INTERROGATORIES: PROPOUNDING AND RESPONDING

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1 INTERROGATORIES: PROPOUNDING AND RESPONDING TO WHOM, AND WHEN, CAN INTERROGATORIES BE PROPOUNDED: Interrogatories may only be served on another party. Parker v. James, 997 So.2d 1225 (Fla. DCA 2008) Anytime after becoming a party Can be served on defendant with the complaint if jurisdiction is not an issue. FORM OF INTERROGATORIES: Each interrogatory question and subpart must have a place to answer after the question. If not enough room to answer on space provided, responding party may use an extra sheet of paper. SERVICE: Must be served on the opposing party with copies to any other parties BUT only the certificate of service is filed with the clerk. Fla. R. Civ. P (e) [unless necessary for a specific issue or ordered by the Court to be filed.]; See also, Woodward v. Berkery, 714 So.2d 1027 (Fla. 4 th DCA 1998) TIME TO ANSWER: Thirty (30) days after service for answers and objections But forty-five (45) days for defendant if interrogatories are served with the complaint. PRACTICE TIP#1: If you are going to assert an objection to an interrogatory or interrogatories, file the objection(s) separately and file the objections immediately. Failing to file objections, or filing them after the time has run to respond, can result in a waiver of the objection(s). Many attorneys planning on objecting to certain questions but failing to do so in a timely manner create difficulties for themselves and their clients. ANSWERS: 1- Served on the party propounding with copies to other parties. 2- Only the certificate of the answer is served with the Clerk. 3- Must answer each question separately and fully 4- Answer in writing under oath 5- A representation that a response will be made later or provided subsequently is not a valid and timely answer to the interrogatory. 6- Unsigned interrogatories are not complete. NO CONTINUING DUTY: There is no duty to supplement a response that was complete when made. Fla. R. Civ. P (e) 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 1

2 INITIAL INTERROGATORIES B LIMITATIONS AND REQUIREMENTS: Limited to thirty (30) questions including subparts. Fla. R. Civ. P (a) read: A... [I]f the Supreme Court has approved a form of interrogatories for the type of action, the initial interrogatories shall be in the form approved by the However, this section was revised in September of 2010, and this section now reads: If the supreme court has approved a form of interrogatories for the type of action, the initial interrogatories on a subject included therein shall be in from the form approved by the court. A party may serve fewer than all of the approved interrogatories with a form. [Underline shows new addition, strikethrough shows deletions.] In re: Amendments to the Florida Rules of Civil Procedure, No. SC Sept. 8, 2010 See Standard Interrogatories Forms - Civil in Appendix I to Fla. R. Civ. P. Form Forms include: Form 1 General Personal Injury Negligence Interrogatories to Plaintiff Form 2 General Personal Injury Negligence Interrogatories to Defendant Form 3 Medical Malpractice Interrogatories to Plaintiff Form 4 Medical Malpractice Interrogatories to Defendant Form 5 Automobile Negligence Interrogatories to Plaintiff Form 6 Automobile Negligence Interrogatories to Defendant See Florida Family Law Rules of Procedure Form (b) Form for original proceedings Form (c) Form for modification proceedings Additional or special interrogatories can be added to the standard interrogatories without the Court s permission as long as the total number does not exceed thirty (30). Remember, if standard interrogatories exist, they must be used. An attorney must obtain permission from the Court via motion, hearing, and order to propound in excess of the 30 interrogatories or to propound other than the standard form interrogatories. Courts will generally grant permission to propound additional interrogatories, especially if they are limited in nature and number and focused on the specific needs of the case. PRACTICE TIP #2: One must seek permission of the Court to propound additional interrogatories before sending any additional interrogatories. Failure to do so, or seeking permission after an objection has been filed, will decrease the chances of having the Court grant the request. Some attorneys and judges take the position, that if no permission was granted to propound the additional interrogatories, no objection is necessary, any privilege objections are waived and that the interrogatories may be ignored since they are not permitted by the rules. CONTENTION INTERRROGATORIES: Interrogatories can ask for the contentions or opinions of witnesses or parties even if not an expert. An objection that such interrogatories call for such is specifically dealt with in Rule (b). Further, the information sought does not have to be within the personal knowledge of the party 2

3 to whom the interrogatory is propounded. However, the responding party must provide the source of information if it was not within their personal knowledge. Fla. R. Civ. P (b) PRACTICE TIP #3: Contention interrogatories are excellent vehicles to discover the theories and facts that the plaintiffs or defendants are alleging. It can be used to focus either the allegations and/or affirmative defenses. Further correctly utilized, interrogatories can assist in identifying the correct persons to be deposed and specific person or persons who will be supporting certain allegations or defenses. DRAFTING SPECIFIC INTERROGATORIES: Special interrogatories should be drafted very carefully and keyed to the issues in your cases. They should be focused, not compound and non-ambiguous. Each interrogatory should deal with one subject only and should not be linked to other variables in the case. Many interrogatories are too broad or are generic as drafted and are subject to objections. Supplemental, Death Benefits, or Collateral Source Interrogatories, as well as others, may be appropriate in certain cases. These interrogatories should be drafted and presented to opposing counsel to see if an agreement can be reached. If none can be reached a motion should be filed and a hearing should be scheduled in an effort to obtain an order from the Court. PRACTICE TIP #4: Most objections to interrogatories allege that the interrogatory is/are overly broad, not relevant, unreasonably expensive, not designed to lead to discoverable information, ambiguous, violates work product, unduly burdensome, involves trade secrets or confidential communications, is designed to only annoy or embarrass the responding party and/or constitutes attorney client privilege. The drafting party should keep in mind these potential objections when formulating the question. The interrogatories should be directed to (1) discovery of specific facts, (2) discovery of who would have information about specific events or issues, and/or (3) learning about the existence of or location of certain documents. PROFESSIONALISM POINTER: Most trial lawyers recognize the need to obtain updated information about a party or issue especially if the deposition or interrogatories originally propounded were some distant time in the past. Most will agree to the extent that the discovery is limited to an update only. TRIAL EXPERT DISCOVERY VIA INTERROGATORIES: Fla. R. Civ. P (b)(4)(A)(i) Discovery of facts known and opinions held by experts... may be obtained only as follows: By interrogatories : 1- Identify which experts will be called 2- Determine the subject matter about which they will testify 3- Determine the substance of facts and opinions 3

4 4- Identify a summary of the ground for each opinion 5- The scope of employment in pending case 6- The compensation for such services 7- The general litigation experience including percentage of work for plaintiffs and defendants 8- Identity of other cases the expert has testified in by deposition or trial within a reasonable timeframe 9- Determine the portion of the expert s involvement as an expert (by # of hours, or % of income) in litigation as an expert PRACTICE TIP #5: However, an expert may not be required to produce financial or business records unless the most unusual or compelling circumstances... are shown. Further, an expert may not be compelled to produce or compile non-existent records or to create those records. SCOPE OF INQUIRY AND USE: 1- Can inquire into general scope of discovery 2- Discovery is not limited to purely factual information 3- Can require disclosure of opinions and contentions even if from other source 4- Any information within knowledge of the individual related to the case is discoverable 5- Can obtain information from corporate entities which can be binding on corporations if interrogatories are properly propounded. OBJECTIONS: 1- Grounds shall be stated 2- Must be signed by the attorney 3- To records production or referenced pursuant to Fla. R. Civ. P (c): [Mt. Sinai Medical Center, Inc. v. Perez-Torbay, 555 So.2d 1300 (Fla. 3 rd DCA 1990); Kornmeffel v. South Broward Hosp. Dist., 431 So 2d 742 (Fla. 4 th DCA 1983) a. Court can find it is unduly burdensome b. Can condition on payment of expenses c. Can order prepayment d. Court can order that scope of request be limited 4- Objections should be limited to only those issues or portions of an interrogatory that are truly objectionable. a. If only a portion is objectionable the party must respond to those portions of the interrogatory to which no objection has been made. PROTECTIVE ORDERS: Fla. R. Civ. P (c) provides for the use of protective orders on good cause shown. The court can order that (1) discovery not be had, (2) it occur only on specific terms, (3) a different 4

5 discovery method be utilized, (4) limitations be placed on inquiries be set out, (5) persons present be limited, (6) the deposition be sealed, and (7) trade secrets, or other confidential information, not be disclosed. FAILURE TO RESPOND or TO RESPOND COMPLETELY: 1- Attempt to elicit voluntary compliance with opposing counsel 2- Call up objections for hearing 3- May, and probably should, move to compel responses or more complete responses 4- May move for sanctions PRODUCTION OF RECORDS VIA INTERROGATORIES 1.340(c) A party may: 1- Provide the records in an answer and identify what is being provided 2- Provide the propounding party the opportunity to examine, inspect copy and/or audit the records: a. If burden of deriving the information is approximately the same on each party. See, Mt. Sinai Medical Center, Inc. v. Perez-Torbay, 555 So.2d 1300 (Fla. 3 rd DCA 1990) b. The records are reasonably made available, are identified to allow the party to obtain the information, or identify a person or persons who will be available to assist the interrogating party in locating and identifying the records at the same time they are produced. c. The burden is on the interrogating party to show it would be easier for the interrogated party to identify and locate the information. Department of Health and Rehabilitative Services, v. Cleavinger, 582 So.2d 68 (Fla. 1 st DCA 1991) USE IN HEARINGS AND AT TRIALS: Interrogatories can not be used in any court proceeding unless they have been filed with the Clerk. San Hueza v. National Foundation Life Ins., Co., 545 So.2d 321 (Fla. 3 rd DCA 1989) Questions and answers maybe used at hearings and trials if they are (1) relevant, (2) responsive to the specific issue, (3) the answer was based on personal knowledge, or (4) imputed knowledge as a designated corporate representative and (5) is not otherwise inadmissible under other evidentiary rules or 1.340(b) as a qualified answer. If part of an interrogatory is introduced, the Court, upon request, can order the interrogating party to introduce any other interrogatory questions and answer that in fairness ought to be considered with it. Fla. R. Civ. P (b) HINTS FOR PRESENTING MATTERS TO THE COURT FOR RULINGS: When bringing these matters before the Court, the following procedures are recommended: 5

6 1- Attempt to resolve the matter with opposing counsel before setting the hearing. 2- Include a certification of a good faith attempt to resolve pursuant to Fla. R. Civ. P (a)(2) 3- In the motion include for each separate interrogatory and answer thereto: a. The exact interrogatory that was propounded b. The specific answer and/or objection received exactly as it was set forth c. The legal reason, with supporting case law, which the Court should consider in deciding whether to grant the requested relief and/or sanction. 4- Provide a courtesy copy to the judge s chambers no later than three days before the hearing. 5- A draft order with copies that can be entered by the Court at the hearing. Judge John Marshall Kest Revised April (Copyrighted) 2 Comments, recommendations, practice tips and professionalism pointers are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 6

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