Commercial Litigation and Arbitration

Interrogatories — What Are “Discrete Subparts” for Purposes of Limit of 25?

Carpenter v. Donegan, 2012 U.S. Dist. LEXIS 35176 (N.D.N.Y. Mar. 15, 2012):

The permissible number of Interrogatories is controlled by Rule 33(a) which reads in part, "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts [.]" The crucible of our discovery disagreement turns on what is meant by "all discrete subparts." Unfortunately, the statute does not provide a further definition to guide litigators and the Court as to what is meant by this phrase or definitely settles this presumptive limitation on the number of interrogatories. Legal Commentators and the courts who have grappled with this finite issue raised a similar lament and have considered their review as a matter of first impression.

To confound us more, the Federal Rules Advisory Committee contemplated the issue before us, yet only provided an abbreviated instruction on how to address the problem:

Parties cannot evade this presumptive limitation through the device of joining as "subparts" questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.

Fed. R. Civ. P. 33(a) advisory committee's notes 1993 Amendment; see also Concerned Citizens of Belle Haven v. Belle Haven Club, 2004 WL 1699009, at *6 (D.Conn Apr. 28, 2004) (joining discrete separate subparts into a single interrogatory is improper); Safeco of Am. v. Rawstron, 181 F.R.D. 441, 443-44 (C.D. Cal. 1998) (survey of cases).

This Court as well as others have found this rather brief analysis insufficient to be a guide on what can become a rather complicated and contorted maze in interpreting interrogatories and their subparts as "discrete separate subjects." What may appear to be a simple process on its face, is nothing but the contrary. To delineate between an excessively broad and comprehensive drafting of interrogatories and their subparts and properly narrowly constructed interrogatories is rather difficult to discern. Without a bright-line rule, disagreement between litigants and the courts are apt to occur.

Of these courts that have confronted this issue, there has developed a common denominator on how to weigh an interrogatory's subparts as independent and discrete. An interrogatory's subparts are to be counted as separate and discrete subparts "if they are not logically or factually subsumed within and necessarily related to the primary question." Madison v. Nesmith, 2008 WL 619171, at *3 (N.D.N.Y. Mar. 3, 2008) (quoting Cramer v. Fedco Auto. Component Co., Inc., 2004 WL 1574691, at *4 (W.D.N.Y. May 26, 2004) (citations omitted); Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 2003 WL 22326563, at *1 (D. Conn. Mar. 7, 2003) (citing, inter alia, Safeco of Am. v. Rawston, 181 F.R.D. at 444-45 (ruling that a subpart is discrete and regarded as a separate interrogatory when it is logically or factually independent of the question posed by the basic interrogatory)); 7 James Wm. Moore et al, Moore's Federal Practice, § 33.30[2] (3d ed. 2003) ("The better view is that subparts be counted as part of one interrogatory if they are logically and necessarily related to the primary question."). That is, if the first question can be answered fully and completely without answering the second question, then the second question is totally independent of the first question and not factually subsumed within and necessarily related to the primary question. Madison v. Nesmith, 2008 WL 619171, at *3) (citing, inter alia, Cramer v. Fedco, 2004 WL 1574691, at *4. Stated another way, if the subparts cannot be fairly and reasonably characterized as closely related to the first part of interrogatory, it is therefore discrete and separate. Id. Indeed, for example, if a response to the first part of a two-part interrogatory is "implicit in a response to the [second] [p]art [] . . . [then] a complete answer to the latter [part] requires an answer to the former [part]. The two subparts are not discrete and may not be characterized as [independent interrogatories]." Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 2003 WL 22326563, at * 1; see also Thompson v. Lantz, 2009 WL 3157563, at *1 (D.Conn. Sept. 25, 2009) ("A subpart is discrete and therefore regarded as a separate interrogatory when it is logically or factually independent of the questions posed by the basic interrogatory.") (quotation marks and citation omitted) & Nyfield v. Virgin Islands Tel. Corp., 200 F.R.D. 246, 247-48 (D. Virgin Island, May 10, 2001) (ruling that we should examine whether the first question is primary and subsequent questions are secondary to the primary question and if the subsequent questions can stay alone then they are independent of the primary question).

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