859.
144. Identical cross-interrogatory
Where plaintiffs were unable to answer defendant's interrogatory which was allowed by court, they would not be
permitted to obtain information which they sought by cross-interrogatory embracing substantially same subject matter;
they should resort to discovery under Rule 34. Brown v Dunbar & Sullivan Dredging Co. (1948, DC NY) 8 FRD 105.
Where plaintiff filed objections to interrogatories for reason that information sought thereby was same as information
sought by interrogatories propounded by plaintiff, objection would be sustained. Woods v Kornfeld (1949, DC Pa) 9
FRD 196.
145. Required answer as limiting proof
A party may not object to interrogatories on the ground that answers thereto will limit his proof, since additional
answers to the interrogatories may be made as additional information is secured. RCA Mfg. Co. v Decca Records, Inc.
(1940, DC NY) 1 FRD 433, 47 USPQ 99.
VI. USE OF INTERROGATORIES OR ANSWERS
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USCS Fed Rules Civ Proc R 33
146. Generally
Answers to interrogatories made by officers and employees of corporate defendant may be read to jury by defendant.
Thiel v Southern P. Co. (1948, CA9 Cal) 169 F2d 30, cert den (1948) 335 US 872, 93 L Ed 416, 69 S Ct 162, reh den
(1948) 335 US 900, 93 L Ed 435, 69 S Ct 294.
Answers to interrogatories may be used for any purpose. Gridiron Steel Co. v Jones & Laughlin Steel Corp. (1966,
CA6 Ohio) 361 F2d 791, 149 USPQ 877, 10 FR Serv 2d 928.
Various principles must be balanced against one another in determining whether or not interrogatory is proper, and
Rule 33 recognizes that court should protect party from improper use of interrogatories. Maddox v Wright (1951, DC
Dist Col) 11 FRD 170.
147. Substitute for trial
Although interrogatories may cover as broad a field as when interrogated party is called as witness at trial,
interrogatories are not to serve as substitute for trial itself. Fishermen & Merchants Bank v Burin (1951, DC Cal) 11
FRD 142.
Unusually complicated and protracted derivative suit by stockholders charging various fraudulent acts by controlling
stockholders and officers of defendant corporations could not be tried on interrogatories alone. Berkley v Newman
Realty Co. (1963, WD Mo) 33 FRD 516, 7 FR Serv 2d 668.
148. Impeachment
Answers to interrogatories may be used to impeach party or witness in another lawsuit. Kesmarki v Kisling (1968,
CA6 Ohio) 400 F2d 97, 19 Ohio Misc 1, 46 Ohio Ops 2d 258.
That answers to interrogatories may be used for impeachment is no bar. Rediker v Warfield (1951, DC NY) 11 FRD
125.
149. Admissions
Answers to interrogatories may be utilized as admissions but court has discretion to exclude them if they will
mislead the jury. Gadaleta v Nederlandsch-Amerekaansche Stoomvart (1961, CA2 NY) 291 F2d 212, 4 FR Serv 2d
578.
Answers to interrogatories clearly may be utilized as admissions. Giaraffa v Moore-McCormack Lines, Inc. (1967,
SD NY) 270 F Supp 342.
150. Evidence
With regard to criminal prosecution of two corporate officers for violations of Federal Food, Drug, and Cosmetic
Act, government's use of evidence obtained from interrogatories, which had been directed to corporation under Rule 33
of Federal Rules of Civil Procedure in civil condemnation proceeding under Act, to obtain evidence as to certain of
corporation's products, does not reflect such unfairness and want of consideration for justice as to violate due process or
constitute departure from proper standards in administration of justice, requiring exercise of Supreme Court's
supervisory power, where (1) government had not brought civil action solely to obtain evidence for criminal
prosecution, (2) corporation and its officers had been notified that Food and Drug Administration contemplated criminal
proceedings against them before interrogatories were answered by one of officers, (3) case did not involve defendant
without counsel or defendant who reasonably feared prejudice from adverse pretrial publicity or other unfair injury, and
(4) there were no special circumstances that might suggest unconstitutionality or even impropriety of criminal
prosecution. United States v Kordel (1970) 397 US 1, 25 L Ed 2d 1, 90 S Ct 763, 13 FR Serv 2d 868.
Party answering written interrogatories submitted by adversary cannot secure admission into evidence of his own
answers to such interrogatories. Lobel v American Airlines, Inc. (1951, CA2 NY) 192 F2d 217, cert den (1952) 342 US
945, 96 L Ed 703, 72 S Ct 558; Haskell Plumbing & Heating Co. v Weeks (1956, CA9 Alaska) 16 Alaska 436, 237 F2d
263; Grace & Co. v Los Angeles (1960, CA9 Cal) 278 F2d 771, 3 FR Serv 2d 562; F. & M. Skirt Co. v A. Wimpfheimer
& Bro., Inc. (1939, DC Mass) 25 F Supp 898.
Rule 43 permits use of the established equity rule that in case of death of a witness prior to cross-examination the
district judge is permitted to exercise discretion as to whether to admit the testimony given; when the testimony is in the
form of answers to interrogatories under Rule 33, the lack of opportunity to cross examine the decedent was not caused
by him or by the party proposing to use the answers, and the answers constitute the only evidence available to the party
introducing them, so that to exclude the answers would in effect deny him his day in court, it is not an abuse of
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USCS Fed Rules Civ Proc R 33
discretion for the district judge to admit the evidence in accordance with Rule 26(d). Treharne v Callahan (1970, CA3
Pa) 426 F2d 58, 14 FR Serv 2d 102.
Answers to interrogatories are admissible in evidence at the trial as a confession or for impeachment but not by the
answering party as a self-serving statement. Bailey v New England Mut. Life Ins. Co. (1940, DC Cal) 1 FRD 494.
Answers to interrogatories are not considered evidence until offered as such at trial, and if it appears at trial that
answers are not material or relevant, they can be excluded upon proper objection. Bowles v Keller Glove Mfg. Co.
(1945, DC Pa) 4 FRD 450.
In action brought by United States against defendant because of rent overcharges in violation of Housing and Rent
Act of 1947, it was not proper for defendant to establish her defense by use of interrogatories since they were merely
self-serving statements having no evidentiary value to defendant. United States v Smith (1951, DC Pa) 95 F Supp 622.
Answers to interrogatories are not necessarily admissible at trial. Nichols v Philadelphia Tribune Co. (1958, DC
Pa) 22 FRD 89.
Answers to interrogatories are not evidence until they are offered and ruled upon at trial. Montgomery Ward & Co.
v Fotopoulos (1963, DC Minn) 32 FRD 333, 7 FR Serv 2d 648, 7 FR Serv 2d 1054.
A mere ex parte statement in an answer to an interrogatory is admissible against the party answering the
interrogatory, but it is not admissible in evidence against anyone else, especially as the person giving the answer is not
subject to cross-examination. Stottlemire v Cawood (1963, DC Dist Col) 213 F Supp 897.
151. Motion for summary judgment
Interrogatories are not "depositions" referred to in Rule 56 so as to be considered on summary judgment. River
Junction v Maryland Casualty Co. (1940, CA5 Fla) 110 F2d 278, 134 ALR 727, cert den (1940) 310 US 634, 84 L Ed
1404, 60 S Ct 1077.
Interrogatories and answers thereto may properly be considered when ruling on a motion for summary judgment.
Champlin v Oklahoma Furniture Mfg. Co. (1959, CA10 Okla) 269 F2d 918, 2 FR Serv 2d 852, 74 ALR2d 978.
Trial court did not abuse its discretion in granting summary judgment to company on businessman's defamation
claim against it, even though businessman claimed that it granted summary judgment before discovery was completed,
as record showed that businessman served discovery requests after discovery deadline; however, even if businessman
had served them several days earlier, before discovery deadline, no abuse of discretion would have occurred in granting
summary judgment motion since discovery requests had to be served at least 30 days prior to completion of discovery
deadline. Thomas v Pacificorp (2003, CA10 Utah) 324 F3d 1176, 60 Fed Rules Evid Serv 1554.
Although answers to interrogatories did not comply with Rule 33 in that they were signed and verified by plaintiff's
attorney rather than by plaintiff, where plaintiff's sworn affidavit in support of motion for summary judgment
incorporated answers to interrogatories served on her and, therefore, served same purpose as her signing answers, such
answers may be considered in connection with motion for summary judgment particularly since defendant had not
moved to strike answers, and answers had been served several months prior to summary judgment motions without
objection to their form. Greene v United States (1978, ND Ill) 447 F Supp 885, 78-1 USTC P 13240, 42 AFTR 2d
78-6387.
152. Maneuvering other party into unfavorable position
It was never intended that party should by interrogatories compel adverse party to submit every item of evidence he
expects to produce on trial of case. United States v General Motors Corp. (1942, DC Ill) 2 FRD 528.
Interrogatories are not to be used as device or stratagem to maneuver adverse party into unfavorable tactical position,
for to do so would be to prevent remedy designed to advance disposition of controversies on their merits into weapon to
revive what has been aptly denominated as "the sporting theory of justice." Aktiebolaget Vargos v Clark (1949, DC Dist
Col) 8 FRD 635.
Answers to interrogatories, as adjunct to pleadings, do limit issues and define contentions of parties, but under
ordinary circumstances it is not their function to limit parties' proof in way that pleadings do; discovery rules are not to
be employed as stratagem to maneuver adverse party into unfavorable position. McElroy v United Air Lines, Inc.
(1957, DC Mo) 21 FRD 100.
Interrogatories should never be used to harass or vex opposing counsel or opposing party. United States v Grinnell
Corp. (1962, DC RI) 30 FRD 358, 5 FR Serv 2d 564.
While liberality in use of interrogatory should be the rule, interrogatory should not be used as device or stratagem to
maneuver adverse party into unfavorable tactical position. Berkley v Newman Realty Co. (1963, WD Mo) 33 FRD 516,
7 FR Serv 2d 668.
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USCS Fed Rules Civ Proc R 33
153. Pleading
Answers to interrogatories are not part of pleadings and cannot be considered upon motion to dismiss; thus,
defendant could not rely upon certain answers made by plaintiff to interrogatories under Rule 33 to reduce amount in
controversy below jurisdictional limit. Dunleer Co. v Minter Homes Corp. (1940, DC W Va) 33 F Supp 242.
Interrogatories and answers thereto are not part of pleadings. Munzer v Swedish American Line (1940, DC NY) 35 F
Supp 493.
Interrogatories are evidentiary in character; they are not considered as a pleading in the case; until they are offered in
evidence by either party they will not be considered by the court. Bowles v Safeway Stores, Inc. (1945, DC Mo) 4 FRD
469.
Although answers to interrogatories are not part of pleadings, they are evidence in record and can be considered by
court under Federal Rules. Alamo Theatre Co. v Loew's, Inc. (1958, DC Ill) 22 FRD 42.
VII. OPTION TO PRODUCE BUSINESS RECORDS
154. Generally
Interrogatories are relevant if they have a bearing on the subject matter of the action; however, where they would
involve much searching and tabulation by the answering party, they may impose an unnecessary burden, therefore, in
lieu of such interrogatories, the interrogating party may be allowed to inspect the records himself pursuant to Rule 34 or,
if trade secrets might be involved, to have an impartial third party examine the records and tabulate the information in
such a way that no trade secrets are disclosed. Triangle Mfg. Co. v Paramount Bag Mfg. Co. (1964, ED NY) 35 FRD
540, 143 USPQ 145, 8 FR Serv 2d 33.353, Case 3.
The requirements of Rule 33(c) are satisfied when the only source of the answers to the interrogatories is the raw
materials specified and which the other party may examine, audit or inspect. Atlanta Fixture & Sales Co. v Bituminous
Fire & Marine Ins. Co. (1970, ND Ga) 51 FRD 311, 14 FR Serv 2d 1407.
Rule 33(c) gives the party an option to make records available and place the burden of research on the party seeking
the information, it is clear that the new amendment is not designed to impose upon the interrogating party a mass of
records and thereby make the ascertaining of the answers to questions even more burdensome or expensive on the
interrogating party. Thomason v Leiter (1971, DC Ala) 52 FRD 290, 15 FR Serv 2d 330.
Rule 33(c) was not intended to diminish duty of parties to provide all information requested; response to
interrogatory that answer may (or may not) be found in records of interrogated party, accompanied by offer to permit
their inspection is not sufficient; rule does not shift to interrogating party obligation to find out whether sought after
information is ascertainable from files pandered, but only permits shift of burden to dig it out once respondents have
specified records from which answer can be derived or ascertained; if answer lies in records of respondent, it should say
so and if on the other hand they do not that also should be stated. In re Master Key (1971, DC Conn) 53 FRD 87, 1972
CCH Trade Cases P 73832, 15 FR Serv 2d 742.
In order to avoid any undue burden, it is appropriate for defendant simply to produce relevant documents for
inspection at respective branch office location since pertinent portions of defendant's records are not kept in one
location. Haykel v G.F.L. Furniture Leasing Co. (1976, ND Ga) 76 FRD 386, 22 BNA FEP Cas 507, 23 FR Serv 2d
582.
Party will not normally be compelled to answer interrogatory that requires compilation of data when that party is
willing under Rule 33(c) to allow requesting party access to records from which requesting party can make own
compilation, but exception exists where it appears compilation would have to be made by interrogated party in course of
preparation for trial; if requestee does not need and will not use more refined set of data, it need not prepare accurate set
of data, but if requestee intends to use more accurate set of data, then it must forthwith prepare accurate set of data,
keeping accurate account of costs, which shall be born equally by both parties. Penk v Oregon State Bd. of Higher
Education (1982, DC Or) 99 FRD 504, 37 BNA FEP Cas 916, 35 FR Serv 2d 420.
Rule 33(c) permits party to answer detailed interrogatories by providing business records where answer can be
found; idea behind rule is that when burden of deriving information from documents is equal between parties,
interrogating party should bear burden of compiling information; one party's familiarity with documents does not
necessarily create disparity in ease of discovery that would preclude resort to Rule 33(c). Compagnie Francaise
d'Assurance Pour le Commerce Exterieur v Phillips Petroleum Co. (1984, SD NY) 105 FRD 16, 1 FR Serv 3d 167, 79
ALR Fed 763.
If it is not feasible for defendants to ascertain and derive answers to interrogatories from plaintiff's records, then
plaintiff, as party most familiar with its records, must do research; in such situation plaintiff cannot avail itself of Rule
33(c). Puerto Rico Aqueduct & Sewer Authority v Clow Corp. (1985, DC Puerto Rico) 108 FRD 304.
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USCS Fed Rules Civ Proc R 33
Rule 33(c) option to produce business records is inapplicable where relative burden of research falls more heavily
upon defendants in answering interrogatories, in that it would be more efficient for plaintiffs to conduct review of
pertinent business records to obtain specific information from voluminous files, and research is not feasible for
defendants in that testing of samples can only take place at plaintiff's facilities. Puerto Rico Aqueduct & Sewer
Authority v Clow Corp. (1985, DC Puerto Rico) 108 FRD 304.
It is improper for party to invoke Rule 33(c) in answer to interrogatories and then claim that some or all of
documents containing information are privileged and not subject to disclosure. Blake Associates, Inc. v Omni Spectra,
Inc. (1988, DC Mass) 118 FRD 283, 9 FR Serv 3d 1346.
155. Interrogated party not required to sort material
Option provided for in Rule 33(c) relates especially to interrogatories which require party to engage in burdensome
or expensive research into his own business records in order to give answer; but party served must specify records and
cannot merely indicate that information sought may or may not be found in records made available. Daiflon, Inc. v
Allied Chemical Corp. (1976, CA10 Okla) 534 F2d 221, 1976-1 CCH Trade Cases P 60829, 21 FR Serv 2d 785, cert
den (1976) 429 US 886, 50 L Ed 2d 168, 97 S Ct 239.
In patent infringement case, where plaintiff, under Rule 33(c), opened its files to defendant and made available all of
documents requested by defendant, plaintiff did not have to sort out material and specifically answer each interrogatory
since both parties were in equal position to sort through material; plaintiff was not required to structure and organize
defendant's case. Technitrol, Inc. v Digital Equipment Corp. (1973, ND Ill) 62 FRD 91, 181 USPQ 87, 18 FR Serv 2d
1394.
Defendant in employment discrimination class action is not required to compile information from its business
records where (1) it is no greater burden for plaintiffs to compile information (2) information requested by plaintiffs can
be obtained from records defendant has made available; absent showing of willfulness or other egregious circumstances,
cost of preparing case for trial will not be shifted. Webb v Westinghouse Electric Corp. (1978, ED Pa) 81 FRD 431, 20
BNA FEP Cas 1231, 20 CCH EPD P 30145, 27 FR Serv 2d 589.
Interrogated party is not permitted to foist massive records on interrogator when deciphering is feasible only for one
familiar with records; Rule 33(c) is not available alternative if interrogatory can be responded to more readily and
conveniently by written answer. Compagnie Francaise d'Assurance Pour le Commerce Exterieur v Phillips Petroleum
Co. (1984, SD NY) 105 FRD 16, 1 FR Serv 3d 167, 79 ALR Fed 763.
Where defendant corporation elected to produce business records in response to interrogatories and pertinent records
were housed in defendant's out-of-state offices in many file cabinets, defendant must specify in sufficient detail records
sought by plaintiff and plaintiff could then go to out-of-state location to inspection/or copy records. Avramidis v
Atlantic Richfield Co. (1988, DC Mass) 120 FRD 450.
156. Option unavailable when documents contain insufficient information
If answer is readily available in more convenient form, Rule 33(c) should not be used to avoid giving ready
information to serving party. Daiflon, Inc. v Allied Chemical Corp. (1976, CA10 Okla) 534 F2d 221, 1976-1 CCH
Trade Cases P 60829, 21 FR Serv 2d 785, cert den (1976) 429 US 886, 50 L Ed 2d 168, 97 S Ct 239.
Defendant could not avail itself of Rule 33(c) and produce documents of which interrogatories sought information
instead of answering interrogatories where it was obvious that documents alone did not supply information requested.
Atlanta Coca-Cola Bottling Co. v Transamerica Ins. Co. (1972, ND Ga) 61 FRD 115, 18 FR Serv 2d 1053.
157. Miscellaneous
On assumption that plaintiff would adopt option of Rule 33 providing plaintiff to make records available to
defendant for inspection, copying, and abstracting, or summarizing, court would not order plaintiff to make search of
records which would require estimated 1,000 man hours, to answer interrogatory in action brought to collect purchase
price of certain carpet alleged to have been sold to defendant. Concept Industries, Inc. v Carpet Factory, Inc. (1973,
DC Wis) 59 FRD 546.
In antitrust litigation where plaintiff submitted answers to interrogatories which had been initially propounded some
4 months earlier, one paragraph answer was in contravention of Rule 33(c) where documents adverted to in answer were
wholly unspecified. In re Professional Hockey Antitrust Litigation (1974, DC Pa) 63 FRD 641, 1974-2 CCH Trade
Cases P 75209, revd on other grounds (1976, CA3 Pa) 531 F2d 1188, 1976-1 CCH Trade Cases P 60747, 21 FR Serv
2d 391, revd on other grounds (1976) 427 US 639, 49 L Ed 2d 747, 96 S Ct 2778, 1976-1 CCH Trade Cases P 60941,
21 FR Serv 2d 1027, reh den (1976) 429 US 874, 50 L Ed 2d 158, 97 S Ct 196, 97 S Ct 197 and affd without op (1976,
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USCS Fed Rules Civ Proc R 33
CA3 Pa) 541 F2d 275 and affd without op (1976, CA3 Pa) 541 F2d 275 and affd without op (1976, CA3 Pa) 541 F2d
275 and affd without op (1976, CA3 Pa) 541 F2d 275 and affd without op (1976, CA3 Pa) 541 F2d 275.
In copyright infringement action involving catalog, plaintiff corporation properly invoked, in answering
interrogatories propounded to it, Rule 33(c) option of specifying documentary materials from which answers might be
elicited and affording defendant corporation opportunity to inspect them, with exception of its answers to three
interrogatories, where plaintiff tacitly conceded that there were materials used in preparation of catalog which were not
mentioned in its answer to one of interrogatories and, as a result of such omission, plaintiff's answers to other 2
interrogatories did not reveal extent, if any, of publication of such documents. Rexnord, Inc. v Modern Handling
Systems, Inc. (1974, DC Del) 379 F Supp 1190, 183 USPQ 413.
In products liability case, defendant's offer to permit plaintiff to inspect drawings and supporting documents at office
of counsel if not sufficient answer to interrogatories; it is not plausible to assume that response that answer may or may
not be found in records, accompanied by offer to permit inspection, is sufficient under discovery rules. Clark v
General Motors Corp. (1975, DC Mass) 20 FR Serv 2d 679.
Although Rule 33(c) provides party responding to interrogatories with option to produce business records in certain
situations, respondent may not impose on interrogating party a mass of records as to which research is feasible only for
one familiar with records; accordingly, plaintiff which had answered interrogatories by referring to certain enclosures
would be required to answer such interrogatories completely and fully. United States v 58.16 Acres of Land (1975, ED
Ill) 66 FRD 570, 20 FR Serv 2d 1100.
In absence of specific objection to specific interrogatory answers, court would not find that defendant failed
adequately to identify appropriate documents where defendant's answers to plaintiff's interrogatories directed plaintiff to
specific files which purportedly contained documents requested notwithstanding that each file might contain anywhere
from a few to perhaps thousands of individual documents, and some of interrogatory answers referred to dozens of files;
nor would defendant be required to individually number each of some 318,000 documents in files, however court would
allow plaintiff to do such numbering. United States use of Schneider, Inc. v Rust Engineering Co. (1976, WD Pa) 72
FRD 195.
Plaintiff's motion to compel answers to interrogatories seeking detailed information about names and employment
histories of defendant's employees will be denied; defendant's offer to permit inspection of personnel records under Rule
33(c) is proper where burden of deriving answers from documents is substantially equal for both parties, and there is no
more easy method of discovery available to defendant than is available to plaintiff. Campbell v Van Hoffman Press,
Inc. (1977, WD Mo) 24 FR Serv 2d 413.
Defendants in employment discrimination action brought under Title VII and 42 USCS § 1981 must answer
interrogatory listing by race and/or national origin all persons who applied unsuccessfully for specified position during
certain period even though review of mass of records would consume between 1,250 and 2,500 man-hours and duty is
not discharged by extending to plaintiffs invitation to inspect and examine files in view of general aversion of Title VII
to imposition of procedural difficulties that would limit plaintiffs' access to court. McClendon v M. David Lowe
Personnel Services, Inc. (1977, SD Tex) 25 FR Serv 2d 466.
In action brought by Equal Employment Opportunity Commission alleging unlawful employment practices on part
of defendant employer, information sought by defendant in interrogatories was not business record as mentioned in Rule
33(c) where type of question asked by defendant was attempt by defendant to find out what case was all about, whether
plaintiff had action, what acts of alleged discrimination in employment allegedly occurred, and other facts necessary to
defendant to prepare proper defense. EEOC v Anchor Continental, Inc. (1977, DC SC) 74 FRD 523, 15 BNA FEP Cas
90, 23 FR Serv 2d 1526.
Inasmuch as defendant was California corporation, plaintiffs had elected to sue in Wisconsin, and volume of records
was substantial, it is not unreasonable to require plaintiffs to examine records in place where records are located, that is,
California. Mid-America Facilities, Inc. v Argonaut Ins. Co. (1978, ED Wis) 78 FRD 497, 25 FR Serv 2d 794.
Defendant in employment race and sex discrimination class action under Title VII and 42 USCS § 1981 is entitled
to discover from plaintiff and Equal Employment Opportunity Commission identities of employees allegedly
discriminated against by defendant and specific dates and acts of discrimination where plaintiffs intend to prove
discrimination not only by statistical evidence, but also by evidence of individual acts of discrimination; Rule 33(c)
reference to defendant's business records which contain requested information is not sufficient where defendant needs
more specific answers to adequately prepare its defense and where burden of deriving answers is substantially less for
plaintiffs. Local 194, Retail, Wholesale & Dep't Store Union v Standard Brands, Inc. (1979, ND Ill) 27 FR Serv 2d
588.
In job discrimination suit in which plaintiff seeks to prevent defendants from invoking Rule 33(c) in response to
questions seeking personnel records and statistical compilations from those records, defendant is properly ordered to
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USCS Fed Rules Civ Proc R 33
make available to plaintiff relevant records for inspection and copying and to provide plaintiff with individuals to locate
specific documents or files which respond to specific interrogatories and otherwise assist plaintiff in locating
information he seeks, but cost of copying these documents and making any necessary statistical evaluation of them is
properly born by plaintiff. Robinson v Lehman (1983, ED Pa) 33 BNA FEP Cas 710.
Plaintiff is entitled to award of reasonable costs and expenses from defendant resulting from defendant's abuse of
Rule 33(c), where defendant was negligent in unawareness of ability to sort documents by customer, as requested by
interrogatory by plaintiff, but instead sent plaintiff to out-of-state warehouse containing more than one million invoice
documents, unsorted by customer or product. American Rockwool, Inc. v Owens-Corning Fiberglas Corp. (1985, ED
NC) 109 FRD 263.
In personal injury action against manufacturer of drug where defendant responded to plaintiff's interrogatories by
invoking option provided in Rule 33(c) to produce documents containing information requested, court ruled that such
invocation was improper because defendant had replied that information, if any, responsive to plaintiff's interrogatory
was contained in certain documents and court stated that party invoking option must represent that party requesting
information will find it in records provided. Sabel v Mead Johnson & Co. (1986, DC Mass) 110 FRD 553.
Equal Employment Opportunity Commission's attempt to answer interrogatories by submitting documents submitted
to it by employers was insufficient since such documents are not business records of the EEOC. Hoffman v United
Telecommunications, Inc. (1987, DC Kan) 117 FRD 436, 43 CCH EPD P 37183.
Employment discrimination plaintiff's answers to third set of interrogatories fall far short of compliance with FRCP
33(c), where plaintiff answers request about all statements by others supporting her race discrimination claim by
arguing that statements made by defendant's employees are more easily obtainable from defendant's own records, as
already revealed in response to first set of interrogatories, because FRCP 33(c) applies only where answers to
interrogatories may be found in business records of party upon whom interrogatories have been served, and furthermore
requires more than broad statement that information is available from documents. Calhoun v Liberty Northwest Ins.
Corp. (1992, WD Wash) 789 F Supp 1540, 59 CCH EPD P 41716.
Patent plaintiff has met its obligation under FRCP 33(d), where it has either produced or identified all documents in
its citation files relating to prior art references with respect to patents-in-suit, because party may properly elect option to
produce documents under FRCP 33(d) and at same time withhold documents as attorney-client privileged. Ampex Corp.
v Mitsubishi Elec. Corp. (1996, DC Del) 937 F Supp 352, 40 USPQ2d 1533, 36 FR Serv 3d 707.