4 Easy Steps to Timing Contention Interrogatories

At what point in discovery are contention interrogatories acceptable? How are they used?  This topic was once discussed in the state court, what about federal court? Two local cases discuss them and their parameters. Cardoza v. Bloomin’ Brands, Inc. was a wage and hour case.  BBI sent an interrogatory to each plaintiff seeking “all facts supporting their minimum wage claims for each week Plaintiffs contend they were paid less than minimum wage and all facts supporting their overtime claim for each week they contend they did not receive overtime pay.”[1]  Seeking aside the “all facts” language that was likely objectionable, Plaintiffs argued they were unable to answer this interrogatory based upon the information presently available.

Rule 33(a)(2) provides “substantial discretion” to decide “ when a contention interrogatory must be answered, and expressly provides that the Court may order that interrogatories need not be answered until discovery has been completed or at some later time.”  Courts “tend to deny contention interrogatories filed before substantial discovery has taken place, but grant them if discovery is almost complete,” but “there is no outright prohibition on propounding contention interrogatories early on in the litigation.”

“Contention interrogatories are premature if a propounding party cannot present plausible grounds showing that early answers to contention questions will efficiently advance litigation, or if the [answering party] does not have adequate information to assert its position.”  When will a court require answers to contention interrogatories early in a case?  Do the answers contribute meaningfully to:

  1. clarifying the issues in the case;
  2. narrowing the scope of the dispute;
  3. setting up early settlement discussion; or
  4. exposing a substantial basis for a motion under Rule 11 or Rule 56.

Wide Voice, LLC v. Sprint Communs. Co., L.P. also addressed contention interrogatories.[2]  Wide Voice served seven interrogatories asking Sprint for “the factual basis for Sprint’s affirmative defenses.  Sprint objected to all seven interrogatories on the ground that they were premature contention interrogatories.”  The objection was overruled.  “Wide Voice’s contention interrogatories are not premature.  Discovery will close on August 12, 2016, and Sprint appears to have received enough discovery to provide a fairly detailed answer to the interrogatories.  The court thus distinguishes Cardoza and holds that Wide Voice’s contention interrogatories are not premature.”

With these factors in mind, I may serve contention interrogatories early in a case, fully expecting an objection.  While the objection may be appropriate at that moment, it does not relieve the answering party’s obligation to later supplement its answer to the interrogatory.

[1] No. 2:13-cv-01820, 2015 U.S. Dist. LEXIS 82015, 2015 WL 3875916 (D. Nev. June 22, 2015).  Full disclosure: I represent an entity related to BBI, but not in this case or related cases.
[2] No. 2:15-cv-1604, 2016 U.S. Dist. LEXIS 66667 (D. Nev. May 18, 2016).