Chapman Law Review
AN EXPENSE OUT OF CONTROL: RULE 33 INTERROGATORIES AFTER THE ADVENT OF INITIAL DISCLOSURES AND TWO PROPOSALS FOR CHANGE
Copyright © 2005 by Chapman Law Review; Amy Luria, John E. Clabby
Interrogatories exchanged under Federal Rule of Civil Procedure 33 drain litigation resources while providing few concomitant benefits to litigants. Despite this problem, there is no recent scholarly literature suggesting reform to this device. Other discovery devices, including initial disclosures and requests for admission, better serve parties as relatively fast and cheap exchanges of information in advance of trial. This Essay describes the wastes and benefits of Rule 33 interrogatories as parties use them in practice today. Then, this Essay makes and evaluates two proposals for change. In the first proposal, the Essay suggests creating mandatory, uniform interrogatories keyed to substantive areas of law, following a model that several states have already incorporated into their civil rules. In the second and alternative proposal, this Essay proposes eliminating Rule 33 interrogatories altogether, because most of the work that the Advisory Committee on Civil Rules first intended interrogatories to do is now better accomplished through other discovery devices.
In practice, Federal Rule of Civil Procedure 33 interrogatories exchange little substantive information between parties. Sending interrogatories costs a litigant more than that party earns in information. Often, filing interrogatories generates nothing but unresponsive, by-the-book objections or otherwise evasive answers from an opponent. The norms of practice encourage a lawyer to file interrogatories, even though the answers to those interrogatories would not help that lawyer’s client.
Interrogatories are the most abused discovery vehicle, and what is more problematic is that their cost generates little value. Attorneys ask questions drawn from a stock reserve and those questions return only objections, vague answers, and very little information. This is due in part to the ease with which one can generate interrogatories, as well as “the proliferation of machine-stored questions.” As a result, interrogatories are often “frustrating, costly, and ineffective for both parties.” The standard objections of “overly broad,” “vague,” and “unduly burdensome” provide no substantive content to the sender of the interrogatories. Compounding the problem, adversaries and the courts are normally reluctant to condemn the liberal objector. Courts want to stay out of discovery disputes except in the worst cases, and adversaries themselves are playing similar games with their own objections.
Put broadly, the problem with interrogatories is that lawyers believe, and the system reinforces, that the exchange and answer of interrogatories is a game. That a lawyer expects an objection causes the sender to wrangle over the form of a question and to hesitate over the proper term with which to define a thought. Historically, “practitioners have used interrogatories as a litigation tactic to harass and to overwhelm an opponent or to delay the resolution of a dispute.” In return, an entire body of literature explains how to avoid giving thorough and responsive answers to interrogatories.
At base, the problem with interrogatories is lawyer conduct. Lawyers must somehow be held accountable for their zealous but inefficient use of the device. Burdensome, overreaching, and frivolous questions — and boilerplate, bad-faith objections in return — cause delay instead of enlightenment. Any consideration of how to reform the interrogatory device must acknowledge the lack of incentives for lawyers to exchange and to request information from one another in good faith.
While some critics suggest that only severe sanctions for this stonewalling can prevent such discovery evasion, the structure of the rules and cooperative norms also play important roles. Reforming the structure of the interrogatory device, or isolating what is good about the device and transferring that to other devices more easily monitored, might structurally solve a problem without harsher sanctions or greater judicial involvement. Any change must attempt to decrease the role of gamesmanship and to increase the profitable exchange of pretrial information between the parties to a lawsuit. Any change should also seek to minimize judicial involvement and help to limit the cost to the litigants of pretrial exchanges of questions while maximizing their value. With these ends in mind, any amendment to Rule 33 should weigh the benefits of retaining the interrogatory device against its expense and efficiency in fairly exposing valuable information between adversaries.
Scholars have failed to address the root cause of the inefficiency of interrogatories. Practitioners have written volumes on how to “game” the interrogatory system. And many states have started to amend their rules of civil procedure to address this gaming, including experimenting with ideas such as uniform interrogatories. Yet, despite the prominence of the problem, scholars have failed to suggest reforming this device.
This Essay seeks to explore the problem, and makes two proposals for change. Part I explores what is useful about interrogatories, both as the device is conceived in theory and as the device is used in practice (where the benefits are much narrower) and should therefore be preserved. Specifically, one finds that interrogatories are useful in three areas: discovery of contentions, discovery of technical or statistical data, and discovery of knowledgeable persons. Such findings are important in evaluating the two proposals for change that follow, as we are then aware of what may be lost through amendment or elimination of Rule 33 interrogatories. The findings of Part I also allow us to evaluate how successful other discovery devices will be at replacing the work that interrogatories are intended to accomplish.
In Part II of the Essay, we describe and evaluate two proposals for change to the interrogatory device that we believe will decrease the role of gamesmanship and increase the profitable exchange of pretrial information between the parties to a lawsuit. The first proposal seeks a rehabilitation of Rule 33 to preserve what was intended as a meaningful pretrial exchange of information between parties. Proposal I suggests limiting interrogatories to certain standardized interrogatories, perhaps organized by substantive areas of the law, to which parties would be unable to object on grounds other than those of privilege. These form interrogatories would include contention interrogatories, technical or statistical data interrogatories, and knowledgeable person interrogatories. Failure to answer these interrogatories would result in sanctions. In forming and evaluating this proposal, we rely on the rules of civil procedure of a few states that have mandatory interrogatories, uniform interrogatories, and both.
The second proposal is more dramatic: the elimination of Rule 33 interrogatories altogether. The current Federal Rules, which already require certain initial disclosures under Rule 26(a), might benefit from the elimination of the Rule 33 device and a concomitant editing of other rules — pertaining to requests for admissions, initial disclosures, and pretrial discovery conferencing — to retain much of the best features of interrogatories. In analyzing this proposal, we discuss how other discovery devices, mainly initial disclosures under Rule 26 and requests for admission under Rule 36, are being used by parties today to perform the issue-narrowing functions that interrogatories were intended to perform.
Finally, we conclude with a summary of our findings and a suggestion to the Advisory Committee on Civil Rules (Committee) for how it might combine the two proposals. The federal discovery rules, including Rule 33, were intended to aid in the “just, speedy, and inexpensive determination of every action,” and the reformation or elimination of Rule 33 interrogatories might rehabilitate what is good about the historically “most abused discovery mechanism.”
II. FOR WHAT PURPOSES ARE INTERROGATORIES USEFUL?
Interrogatories are supposed to be cheap, fast, and binding on a party. “In theory, there could not be a simpler, more efficient, and less expensive discovery method than sending written questions to the opposing party and having him send back the sworn written answers.” Therefore, the current form of interrogatories helps lawyers when used efficiently. However, when attorneys spin their wheels to draft unobjectionable questions, and their adversary attorneys retort by spinning their wheels to craft objections, seldom does information change hands. Any cost, then, to a useless device is too high a cost.
But interrogatories, in theory, should lead to the inexpensive exchange of information between the parties. An exchange of information early in litigation should lead to a faster resolution of the dispute and might even encourage settlement. Substantive answers to interrogatories should also lead to more targeted discovery requests, which in turn might lead to a faster resolution of the dispute. If the device worked more efficiently, then it should help decrease the cost of litigation and increase its speed.
The question then becomes what about interrogatories is useful and should therefore be preserved. Interrogatories serve a useful function in three areas: “discovery of contentions, discovery of technical or statistical data, and discovery of knowledgeable persons.” At base, interrogatories are useful for the discovery of contentions and the discovery of certain fact lists. For these areas, “there probably is no better way to get information.”
Contention interrogatories are inquiries that require the identification of positions on issues in the case. Contention interrogatories “seek to clarify the basis for or scope of an adversary’s legal claims. The general view is that contention interrogatories are a perfectly permissible form of discovery, to which a response ordinarily would be required.” An example of a contention interrogatory is: “Do you contend that plaintiff was contributorily negligent regarding the accident on August 6, 1998?”
The contention interrogatory is valuable for a few reasons. First, it forces the adversary to reveal her basis for positions taken in the pleadings. Second, it is generally immune from evasion because the responding party cannot claim ignorance of the answer when the question is based on the responding party’s claims. In fact, if in a negligence case, one’s adversary responds, “I do not know at this time,” she is “invit[ing] a motion for summary judgment or a motion to strike under Rule 11.” Third, contention interrogatories are often “invaluable in narrowing the issues, laying foundations for motions, and preparing a thorough trial defense.”
In addition, interrogatories target technical and statistical data better than do other forms of discovery, in part because depositions and document requests cannot readily expose this information. Technical and statistical interrogatories force opposing counsel to ask the client to prepare the answer, as it is unlikely that the attorney will have all of the necessary information at his or her fingertips. Moreover, the only evasion of such an interrogatory appears to be limited to Rule 33(d), which allows one to avoid answering when the answer may be derived from reviewing business records, and when the burden of deriving such information is the same for both the questioner and the answerer.
The final area in which interrogatories are useful is in the discovery of knowledgeable persons. An example of such an interrogatory reads: “Please state the name and address of each person who has knowledge of a particular subject matter.” One would think that the following two objections to such an interrogatory would be quite common: (1) the interrogatory is overbroad; and (2) the attorney cannot speculate as to the knowledge. However, Rule 26 appears to preclude the latter objection because it assumes that a party answering will in good faith disclose the persons the respondent knows or ought to know has facts relevant to the particular subject matter. However, it appears likely that there will always be an “overbroad” objection.
Despite the possible “overbroad” objection to the interrogatory, this particular type of interrogatory adds value to the propounding party’s case when it is answered. First, “the answer will be the next best thing to the adversary’s witness list.” Second, “the answer will guide [one] in framing a deposition program” in that it may help narrow “the cast of characters.” Lastly, the answers to these interrogatories “will make document production more meaningful” in that the answers will help an attorney request documents by reference to named individuals, as well as alert him or her to names to search for in the produced documents.
Essentially, interrogatories work when lawyers ask for specific lists, such as everyone in a company who has information about X. What this all means is that contention interrogatories and those interrogatories that seek “lists” as answers are generally the most useful in discovering necessary information. As such, the usefulness of these types of interrogatories must be retained when crafting any type of rule to increase the effectiveness of the discovery process.
III. PROPOSALS FOR CHANGE
A. Proposal I: Create Standardized Interrogatories Based on Subject Matter
The first proposal would amend Rule 33 to require answers to certain standardized interrogatories. These non-objectionable interrogatories would be categorized according to substantive areas of the law, such as antitrust or patent cases. This proposal addresses the gamesmanship of the current interrogatory practice by stamping certain questions as non-objectionable.
This amendment to Rule 33 would sacrifice the current breadth of interrogatories in favor of requiring answers to certain interrogatories. The proposal would add several forms to Rule 33, each designed with a specific practice area in mind. These forms would list a handful of interrogatory questions to which objections would be impossible. A party would face sanctions immediately upon failure to answer these questions.
This proposal suggests that the 1993 amendments to Rule 33, limiting the number of interrogatories that each party may file, changed the strategic use of interrogatories, but did not eliminate the game playing. That is, historically, parties abused the device by burying an opponent in interrogatories; but today, parties carefully craft the few interrogatories they send and spend an equal time crafting objections. So while the 1993 amendments to Rule 33 addressed both overuse and stonewalling, overuse is more easily detected and solved than is stonewalling. Prior to the 1993 amendments, many commentators cited interrogatories as the most abused form of discovery. Because the 1993 amendments did little to address abuse, interrogatories remain a serious drain on client resources with little return on value. Eliminating the possibility for objection, at least for a few categories of substantive law, would eliminate the objection game-playing altogether.
1. Uniform Interrogatories in the State Courts
Included in these standardized interrogatories might be contention interrogatories, technical or statistical interrogatories, and knowledgeable person interrogatories. Because these interrogatories would be tailored to specific practice areas — the interrogatories for an antitrust suit would differ from the interrogatories for an employment discrimination suit — the adoption of the forms would be highly politicized. However, several states have in fact adopted uniform interrogatories, and these proposals operate in the states with some success. In writing the federal forms, the Committee should borrow the design of those states that have adopted uniform interrogatories, triggered by certain substantive claims.
For example, Connecticut limits the interrogatories one can use in personal injury actions arising from the operation or ownership of a motor vehicle, or the ownership, maintenance, or control of real property, to those interrogatories set forth in specified forms. As such, it appears that if a party wishes to serve interrogatories, she can only use the interrogatories set forth in the forms. However, if a party does not wish to serve certain interrogatories listed on the forms, or does not wish to serve any interrogatories, she is not required to do so.
In contrast, in New Jersey, personal injury claims have mandatory uniform interrogatories. These interrogatories are mandatory in that upon service of the complaint and defendant’s answer to the complaint, the uniform interrogatories are deemed automatically served; both sides must serve the uniform interrogatories. Moreover, the responding party must answer the uniform interrogatories within a specified number of days.
New Jersey Rule of Court 4:17-1(b), sets out when a party must use uniform interrogatories.
In all actions seeking recovery for property damage to automobiles and in all personal injury cases other than wrongful death, toxic torts, cases involving issues of professional malpractice other than medical malpractice, and those products liability cases either involving pharmaceuticals or giving rise to a toxic tort claim, the parties shall be limited to the interrogatories prescribed by Forms A, B, and C of Appendix II, as appropriate ….
New Jersey and Connecticut are not alone in their creation of uniform interrogatories. There is “[a]n accelerating trend in state civil procedure rules” toward the use of court-created rather than lawyer-initiated discovery. For example, California provides uniform interrogatories merely as a guide, allowing for other interrogatories and permitting the responding party its full catalog of objections.
Arizona also has uniform interrogatories, for specific causes of action, which serve as a guide. “In Arizona, there are twenty-two standard uniform interrogatories for personal injury actions and twenty-three standard uniform interrogatories for contract actions.” Although in Arizona an attorney does not have to use these uniform interrogatories, Arizona’s Special Bar Committee to Study Civil Litigation Abuses proposed the creation of uniform interrogatories to address the same problems presently facing the federal system — namely discovery abuse that leads to inefficiency. The Arizona Supreme Court’s Comment in accepting Rule 33.1 explained that the creation of uniform interrogatories “was part of a comprehensive set of rule revisions proposed by the Special Bar Committee to Study Civil Litigation Abuse, Cost and Delay, which was specifically charged … with the task of proposing rules to reduce discovery abuse and to make the judicial system in Arizona more efficient, expeditious, and accessible to the people.” As such, it appears that Arizona attempted to address the problem of abuse, rather than overuse, of its state’s interrogatories.
The state models will help the Committee navigate the political waters of deciding which interrogatories in each substantive area of the law to make non-objectionable, at least as far as federal and state claims overlap.
The state models will also help the Committee decide if the federal uniform interrogatories (1) will be mandatory to ask; (2) will be mandatory to answer; and (3) will be exclusive (the only interrogatories a party may send). The answer to the first question should be “no,” in order to preserve the traditional optional nature of sending interrogatories. The answer to the second question must be “yes,” in order to eliminate the game playing in interrogatory battles, and because the questions have already been screened so as to be non-objectionable.
Answering the third question is more challenging. Amendments to Rule 33 should not permit the parties to set forth any additional interrogatories beyond the uniform interrogatories provided for in the amended Rule 33, without leave of court. If Rule 33 allowed for such additional interrogatories, the room for abuse by attorneys that currently exists would remain. As such, Rule 33 should provide for additional interrogatories only with leave of the court.
2. Possible Objections to the Proposal
The above discussion points to one specific problem with this proposed model: from what sources should the Committee draw non-objectionable interrogatories for each form? Two more objections to uniform interrogatories at the federal level present themselves. First, compound fields, such as environmental law, may not be amenable to uniform interrogatories that are mandatory to answer. Second, these forms breach the trans-substantivity to which the Rules aspire.
First, federal practice does not reduce itself to discrete areas of the law. For example, in an environmental justice suit, claims may include Equal Protection Clause violations, Fair Housing Act violations, and private and public nuisance claims. At first glance, perhaps Rule 33 uniform interrogatories should not be created for these compound fields. However, in such a compound claim, perhaps a litigant could trigger multiple forms depending on the nature of the complaint. There is a more important question, though, for the Committee to answer: what would happen if a litigant triggered none of the forms? Would that litigant be denied the interrogatory device, or would the forms only modify Rule 33 when that substantive area of the law is part of the complaint?
A preliminary answer denies any interrogatories in this case, without leave of court. If the Committee has yet to approve forms that capture the complaint, the parties will waste their time, as under the current system, designing and evading crafted interrogatories. The Rule should deny the device in this instance.
Next, what interrogatories are available when the case presents a complaint combining a claim that will trigger a form with one that will not? One sensible answer would be to deny the litigant the free choice of which interrogatories to send. This is because a complaint containing one claim that would trigger a form and one that would not fit under a form might otherwise allow a litigant to sneak in interrogatories related to the form-controlled claim by adding interrogatories related to the other claim.
The second objection to this proposal is the lack of trans-substantivity created by dividing the forms based on the substantive law raised in the complaint. At this time, it appears the Federal Rules of Civil Procedure make few, if any, distinctions based upon the area of law raised in the complaint. Many Federal Rules “make no policy choice, … thereby insulating the Rules from effective challenges under the statute delegating rulemaking power to the Supreme Court ….” However, the Federal Rules “confer discretion on the trial judge[s],” in actuality making Federal Rules “trans-substantive only in the most trivial sense.”
Some scholars contend that if rulemakers consider Rules aimed at specific kinds of litigation, “the resulting rules would favor the interests of those groups that were best able to influence the rulemaking process.” However, other commentators note that “maintaining a facial appearance of trans-substantivity does not remove politics from the rulemaking process.” Rather, considering substance-specific Rules allows for closer consideration of the possible effects of the proposed Rule on interested groups. As such, substance-specific interrogatories are not inherently problematic.
Amending Rule 33 in this way would not solve all of the problems associated with pretrial written exchanges between parties, but this proposed amendment, which narrows the scope of Rule 33 by requiring answers to approved questions based on the substantive area of the law at issue, might add utility to the device.
B. Proposal II: Eliminate Rule 33 Interrogatories
Perhaps the problems that interrogatories cause outweigh the benefits. The adoption of required disclosures in Rule 26 ensures that information is actually exchanged between parties; this is precisely what interrogatories were originally designed to achieve. Modifying the mandatory disclosure rule, and encouraging the use of requests for admission, might replace the bulk of the function of interrogatories. Considering the benefits of interrogatories after taking into account other discovery devices might tip the balance in favor of eliminating Rule 33 altogether.
Thus, any reform to the interrogatory device benefits from viewing the device as useful only after the exhaustion of requests for admissions, of initial disclosures, and of pretrial and discovery conferencing. If what remains is too slight to justify the expense of the device, or if amendments to the other devices can reduce to nil what value remains in interrogatories, then the device should be abolished.
1. Initial Disclosures
Much of the benefit that Rule 33 interrogatories traditionally brought to litigation is now provided through other means. Adding a certain provision to Rule 26(a) could preserve those functions unique to Rule 33. If the Committee made these changes, Rule 33 could be eliminated.
Mandatory initial disclosures were “designed to accelerate the exchange of basic information about the case and to eliminate the paper work involved in requesting such information.” Rule 26 requires that each party within fourteen days after the Rule 26(f) conference disclose the identity of any person likely to have “discoverable information” about the case, disclose a copy or description of relevant documents, disclose computations related to any category of damages claimed, and disclose any insurance agreement likely to be involved in the case.
Despite debate regarding the effectiveness of mandatory initial disclosures, an empirical study conducted by the Federal Judicial Center found that “[i]nitial disclosure is being widely used and is apparently working as intended, increasing fairness and reducing costs and delays far more often than decreasing fairness or increasing costs and delays.” As such, in contrast to interrogatories, mandatory initial disclosures increase the efficiency of litigation.
Initial disclosures answer basic questions of fact, and this instrument eliminates much of the work for which parties had historically drafted interrogatories. “[T]he ‘court-ordered’ interrogatories of Rule 26(a)(1) address one of the historical functions of Rule 33 interrogatories — to explore broadly the source of evidence available to the opposing party by obtaining the identity of witnesses and the existence of documents.”
Rule 26(a) may need to be altered to bear the brunt of the elimination of interrogatories. This must be done carefully, however, to avoid losing the benefits of interrogatories. In order to abandon interrogatories altogether, the Committee should amend Rule 26(a)(1) specifically to allow for the standard exchange of certain lists between parties.
The elimination of Rule 33 interrogatories would, for example, disallow a party from obtaining information regarding all knowledgeable persons. As noted above, Rule 26(a)(1)(A) requires a party automatically to disclose the identity of persons likely to have information relevant to disputed facts alleged with particularity in the pleadings. However, “whether a disputed fact is ‘alleged with particularity’ is not always clear. Should [an] adversary conclude that [a] complaint alleges facts generally, rather than with particularity,” she will not provide the names of all important witnesses. Therefore, unlike Rule 33 interrogatories, Rule 26(a)(1)(A) does not ensure that an adversary will be able to find out the names of all knowledgeable persons. If Rule 33 interrogatories are eliminated, then the Committee should alter Rule 26(a)(1)(A) to require the discovery of any person who has knowledge of any particular discoverable matter, regardless of whether the disputed fact is alleged with particularity.
Also, the Committee should amend Rule 26(a) to require a party to release a summary of technical or statistical data, if that data is of central concern to the litigation, a disclosure for which at present the Rule does not provide. This technical or statistical data, set forth in list form, is essential because document requests, such as those required by Rule 26(b)(1), cannot readily reveal the needed information. The Rule as it stands is inadequate for this proposition. Rule 26(a)(1)(B) requires the disclosure of “a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” The disclosure of documents, although requiring the disclosure of data compilations, significantly differs from the disclosure of technical and statistical data.
Lastly, the Committee should alter Rule 26(a) to preserve the utility of contention interrogatories. Contention interrogatories protect parties by eliminating:
the potential prejudice or surprise to the party responding to the fraud claim [for example] that might arise from the insertion at some point in the litigation of unexpected and unpleaded allegations of misrepresentations, and also saves the courts and litigants time spent on litigating the adequacy of the … pleading of fraud and the … attempt to replead the claim with the requisite particularity.
At this time, however, it is unclear how to obtain the invaluable information from contention interrogatories through Rule 26(a) were Rule 33 eliminated. Conceived in theory, losing the contention interrogatory is a major loss to a party who wants to learn the meat behind their opponents’ pleadings. It should be kept in mind, though, that the evasive interrogatory exchange as it now exists rarely exchanges this information anyway; losing the current system of contention interrogatories is not really losing much.
2. Other Discovery Devices
Rule 26 is not the only rule that overlaps with much of what is useful about today’s Rule 33. Increasing the use of requests for admissions might do much of the work that interrogatories could theoretically do, and make up for the resulting elimination of Rule 33’s current breadth. Pretrial conferences provide for an additional exchange of meaningful information, albeit at a time further along in the case than when interrogatories would normally be sent.
Requests for admissions are similar to interrogatories in that both allow one party to discover more about how the adversary plans to act at trial and how the adversary views its own case. While the two methods seek the information in different ways — asking for a list of previously unknown parties versus a confirmation of suspected parties — the request for admission mimics the best of what interrogatories have to offer a litigant during early pretrial. Also, both interrogatories and admissions may be served on parties only.
However, there is no limit in Rule 36 comparable to that in Rule 33 as to how many requests for admission a party may file, so an increased reliance on requests for admission might resurrect some of the problems that the cap on the number of interrogatories solved. Unlike interrogatories, though, courts in complex litigation do not view successive sets of requests for admission as burdensome or oppressive; admissions practice presents different problems than does interrogatories practice. We also note that, “answers to interrogatories … are not admissions, and a party can supplement or amend its answers” to interrogatories, so parties answering admissions are more careful to avoid traps.
Pretrial conferences under Rule 16 and discovery conferences under Rule 26(f) might also carry much of the weight that the drafters of Rule 33 intended that Rule to cover. Both meetings contemplate another set of disclosures, at different distances from trial. Rule 26(f)’s encouragement of settlement discussions might help replace what benefit contention interrogatories brought to the parties under Rule 33. As for timing, parties most often use interrogatories well in advance of trial, before the deposition phase, and reserve the ability to propound more interrogatories after objections or inadequate responses. This proposed revision to the Federal Rules — eliminating Rule 33 interrogatories and adding certain provisions to Rule 26(a) — would not therefore disrupt the timing of discovery exchange. That is, requests for admissions may be made at any time, like interrogatories; Rule 26(f) contemplates a conference early on in discovery, and Rule 16 contemplates a conference very near to trial. Because interrogatories are most often used early in litigation, and then supplemented as needed later, these alternate devices cover the span of time in which interrogatories are useful. The robustness of the exchange of information at Rule 16 and Rule 26(f) conferences, though, is a question for further study.
3. Possible Objections to the Proposal
The expanded use of Rule 26 requests for admission and of pretrial and discovery conferences might not replace all of the work that interrogatories do or should do. Requests for admission, for example, require phrasing similar to that of a cross-examination at trial; a request for admission requires that the proponent “have some knowledge of the genuineness of the matter requested.” Interrogatories, on the other hand, allow for narrative answers, and do not require the sender to have certain knowledge of the opponent.
The requests for admission device does not perfectly replace the interrogatory, at least not as the interrogatory is conceived in theory. However, the request for admission device in practice today serves the function the drafters intended interrogatories to serve. Requests for admission are a less burdensome discovery device and courts have had fewer problems with them than with the interrogatory exchange. Because requests for admission do most, though not all of what interrogatories were intended to accomplish, and because interrogatories actually accomplish very little, there is little risk in eliminating interrogatories. Consider also the great expense that interrogatories mean for parties as compared to their utility. The expanded use of pretrial conferences, considered here particularly for the conferences’ ability to narrow issues for trial, overlaps with much of what interrogatories might have done, as conceived in Rule 33. Finally, because interrogatories in practice exchange very little substantive information, interrogatories are failing to live up to their expectation and theoretical utility. If the device does not work, if it costs a great deal, and if other discovery devices better accomplish what interrogatories were intended to accomplish, then there is little reason to maintain the device.
Any proposal for change to Rule 33 needs to be sensitive to what, if anything, interrogatories can accomplish under the current Rules, taking into account the contribution of initial disclosures. While both of the above proposals would eliminate the objections that automatically fly when parties exchange interrogatories, neither can entirely replace interrogatories because neither allows specific and searching questions as to the other parties’ contentions. The Committee should consider whether keeping the opportunity for parties to exchange questions regarding contentions is worth the inefficiency and expense of the interrogatory device, particularly when even contention interrogatories rarely work as the sender intends them to work. After all, as the discussion of the second proposal above shows, existing discovery devices, including requests for admissions, initial disclosures, and discovery and pretrial conferences, can accomplish much of the positive work of interrogatories, such as narrowing the issues that are to be tried. In contrast, the first proposal shows great promise if the Committee could draft uniform questions for certain areas of the law. The proposal should also focus on contentions. The Rules should combine both proposals, keeping the interrogatory device only as far as it allows non-objectionable contention interrogatories in certain areas of the law, and expanding initial disclosures to address whom within the client’s reach is a person most knowledgeable.
The authors thank William H. Hyatt, Kathryn Tagliareni, and Helen Tuttle of Kirkpatrick & Lockhart, Nicholson Graham LLP, Newark, New Jersey, for helping move this idea from practice into theory. Professor Geoffrey C. Hazard, Jr., and the Honorable Anthony Scirica, Chief Judge of the United States Court of Appeals for the Third Circuit provided guidance and criticism without which this Essay would not be possible. Thank you also to Professor Gideon Parchomovsky for his professional wisdom.
1. State: (a) the full name and residence address of each defendant; (b) if a corporation, the exact corporate name; and (c) if a partnership, the exact partnership name and the full name and residence address of each partner.
3. If you intend to set up or plead or have set up or pleaded negligence or any other separate defense as to the plaintiff or if you have or intend to set up a counterclaim or third-party action, (a) state the facts upon which you intend to predicate such defenses, counterclaim or third-party action; and (b) identify a copy of every document relating to such facts.
N.J. CT. R. 4:17-1, app. II.