Rule 33.Interrogatories to Parties

examination of the discovery papers, but also to the responding counsel himself in drafting and revising his responses to interrogatories.

Advisory Committee’s Note — October 1, 1970

The mechanics of the operation of Rule 33 are substantially revised for the purpose of reducing the need of court intervention. Two of the changes made by the federal amendments, namely, the enlargement to 30 days of the period for answers or objections to interrogatories, and the elimination of any requirement for leave of court for serving interrogatories, were anticipated by a December 31, 1967, amendment of M.R.C.P. 33. Now following the lead of the federal amendments as actually promulgated, the following additional improvements are made: (1) A defendant is in no event required to serve answers or objections to interrogatories in less than 45 clays after service of the summons and complaint upon him. (2) If objections to interrogatories are served, the burden is on the interrogating party to move under Rule 37(a) for a court order to compel answers, in the course of which the court will pass on the objections. This works a change in the burden of going forward since existing Rule 33 requires a party serving written objections to serve therewith “a notice of hearing the objections at the earliest practicable time”. Changing the burden of going forward will test the seriousness of the interrogating party in propounding the objected-to interrogatories and will in many instances avoid the court hearing which is required as a matter of course under the existing rule. A change in the burden of going forward does not, however, alter the obligation of’ an objecting party to justify his objections if the propounding party files a motion.

Rule 33(a) is also amended to permit the service of interrogatories upon any other party. The existing restriction to “adverse” parties is eliminated. The highly technical distinctions that have been drawn in the federal cases interpreting the existing rule are thereby avoided. See Field, McKusick and Wroth § 33.2.

Maine Rule 33(a) continues to differ from F.R. 33(a) in that the Maine Rule puts a limit upon the use of interrogatories. Except by court order for good cause shown, a party may not serve more than one set of interrogatories upon any other party, nor may the number of interrogatories exceed 30 in number.

Rule 33(b) in its second paragraph resolves a question on which there have been conflicting decisions in the federal courts, namely, whether and to what extent interrogatories are limited to matters “of fact” or may elicit opinions, contentions and legal conclusions. See Field, McKusick and Wroth § 26.18. Rule 33(b) declares that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates either to fact or to the application of law to fact. The only type of interrogatories that are objectionable are those that involve issues of “pure law”, that is, legal issues unrelated to the facts of the case.

Under certain circumstances Rule 33(c) permits the interrogated party the option of producing voluminous business records, in lieu of answering an interrogatory. Thus, the burden of research and computations may be placed on the party who seeks the information and presumably expects to benefit, therefrom. The option is available only if the burden of deriving or ascertaining the answer from the records is substantially the same for both sides.

Advisory Committee’s Note — December 31, 1967

In 1967 substantial revision and rearrangement of the discovery rules (26 through 37) of the Federal Rules of Civil Procedure are under consideration. While the Advisory Committee, believing as it does that maintenance of substantial uniformity with the Federal Rules is a desirable goal, does not intend any thoroughgoing revision of the Maine discovery rules until the current federal proposals are finally acted upon, change at once in certain time periods for interrogatories to parties under Rule 33 seems desirable.

In the first place, both the 10-day period for objecting to interrogatories and the 15-day period for answering are extended to 30 days. Experience has shown that the shorter periods previously prescribed were often inadequate. The short 10-day period for objecting to interrogatories has tended to encourage cautious attorneys routinely to file time-consuming objections.

The lengthening of the period for objecting or answering removes the original reason for not permitting, except with leave of court, the plaintiff to serve interrogatories for 20 days after commencement of the action. Since the defendant will be likely to consult a lawyer in order to answer the complaint

within 20 days after service upon him, it is no burden in the run of cases for him also to answer (or object to) interrogatories within 30 days after service of the complaint. Thus, the amendment removes the previous restriction upon the time when the plaintiff might serve interrogatories.

Reporter’s Notes — December 1, 1959

This rule is based upon Federal Rule 33, but the limitation to a single set of interrogatories not more than 30 in number unless the court otherwise orders is not in the federal rule. It is taken from a Massachusetts statute enacted to correct the abuse of burdening an adversary with answering a needlessly large number of questions. I n determining what constitutes an interrogatory for the purpose of applying this limitation in number, it is intended that each question be separately counted, whether or not it is subsidiary or incidental to, or dependent upon, another question, and however the questions may be grouped, combined or arranged. In the unusual case where 30 interrogatories are inadequate, leave for additional interrogatories may be granted by the court.

Interrogatories to parties, provided for by this rule, have been the standard way of getting information about an opponent’s case in Massachusetts for over a century. They are quick and inexpensive and to a large extent compensate for the generality of allegation permitted by Rule 8. Unlike pleadings, answers to interrogatories must be made under oath by the interrogated party.

Interrogatories under this rule are a one-sided inquiry. There are no cross interrogatories, as there may be on depositions under Rule 31. Subject to the rules of evidence, the answers may be used at trial by the interrogating party for any purpose, but not by the answering party.

The scope of inquiry is the same as under Rule 26(b). It is not limited to facts admissible in evidence and may be used to get leads to aid the interrogating party’s investigation.