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written interrogatories as a discovery tool: learning to count to 25

This blog was originally posted on the Litigation Blog Published by the Litigation Section of the State Bar of Wisconsin

Wisconsin now has a limit on the number of written interrogatories. Ralph Tease and David Blinka share their thoughts on the impact of this new limitation, and what it may mean in civil litigation.

Our state Legislature’s recent decision to institute a new limit on the number of interrogatories – as a part of its bundle of substantive changes to provisions of Wis. Stat. chapter 804 – deserves the attention of all practitioners.

This new discovery statute under Wis. Stat. section 804.08(1)(am) now provides:

A party shall be limited, unless otherwise stipulated or ordered by the court in a manner consistent with Section 804.01(2), to a reasonable number of requests, not to exceed 25 interrogatories, including all subparts.1

While some circuit courts already used local rules limiting the number of written interrogatories, our newly implemented statewide rule should cause all civil litigation practitioners to carefully consider their mode and manner of utilizing this common discovery tool in future litigation.

Using Federal Court Guidance

Since 1993, the Federal Rules of Civil Procedure have limited each party to 25 interrogatories. As such, federal court decisions may offer some guidance.

Wisconsin’s new rule, however, has several substantive differences from its federal counterpart,2 so caution should be exercised before concluding that a federal ruling will be dispositive, controlling, or even persuasive in discovery disputes arising under Wisconsin’s new rule.

Until there are Wisconsin circuit and appellate court decisions to provide direction, it may be best to use common sense and cooperation in drafting and responding to written interrogatories under this numerical limitation.

‘A Reasonable Number’ May Not Be 25

While the Wisconsin rule specifies that 25 is the maximum number of interrogatories a party may serve, the rule actually limits a party to “a reasonable number of requests.”

Conversely, Federal Rule 33(a)(1) grants at least 25 written interrogatories. A strict constructionist would advise that you may not be entitled to 25 interrogatories in every case.

What Are the Limits in Multiparty Actions?

In multiparty actions, can a party serve up to 25 interrogatories on each party? The answer to this question under the new Wisconsin rule might be “no.”

Again, the statutory language limits a “party” to “a reasonable number of requests not to exceed 25,” whereas Rule 33(a)(1) states that “a party may serve on any other party no more than 25 written interrogatories” (emphasis added).

Focusing on this distinct difference in wording, it could be argued that a party in Wisconsin will be limited to a maximum of 25 interrogatories regardless of how many opposing parties are in the action.

In other words, party A might be allowed to serve only “a reasonable number of requests not to exceed 25 interrogatories” upon all of the other parties combined, whereas each of the multiple defendants (X, Y and Z) would be entitled to serve up to 25 interrogatories on party A.

Since the outcome under this strict constructionist view would render an absurd result, it seems likely that the Wisconsin courts would follow the federal courts and allow party A to serve 25 interrogatories on each of the other parties.

What Happens with Multiple Plaintiffs and Defendants?

In the event, for example, of an automobile/personal injury action with multiple plaintiffs – such as husband and wife – and/or multiple insurer and insured defendants, it could be argued that each named party is entitled to serve up to 25 interrogatories.

On the other hand, if commonality of interest is found among parties, a court may exercise discretion to limit the common parties to one set of 25 interrogatories. While the answer to this question is unresolved in Wisconsin, some guidance may be found by turning to federal court decisions.3

Ultimately, it seems likely that Wisconsin courts would recognize that, under certain circumstances where there are nominally separate parties, they should be considered one party for purposes of this numerical limitation.

What is a Subpart?

The Wisconsin rule refers only to “subparts,” whereas Rule 33(a)(1) refers to “discrete subparts.” Under either rule, the purpose of counting certain subparts toward the limit is to prevent a party from circumventing the rule by numbering or lettering questions about distinct subjects as subparts.

Interestingly, Wisconsin’s omission of the modifier “discrete” suggests that the legislature may have intended a stricter counting method where any subpart – discrete or not – is counted.

Without a Wisconsin appellate court decision to reference, look to federal court decisions for guidance.

While federal courts have followed various approaches, the better view toward counting interrogatories has been expressed as the “related question” approach: the primary question and its subparts are to be counted as one interrogatory if the subparts are logically or factually subsumed within and necessarily related to the primary question.4

When drafting interrogatories, one practical application of this rule is to ask whether the subpart can be answered independently of the primary question. If so, it will likely be counted separately.

Here are a few common circumstances of how a subpart ruling might work:

  • An interrogatory that asks a general question about a communication or an event and then requests the time, place, persons present, and other details of the communication or event, would arguably be considered a single interrogatory.5
  • An interrogatory that asks for facts, witnesses, or documents supporting the denial or qualified response to each request for admission separately propounded would arguably be construed as more than one interrogatory, especially if each request for admission generally deals with an independent or different subject.6
  • An interrogatory requesting the factual basis for multiple affirmative defenses may also not be regarded as a single interrogatory. See C&N Corp. v. Kane,7 where the judge determined that each affirmative defense might reflect a separate theory with separate facts, but nevertheless ordered the party to answer the questions because “inquiring into the basis of affirmative defenses generally advance the orderly pretrial development of the case.”

Considerations When Drafting Interrogatories

Although you cannot assume you will be entitled to 25 interrogatories, do your best to stay within the limit of 25, including “discrete” subparts.

While the Wisconsin rule actually limits you to a “reasonable number of requests,” it is reasonable to assume that, in the typical case, each party would be allowed up to 25 interrogatories. Further, it is also reasonable to conclude that Wisconsin courts will allow each party to serve up to 25 interrogatories on each of the other parties.

If numerical limits become a concern, initiate a discussion with opposing counsel to attempt to reach an agreement. If no agreement can be reached, and the contemplated discovery can await a scheduling conference, then a request to serve additional interrogatories would be an appropriate issue to address at that time. Since Wis. Stat. section 802.10(3)(f) allows courts to address limitations on discovery at the scheduling conference, the courts should be willing to consider such a request at that time.

If no agreement can be reached with the other side, or the discovery cannot await the scheduling conference, a motion could be filed under Wis. Stat. section 804.12 seeking appropriate relief. When pursuing this option, remember that chapter 804 is to be construed, administered, and employed by the courts and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.8

As such, in order to obtain the relief you are seeking (i.e., the right to serve additional interrogatories), be prepared to demonstrate not only that additional interrogatories are necessary under the circumstances of your case, but that the use of interrogatories would be an efficient and inexpensive method of obtaining the information you seek, compared to other discovery tools available under chapter 804.

Furthermore, courts may have broad discretion to increase the number of interrogatories, and may likely be willing to do so, especially in complex cases involving technical issues or significant amounts of money.

Since the new statute requires the courts to rule “in a manner consistent with section 804.01(2),” the courts will also examine whether the information sought in the additionally requested interrogatories is within the permitted scope of discovery, and proportional to the needs of the case.

Considerations When Responding to Interrogatories

If the interrogatories served upon your client exceed the statutory limit of 25 by a modest number, the best practice might simply be to answer them. Expect that, in close cases, courts will prefer that the parties act reasonably and amicably in lieu of arguing and debating over trivial matters.

If you believe the number of interrogatories unreasonably exceeds the numerical limit, contact opposing counsel to reach an agreement on the matter. If you cannot come to an agreement, you must still decide whether to answer some or all of the interrogatories, or move for a protective order under Wis. Stat. section 804.01(3).

Keep in mind that if you believe that another party asks too many interrogatories and you selectively answer some while objecting to the remainder, you may be deemed to have waived your objection to the other party.9

On the other hand, the better practice might be to answer the first 25, then object to the remainder. If the propounding party wants the remainder answered, it must then move to compel.

Additional Recommendations for Conducting Discovery

First, most judges will not feel inclined to preside over a dispute where the numerical count is close to exceeding the numerical limitation.

If your subpart calculations reveal that you or your opponent are slightly over the limit, consider ignoring the trivial violation, and answer the interrogatories as served. If not, try reaching an agreement to deal with excess requests, whether to allow or withdraw some, before seeking court intervention.

If your case is complex, strive at the outset to reach an agreement on the number of additional interrogatories permitted for each side.

Second, use more creative requests to produce documents in lieu of interrogatories. Unlike interrogatories, there is no numerical limit to document requests under Wis. Stat. section 804.09. Rather than using interrogatories to ask, for example, whether an insurance policy exists, a cellphone was used, or a photograph or statement was taken, simply request all insurance policies, cellphone records, photographs, and statements pursuant to Wis. Stat. section 804.09.

Time Is Needed

Although the new Wisconsin rule on interrogatories resembles Rule 33(a)(1), it contains substantive differences in several respects. As such, it may take years for the Wisconsin courts and civil litigation practitioners to develop rulings and practices that will define the appropriate uses and limitations on written interrogatories as a discovery tool.

Endnotes

1 By comparison, Rule 33(a)(1) of the Federal Rules of Civil Procedure (FRCP) states: “Unless 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. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).”

2 Fed. R. Civ. P. 33(a)(1)

3 See, e.g., Vinton v. Adam Aircraft Industries, 232 F.R.D. 650, 664 (D. Colo. 2005); Beeman v. Anthem Prescription Mgmt. Inc., 2017 WL 5564535 (C.D. Cal., 2017)

4 Einfindergemeinschaft Uropep GbR v. Eli Lilly and Co., 315 F.R.D. 191, 197 (E.D. Tex. 2016)

5 Fed R. Civ. P. 33(a) Adv. Comm. Note (1993)

6 See Estate of Manship v. U.S., 232 F.R.D. 552, 556-57 (M.D. La. 2005)

7 2013 WL 74366, (E.D. Wis. 2013)

8 See Wis. Stat. § 801.01(2)

9 See Allahverdi v. Regents of University of New Mexico, 228 F.R.D. 696 (D.N.M. 2005)

RALPH J. TEASE

Ralph Tease is a shareholder and managing partner of the firm’s Green Bay and Appleton offices. He currently handles a wide range of personal injury and wrongful death cases and has tried cases in courts throughout the State of Wisconsin.

Because of his extensive trial experience, Ralph has been certified as a Civil Trial Specialist with the National Board of Trial Advocacy since 1997. He was also selected for exclusive membership in the American Board of Trial Advocates, serves on the Board of Directors of the Wisconsin Association for Justice, and was elected to the Board of the Litigation Section of the State Bar of Wisconsin. Due to his distinguished legal accomplishments and community service, Ralph was selected as a Leader in the Law by the Wisconsin Law Journal and was elected as a Fellow of the Wisconsin Law Foundation. He has been recognized as a Super Lawyer every year since 2005 and was named as one of the Top 10 Attorneys for Super Lawyers in the State of Wisconsin in 2017 & 2018.  He also has been listed as a Best Lawyer in America since 2015, and in 2017 was listed as Lawyer of the Year for personal injury litigation in Green Bay.

Green Bay / rtease@habush.com

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David S. Blinka

David Blinka is a shareholder in the Madison office. His practice encompasses personal injury cases, including wrongful death, products liability, and motor vehicle accidents. 

Prior to joining Habush Habush & Rottier, David dedicated his efforts to serving the public’s interest in securing justice and protecting legal rights while learning trial practice as a volunteer prosecutor during law school. He has since been recognized as a Rising Star since 2014 by Super Lawyers and was distinguished as an Up and Coming lawyer in 2017 by the Wisconsin Law Journal. He has also previously made the Wisconsin Pro Bono Honor Society list by having provided volunteer legal representation to those in need of equal access to justice.

As a resident of Madison, David stays active in the legal community through his involvement with the Dane County Bar Association having served on its board and the Wisconsin Association for Justice, for which he has published articles on litigation topics and presented at seminars on issues concerning subrogation and remedies in environmental tort actions. Additionally, he volunteers for various programs conducted by the University of Wisconsin Law School to help prepare students for the practice of law and has also coordinated volunteer service projects and community activities through his work with the bar association.  

Madison / dblinka@habush.com

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