Nevada Rules of Civil Procedure Rule 33 allows for written Interrogatories as one method of finding (or Discovering) information relevant to a civil lawsuit. That Rule states:
- Availability. Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, not exceeding 40 in number including all discrete subparts, to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(a).
- Answers and objections.
- Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable. The answers shall first set forth each interrogatory asked, followed by the answer or response of the party.
- The answers are to be signed by the person making them, and the objections signed by the attorney making them.
- The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories. A shorter or longer time may be directed by the court or in the absence of such an order, agreed to in writing by the parties subject to Rule 29.
- All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.
- The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
- Scope; use at trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
- Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
Discovery Scope Limits
As with all Discovery in a civil case in Nevada District Courts, Interrogatories must conform to the scope and limitations set forth in NRCP 26(b)(2) which states:
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
- In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).
- Limitations. By order, the court may alter the limits in these rules or set limits on the number of depositions and interrogatories, the length of depositions under Rule 30 or the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c) of this rule.
In other words, the Questions asked in the Interrogatories must have something to do with the lawsuit, must be fair and reasonable and must not be intended to harass the other side. For instance, I would be hard pressed to justify asking an Interrogatory requesting information about the cooking of food at a restaurant if my client’s lawsuit was based on a claim for a personal injury arising out of a slip and fall on ice outside of that restaurant. An objection to that question pursuant to NRCP 33 and 26 would be upheld unless I could show that the Interrogatory sought relevant information or information that could lead to the discovery of relevant information. I could be justified in asking such an Interrogatory in that case if I could show that one theory of the case was that, somehow, the cooking process led to water accumulating and freezing outside of the restaurant causing the dangerous condition and my client’s injury. Not terribly likely and not a question I would want to waste time asking or defending if it would not help my case.
Drafting Interrogatories
Since the Rule sets a limitation on the number of Interrogatories being asked, you must be careful in drafting them in a manner that will effectively gather information that can be used directly in the case or as a source for gathering the necessary information to support or defend a case. In 1997, the United States District Court for the District of Nevada rendered a decision regarding the meaning of the term “discrete subparts” as stated in NRCP 33(a). In Kendall v. GES Exposition Services, 174 F.R.D. 684 (1997) that court stated:
Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions [*686] should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related.
By way of example of both kinds of questions, the Court will refer to examples from the interrogatories in dispute. The following constitute interrogatories with legitimate subparts which are subsumed in the primary question:
INTERROGATORY NO. 10: Was “KENDALL” given any warning/reprimand during her employment with Defendants? If so, identify each warning/reprimand by date of incident, brief description of the incident and person who administered the warning/reprimand by name, gender, position and address.
INTERROGATORY NO. 16: In response to Plaintiff’s Interrogatory No. 8, Defendants Answer by stating, inter alia, that Kendall was “called to work in freight GES after December 1991 and declined the work.” Identify each and every instance by date, show and labor list reflecting Defendants’ assertion that Kendall was called to work in freight at GES and declined. Also, identify the person who administered the labor call and drafted the labor list.
In the first example, all the questions are designed to describe any warning/reprimand. In the second example, the questions seek to identify instances where the Plaintiff was called to work but declined. The subsequent questions in each interrogatory are necessary to complete the details required in the identification.
The following are examples of independent questions being improperly combined into one interrogatory (sometimes by using “and” or “also” to join the questions):
INTERROGATORY NO. 1: Identify fully the minimum qualifications for an employee to be hired onto “freight,” including, but not limited to, the ability to drive heavy machinery, experience in the industry, and all other criteria used by Defendants. Also, identify any document in which these qualifications are articulated.
INTERROGATORY NO. 11: State, with particularity, the value of “KENDALL’S” yearly compensation while employed by Defendants, including, but not limited to, salary, incentive payments, bonuses, life insurance, contributions to pensions plan medical insurance and state the basis by which the Defendant arrives at the value for each. Also, set forth the value of all increases to salary and other benefits that “KENDALL” would have received as a matter of course if she would have continued to be employed by Defendants, giving the inclusive dates during each was applicable.
In the first example, the first question asks for a description of qualifications. The second question asks for a description of documents. The first question can be answered fully and completely without answering the second question. The second question is totally independent of the first and not “factually subsumed within and necessarily related to the primary question.” See, Lawrence v. First Kansas Bank & Trust Co., 169 F.R.D. 657, 660-661 (D.Kan. 1996). The second question is really a fugitive request for production of documents and the discovery effort would be better served in that format.
In the second example, the first question, which contains a number of legitimate subparts, asks for a calculation of past compensation and benefits actually received by the Plaintiff. The second question, however, asks for a calculation of speculative increases in salary and benefits based upon a hypothetical situation. While both questions may be related to the issue of Plaintiff’s claims for damages, they are separate and distinct questions which require separate calculations. Each question is independent of the other and can stand alone. The second [**9] question is not subsumed in the first.
Questions we ask in Trial
Some questions seek direct information. We typically ask the Defendant in a personal injury accident case to detail their version of the accident by way of Interrogatory. This information, given under oath, can be used for many purposes such as impeachment at Trial should the Defendant’s version of the accident change or as the basis for a Motion for Partial Summary Judgment on the Issue of Liability if there is no issue of fact as to who caused the accident and the Defendant will not stipulate to liability.
Other questions seek the location of information relevant to a case. For example, in a case alleging bad faith in the handling of a Medical Payments claim against my client’s insurer, I might ask the insurer to “State the names of any and all persons who were involved in the evaluation of the Plaintiff’s Medical Payments Coverage claim arising out of the automobile accident at issue in this case at any time.” The Defendant would be required to identify all of those people involved in handling the Medical Payments claim whose Deposition could then be set seeking further information relevant to the case.
A party must Answer the Interrogtories (unless otherwise agreed) within 30 days of the date they are served. The Answers must contain each Interrogatory followed by the Answer for that Interrogatory. The Answers may also include objections provided that “all grounds for an objection to an interrogatory shall be stated with specificity.” See, NRCP 33(b)(4). “Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.” Id.
The Party serving the Interrogatories has the right to request the court to compel the other party to Answer them if there is a dispute as to the sufficiency of the Answers pursuant to NRCP 37. In Clark County, any party filing a Motion regarding a Discovery dispute to be heard by the Discovery Commissioner must comply with Eighth Judicial District Court Rules Rule 2.34. Other courts may have their own rules regarding procedures before filing Motions and those should be checked to ensure that the Motion will be heard.
Nevada Arbitration Rules Rule 11(A) states “The extent to which discovery is allowed, if at all, is in the discretion of the arbitrator, who must make every effort to ensure that the discovery, if any, is neither costly nor burdensome. Types of discovery shall be those permitted by the Nevada Rules of Civil Procedure, but may be modified in the discretion of the arbitrator to save time and expense.” Typically, the parties and the Arbitrator agree to limit the amount of Discovery. Often, each side agrees to a limit of 10 Interrogatories per party. I have been involved in a few cases where the parties and Arbitrator agreed that, due to the coplexity of the case, it was necessary and proper to allow 15, 20 or even the full 40 Interrogatories allowed by NRCP 33.
Interrogatories are a good starting point for conducting the myriad of Discovery allowed by the Rules. They are cost effective and can serve as a locator of information to be used in other written discovery such as Requests for Admission and Requests for Production. They can also be used as a source for preparing Deposition questions of adverse parties (including their employees or agents) and witnesses.
