A Lawyer’s Letter Is Not A Substitute For Interrogatory Answers
A couple weeks ago, I wrote about how lawyers abuse “meet and confer” requirements to obstruct civil discovery. This time, let’s talk about lawyers obstructing discovery by responding to discovery interrogatories themselves, rather than by having their client answer.
It’s a common progression of events:
1. Lawyer A serves a bunch of interrogatories on Lawyer B.
2. Lawyer B responds with a bunch of boilerplate objections. (See my prior post for more.)
3. Lawyer A threatens to file a motion to compel.
4. Lawyer B “answers” some of the requests either:
a. by sending a letter that generally discusses discovery (rather than a formal discovery answer actually answering the specific interrogatories) or
b. by serving a formal discovery answers signed by the lawyer (rather than signed by the party).
Tellingly, small and mid-sized casualty insurance firms that litigate and try cases all day long rarely insult plaintiff’s counsel intelligence or the court’s time with such nonsense. I wish I could say the same of the big corporate law firms I’ve dealt with, but they seem to do this as a matter of routine, repeatedly sending vague letters about discovery that never answer the discovery requests. Often, they act insulted when I gently point out that their vague letters and emails mean far less to me than their client’s sworn answers.
It may seem pedantic to just quote the Rules at length, but I have come to believe that a significant percent of lawyers — including highly-paid litigators — either haven’t read the rule or don’t care about their contents.
Let’s start with interrogatories, because the answer is so simple. Federal Rule of Civil Procedure 33(b) is very clear:
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. …
(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.
The interrogatories must be answered by the party separately and fully under oath and must be signed by the person who makes the answers. There’s no exception allowing for letter responses for “lawyers who totally say they’re telling the truth” or “lawyers at a Vault 100 firm” or “lawyers who refer to their law school by its initials.”
Don’t take it from me, take it from Magistrate Judge Geraldine Brown in Villareal v. El Chile, Inc., 266 F.R.D. 207 (N.D. Ill. 2010):
Under Rule 33, answers to interrogatories must be verified and must be signed by the person answering the interrogatory, not only by the party’s attorney. Hindmon v. Natl.-Ben Franklin Life Ins. Corp., 677 F.2d 617, 619 (7th Cir. 1982) (observing that interrogatory answers signed by attorney and not party violated “the clear mandate of Federal Rule of Civil Procedure 33(a)”); accord Overton v. City of Harvey, 29 F. Supp. 2d 894, 901 (N.D. Ill. 1998) (striking as summary judgment exhibit plaintiff’s unverified answers to interrogatories signed only by attorney); McDougall v. Dunn, 468 F.2d 468, 472-73, 476 (4th Cir. 1972) (finding error in sustaining interrogatory responses signed under oath only by counsel); Fonville v. Dist. of Columbia, 230 F.R.D. 38, 45 (D.D.C. 2005) (finding paralegal’s signing of interrogatory answers “utterly improper” since interrogatories must be answered by party to whom they were served).
Requiring a party to sign interrogatory responses under oath serves the critical purpose of ensuring that the responding party attests to the truth of the responses. Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D. 463, 467 (M.D. Fla. 2008). An attorney’s communication, e-mail or otherwise, does not do that, even assuming, arguendo, that the attorney’s statements provide information responsive to the interrogatory.
In addition to providing information, interrogatory answers may be used at trial “to the extent allowed by the Federal Rules of Evidence.” Fed. R. Civ. P. 33(c). Pursuing information through interrogatories is “an efficient and cost-effective method of discovery and marshaling evidence for trial.” VICA Coal Co., Inc. v. Crosby, 212 F.R.D. 498, 505 (S.D.W. Va. 2003); see also Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008) (noting dual function of interrogatories and rejecting argument that party’s failure to sign interrogatory responses and supplemental responses is harmless). Substituting an attorney’s communication for the party’s sworn statement would undermine that important function and effectively convert the attorney into a witness in the matter. Saria v. Massachusetts Mut. Life Ins. Co., 228 F.R.D. 536, 538-39 (S.D.W. Va. 2005) (granting defendant’s motion to compel complete verified interrogatory responses and noting that since interrogatory responses may be used at trial they are “nothing short of testimony”). Defendants’ counsel’s e-mails, therefore, can not satisfy defendants’ obligations in responding to plaintiffs’ interrogatories.
Nothing more needs be said about interrogatories. Stay tuned for a post on requests for productions of documents.