Rule 33.Interrogatories to parties

Reporter’s Notes—2018 Amendment: Rule 33(a) is amended to change its 45-day time period to 42 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—2009 Amendment: V.R.C.P. 33(c) is amended as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendment of V.R.C.P. 26. The present amendment is identical to the 2006 amendment of F.R.C.P. 33(d), essentially applying the procedure already in effect for business records to such records that are electronically stored. See Advisory Committee’s Note to that amendment.

Reporter’s Notes—1985 Amendment: Rule 33(a) is amended to require that answers or objections to interrogatories repeat the interrogatory involved before the answer or objections. While this requirement may be a minor inconvenience for the person responding to the interrogatories, it is a great aid to the proponent and the court in ruling on objections or use of the interrogatories at trial. This amendment will also apply in district court. See District Court Civil Rule 33.

Reporter’s Notes—1982 Amendment: Rule 33(c) is amended as part of a series of amendments to the discovery rules following the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1982 Amendments to Rule 26. Experience in the federal courts showed abuses of the option to specify records and make them available for inspection. The records may be so extensive that the party seeking information will not be able to find it. Under the amended language the party responding to the discovery request must provide such detail to enable the party seeking the information to locate and identify it as readily as the party responding to discovery.

Reporter’s Notes: This rule is basically similar to former County Court Rule 4.2 (applicable in chancery by virtue of former Chancery Rule 56), which was based on former Federal Rule 33. The rule, however, contains a number of changes made in the federal rule by the 1970 amendments. Rule 33(a) provides that interrogatories may, without leave of court, be served upon plaintiff at any time after commencement of the action and upon any other party at any time after service of summons and complaint upon him. The requirement of the former rule that parties be “adverse” has been eliminated, in line with the 1970 federal amendments, to prevent obstacles to discovery where parties not technically opposed actually have conflicting interests. The rule changes the former procedure under which objections were to be presented to the court for determination within 10 days after service. Now objections are to be served in lieu of answer and the party submitting the interrogatories must invoke the aid of the court if he wishes an answer. This change, made by the 1970 federal amendments, is intended to make the procedure operate with less judicial intervention. Answers and objections are now to be served within 30 days after service (45 days for a defendant) instead of 15 days as formerly. This change, also from the 1970 federal amendments, is intended both to eliminate the need for motions to extend what, in the federal courts, had proved to be unrealistically short time limits and to assure the defendant ample time to obtain representation. See Reporter’s Notes to Rule 30. Rule 33(b) carries forward the provision of former County Court Rule 4.2 that the scope of inquiry on interrogatories is that available on deposition. The new rule, however, limits the use of answers to “the extent permitted by the rules of evidence.” This provision is more restrictive than that for use of depositions under Rule 32, because there is no opportunity for cross-examination on interrogatories. The second paragraph of Rule 33(b) permits interrogatories that involve “an opinion or contention that relates to fact or the application of law to fact.” Pointing out that the federal cases were divided on the propriety of such interrogatories prior to the addition of this language in the 1970 amendments, the federal Advisory Committee states in justification of the provision, “Efforts to draw sharp lines between facts and opinion have invariably been unsuccessful, and the clear trend of the cases is to permit ‘factual’ opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery . . . . On the other hand, under the new language, interrogatories may not extend to issues of ‘pure law,’ i.e., legal issues unrelated to the facts of the case.” 48 F.R.D. 487, 524. Abuse of this provision can be corrected by the court in its inherent power to protect the attorney’s work product, recognized in Hickman v. Taylor, 329 U.S. 495 (1947). See Reporter’s Notes to Rules 26(b)(3), 36. Note that answers as to contentions will ordinarily not limit proof at trial. See federal Advisory Committee’s Note, supra. Rule 33(c), also added to the federal rule by the 1970 amendments, permits a party who would have to do research in his business records in order to answer interrogatories to shift the burden of such research to the interrogating party by making the records available to him.