Wake Forest Student, Faculty and Staff Web Pages



Interrogatories, in Thomas A. Mauet, PreTrial (6th ed. 2005).

* * *

b. Topics

Before drafting the interrogatories, ask yourself: What information do I want now so that I can use subsequent discovery methods to develop the information more fully? * * * [E]ven if you have received the initial disclosures * * * you should be sure that you always know or, if you don’t know, get the following information.

i. Identity of parties, agents, and employees

Frequently in commercial litigation, you may not know the proper formal names of parties, parent corporations, or subsidiaries; where they are incorporated or licensed to do business; or the type of legal entities they are or their relationships to other parties. You need to know this information for a variety of purposes, relating to jurisdictional and joinder issues, for instance. You will also need to learn the identity of all agents and employees, and their relationships to the party. Interrogatories are the best method for getting this information.

ii. Identity of witnesses

Almost every lawsuit will have witnesses to the events and transactions on which the claims are based. Interrogatories are a good method for obtaining the witnesses’ identities, locations, and relationships to the parties.

iii. Identity of documents and tangible things

Similarly, almost every lawsuit will have certain documents, records, and other tangible things on which the claims are based, or that are relevant to the claims. Interrogatories [may help in] identifying and locating these, for determining who has custody or control of them, and for determining if they are in paper or electronic form.

iv. Identity of experts, facts, and opinions

Under Rule 26(a)(2), the expert disclosure rule, the other parties must disclose the identity and written reports of their testifying experts. The reports must contain a “complete statement” of all the experts’ opinions, bases and supporting data for the opinions, and information about the experts’ professional backgrounds. * * *

Keep in mind, however, that Rule 26 only requires expert disclosures 90 days before the trial date, and the court under Rule 16 will probably have entered a pretrial order that controls when expert disclosures must be made. At this early stage in the litigation process, the parties may not

yet have selected the experts who will ultimately be the testifying experts at trial. If you seek this information through interrogatories, the response will frequently be “not yet known.” Nevertheless, many lawyers ask for expert disclosure early, because it makes an early record of the request. Keep in mind that Rule 26(e) requires that a party [“timely”] amend a discovery answer if the party learns it is incomplete or incorrect and the requesting party has not been provided with the additional or corrective information during the discovery process or in writing. Some lawyers, however, ask for expert information in a later interrogatory, after a substantial amount of discovery has been taken, the theory being that a useful answer is more likely to be received a that time.

v. Details and sequences of events and transactions

Interrogatories are a useful method for obtaining concrete facts underlying vague or generalized claims. For this reason they are particularly useful in the commercial litigation area where lawsuits are frequently based on a series of events and transactions spread out over time, but are not detailed in any way in the pleadings.

vi. Technical and statistical data

Interrogatories are a good method to identify and obtain technical and statistical data, such as financial statements, accounting information, sales data, and similar information.

vii. Damages information and insurance coverage

The plaintiff’s complaint will often contain only a general request for damages “in excess of $75,000,” the minimum jurisdictional amount in diversity cases. Damages interrogatories to the plaintiff are useful for drawing out the specific legal theories of recovery the plaintiff is asserting, the dollar amount claimed for each element of damages, and the basis for each claim.

Since it is vitally important for a plaintiff to determine the defendant’s ability to pay a judgment, a standard interrogatory should ask about insurance policies that may cover the event or transactions on which the lawsuit is based, and for the details of the coverage. * * * If the pleadings, such as a punitive damages claim, make the defendant’s financial condition relevant, this information should also be requested. Defendant, however, will usually object to any discovery of its financial condition or ask that such discovery be stayed until the court has heard and ruled on a summary judgment motion attacking the punitive damages claim. * * *

viii. Identity of persons who prepared answers and of sources used

Where interrogatories are served on a corporate party, they should ask for the identity of each person who participated in preparing the answers, and ask for the identity of the documents used to prepare each answer. This information will be important in deciding whom to depose and what documents to request.

ix. Positions on issues, opinions of fact, and contentions

Interrogatories that ask for “opinions,” “contentions relating to facts,” or the “application of law to facts” are usually proper. On the other hand, interrogatories that ask for matters of “pure law” are objectionable. The dividing line is unclear, and many discovery motions deal with this problem. Where a pleading is vague, however, a proper interrogatory can prove to be a useful request. For example, it is proper in a negligence action to ask what specific conduct plaintiff claims constituted the negligence, just as in a contract action it is proper to ask what conduct plaintiff claims constituted a breach. Of course, contention interrogatories also have the practical effect of forcing the opposing party to focus on its evidence and strategy.

The court has the power * * * to postpone answering such interrogatories. Accordingly, many lawyers avoid such requests in the initial interrogatories, since it may trigger objections and delay receiving answers to the more basic interrogatories.

Keep in mind that interrogatories, while important, are frequently overused. They are a “low yield” discovery method. Interrogatories take time to prepare and answer, and the answers limit the amount of information disclosed. The amount of information actually produced through interrogatories is frequently low. Therefore, focused interrogatories, which ask only for basic factual data, are usually more effective. Interrogatories should be used in a more selective and focused way: to target the “missing gaps” in the opposing party’s initial disclosures or to pin down the opposing party on specific facts that may be used at trial for impeachment if the party that signed the interrogatory testifies inconsistently at trial.

c. Drafting the interrogatories

The drafting lawyer’s principal task is to prepare a set of interrogatories that will successfully elicit the desired information. The questions must be drafted so as to force the answering party to respond to them squarely and to eliminate the possibility of evasive, though superficially responsive, answers. (Always ask yourself: If I received this interrogatory, could I avoid giving a meaningful answer because of the way the interrogatory is worded? If so, redraft the interrogatory.) Also, the questions must be organized sequentially to make sure that all desired topics are covered. * * * Finally, make sure you do not exceed or violate the requirement that interrogatories served on any party not exceed “25 . . . including all discrete subparts.”

* * *

Examples:

3. If you were treated by any physicians as a result of this occurrence, state:

a. the name and address of each such physician;

b. each physician’s areas of specialty;

c. the dates of each examination, consultation, or appointment; and

d. the amount of each physician’s bill.

4. If you were unable to work as a result of this occurrence, state:

a. the dates during which you were unable to work;

b. your employers during those dates;

c. the type of work you were unable to do; and

d. the amount of lost wages or income.

5. State any other losses or expenses you claim resulted from this occurrence, other than those already stated above.

6. During the past 10 years, have you suffered any other personal injuries? If so, state:

a. when, where, and how you were injured;

b. the nature and extent of the injuries;

c. the name and address of each medical facility where you were treated; and

d. each physician by whom you were treated for those injuries.

7. During the past 10 years, have you been hospitalized, treated, examined, or tested at any hospital, clinic, or physician’s office for any medical condition other than personal injuries? If so, state:

a. the name and address of each such medical facility and physician;

b. the dates such services were provided; and

c. the medical conditions involved.

* * *

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download