Limiting Aligned Parties’ Interrogatories

In a multi-party case, does each party get its own allotment of interrogatories?  Rule 33(a) states “any party may serve upon any other party written interrogatories, not exceeding 25 in number including all discrete subparts, to be answered by the party served ….”  While not expressly addressing the question, reading the language literally may infer that each party gets a separate allotment.[1]

However, this interpretation has been repeatedly criticized.  In Zito v. Leasecomm Corp. a group of defendants jointly served a single set of 169 interrogatories and argued this did not exceed the 25 interrogatory limit because there were 11 defendants.[2]  But the court noted “[b]y the same reasoning, the plaintiffs would be entitled to propound more than 5,000 interrogatories.”[3]  This literal reading was rejected, as a practice treatise suggested.

The limitation on number of depositions . . . speaks in terms of ‘sides’ rather than parties. Because it frequently happens that a number of parties on the same side are represented by a single attorney and in that sense act in unison, this concept might be attractive in the interrogatory setting as well. In instances of legally related parties such as a parent corporation and its subsidiary, this could be particularly attractive. But the basic problem is more widespread. Consider, for example, a situation in which ten people injured in a bus crash sue the bus company in a single suit represented by the same lawyer. Should they be considered one party or ten for purposes of the interrogatory limitation? The best result would seem to be to recognize that in some instances nominally separate parties should be considered one party for purposes of the 25-interrogatory limitation.[4]

In Gucci Am., Inc. v. Exclusive Imps. Int’l defendants argued “they are entitled to serve 150 interrogatories because there are six defendants in this action.”[5]  The court rejected that argument because “where, as here, the parties are acting in unison and are represented by the same counsel, they may be treated as one party for purposes of the interrogatory limits.”[6] 

Woodmen of the World Life Ins. Soc’y v. U.S. Bank Nat’l Ass’n, treated three defendants as one party for purposes of the interrogatory limit where “ (1) the three corporate defendants are legally related parent and subsidiary corporations that are represented by the same counsel, (2) the three defendants have behaved in concert and acted as a single entity throughout discovery….”[7]

The limitation was also imposed in Fluid Equip. Int’l, Ltd. v. Reddy-Buffaloes Pump, Inc.

Defendants have consistently litigated this case as a single unit. They are represented by the same counsel, and they have jointly filed their notices, discovery requests, and motions (including the instant motion). Courts have repeatedly rejected such collective parties’ arguments that each member of the collective is entitled to the full allotment of the number of interrogatories allowed by Federal Rule of Civil Procedure 33 or the number of requests for production allowed by Federal Rule of Civil Procedure 34.[8] 

Even legal commentators have agreed that a literal reading is improper.  “If you represent several parties aligned in interest against a single opponent (e.g., Husband and Wife suing on a promissory note payable to them jointly), some judges may issue a protective order barring separate sets of interrogatories on behalf of each client as an evasion of the 35-limit.”[9]

[1] See St. Paul Fire and Marine Insurance Co. v. Birch, Stewart, Kolasch & Birch, LLP, 217 F.R.D. 288, 289 (D. Mass. 2003).

[2] 233 F.R.D. 395 (S.D.N.Y. 2006).

[3] Id.

[4] Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168.1 at 261 (2d ed. 1994).

[5] 99 Civ. 11490, 2002 U.S. Dist. LEXIS 14837 (S.D.N.Y. Aug. 12, 2002)

[6] Id. (citing Wright & Miller, 8A Fed. Prac. & Proc. Civ. 2d § 2168.1 (2002).

[7] No. 8:09-cv-407, 2012 U.S. Dist. LEXIS 63597 (D. Neb. May 7, 2012).

[8] No. 2:15-cv-74, 2016 U.S. Dist. LEXIS 89313 (S.D. Ga. July 11, 2016); Allen v. Sch. Bd. for Santa Rosa Cty., No. 3:10-cv-142, 2011 U.S. Dist. LEXIS 160349 (N.D. Fla. May 12, 2011) (concluding the “defendants may not, at this stage of the conflict, now decamp into three regiments, in order to gain some advantage in the skirmish lawyers call discovery.”); McCarthy v. Paine Webber Group, Inc., 168 F. R. D. 448 ( D. Conn. 1996).

[9] Weil & Brown, Cal. Practice Guide: Civil Procedures Before Trial § 8:938, p. 11-12 (The Rutter Group 2016).