Drafting Interrogatories
In addition to asking witnesses questions at a live deposition, litigants can also demand that adversaries answer written questions, called interrogatories. This sounded duplicative of depositions to me at first, but interrogatories play a distinct and important role in commercial disputes.
Why should you continue to read this post about interrogatories?
You had exciting evening plans, but they just got canceled
You’re a law student in evidence class and you want to know what the professor is talking about
You are a method actor who is playing a litigator in a movie and you want to immerse yourself in the role
Interrogatories Are Useful for Detailed Questions and to Narrow Legal Issues
Interrogatories are useful for when a party has a question and it is unlikely that a deponent may know the answer from memory. For example, if a party wants to know the exact number of employees a company had on a specific date, a deposition witness may not know that number offhand. Similarly, if a party wants to know the names of each of those employees, a deposition witness may not be able to list each of them from memory.
This is where interrogatories may be useful. An attorney can serve them on an adversary and the adversary can research the answer and then provide it in writing.
Interrogatories may also be useful to define what an adversary’s claims or defenses are. To that end, a party may ask an opponent to identify each fact that supports its claims or each instance of misconduct that it alleges. Although a party may be able to ask the same questions to a party at a deposition, an interrogatory is more likely to get a useful response and less likely to get an “I don’t know offhand” or some other incomplete answer.
Interrogatories Need to Be Written Carefully
Unlike deposition testimony, which a witness provides in her own voice, interrogatory answers are likely to be written by lawyers. Accordingly, a lawyer drafting interrogatories needs to draft them carefully so that a clever lawyer does not evade the question because it was written imprecisely.
I found some examples of interrogatories and interrogatory answers on the internet. One was from the Federal Trade Commission and the other was from the National Immigrant Justice Center.
These examples contain a type of question that I believe is vague. One asks “Describe in detail the product market alleged in paragraph 16 of the Complaint…” The other asks the recipient to “Identify and describe the role of every individual involved in the…”
I’m not sure what “describe” means in this context. Surely it does not mean adjectives such as “tall” or “solid.” And so a clever lawyer may just object to the question or provide unhelpful information that nevertheless technically responds to the question. Taking the time to ask precise questions avoids this issue, especially since interrogatories do not allow follow-up questions like attorneys may pose at depositions.
I believe the above questions may have been better posed as follows:
For the first interrogatory:
Identify the geographic locations for the product market alleged in paragraph 16 of the Complaint
Identify each customer you directly or indirectly solicited to purchase the product
Identify any terms you used to describe potential purchasers of the product
For the second:
Identify and state the job responsibilities of every individual involved in the…
Formal Rules May Apply to Interrogatories
Some rules apply to interrogatories that do not apply to depositions.
First, in federal litigation, Federal Rule of Civil Procedure 33 states that parties can only serve interrogatories on other parties, but not third-party witnesses.
Parties may not be able to ask unlimited questions by interrogatory. For example, the same federal rule limits litigants in federal court to 25 questions each.
In New York, CPLR 3130 requires litigants in wrongful death cases to choose between deposing a party and serving interrogatories unless they get court permission.
And in one federal court in New York, Local Rule 33.3 limits interrogatories only to “to those seeking names of witnesses with knowledge of information relevant to the subject matter of the action, the computation of each category of damage alleged, and the existence, custodian, location and general description of relevant documents” unless the court permits additional questions or posing additional questions is a “more practical” means of disclosure than producing documents.
Because of rules like these, parties need to be careful in deciding which questions are appropriate for interrogatories and which are better answered through other kinds of discovery.