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Written Interrogatories for Civil Lawsuits in Colorado
Written interrogatories are frequently used in civil lawsuits and are part of the general discovery process used to gather information regarding facts at issue in the lawsuit from opposing parties. In civil lawsuits in Colorado courts, written interrogatories are primarily governed by Colorado Rule of Civil Procedure (“C.R.C.P.”) 33 and each party is allowed to serve up to 30 written interrogatory requests on adverse parties; however, that number may be modified up or down for good cause. See C.R.C.P. 26.
At their most basic, written interrogatories are information finding mechanisms and are essentially questions served on an opposing party that they are required to answer. Examples of written interrogatories for a personal injury case include:
– Are you claiming physical injuries as a result of the car accident and, if so, what is the nature of those injuries and what medical treatments have you sought for those injuries?
– Describe in detail the actions you were taking or activities you were engaged in just prior to the car accident.
– Had you taken any drugs or other intoxicating substances within 24 hours of the accident and, if so, what are those substances and when were they ingested?
Importantly, the Colorado Supreme Court has promulgated form interrogatories which can be useful as examples of how to draft interrogatories or, may simply be served on an opposing party as-is. One advantage of using the form interrogatories as-is is that, while subparts for a non-form interrogatory are considered entirely separate interrogatories that count towards the interrogatory limit, this is not the case with pattern interrogatories.
Specifically, the Colorado Rules of Civil Procedure indicate that subparts to pattern interrogatories are considered part of the same interrogatory and, thus, each individual subpart does not count separately towards the interrogatory limit. This can be a significant factor as subparts to non-pattern interrogatories can add up quickly resulting in a significant limitation of the number of interrogatories that can be served on an opposing party and, accordingly, a significant limitation on the information that can be sought from an opposing party.
Further, when responding to written interrogatories, whether pattern or non-pattern, a party should carefully craft its answers as they can be used against the party at trial to the extent permitted by the Colorado Rules of Evidence. In particular, since responses are statements and admissions by a party opponent, they can be used for impeachment purposes as well as admitted as substantive evidence against a party. See C.R.C.P. 33(b). Accordingly, when answering interrogatories a party would be wise to consult an attorney or have an attorney draft the responses for it, especially with respect to objections since objections can be waived if not properly made.
Objections to Written Interrogatories
While written interrogatories are supposed to be information finding mechanisms, unfortunately, since attorneys are often involved in crafting the responses, the effectiveness and actual information provided in the response is frequently obfuscated and limited. It is not uncommon for the opposing party’s attorney to object to every written interrogatory and provide the bare minimum of information necessary for the response to be adequate. Examples of objections to written interrogatories include:
– Unduly Burdensome: the interrogatory requests information that would be unduly burdensome or oppressive in responding to. Importantly, where an unduly burdensome objection is made, a specific showing of reasons why the request is unduly burdensome is required; an objection generally asserting responding to an interrogatory would be burdensome or oppressive is insufficient.
– Overbroad: the interrogatory goes far beyond the issues being litigated in the lawsuit. While this objection may be made where the interrogatory requests irrelevant information, it should be noted that information that is considered discoverable information is relatively broad. Indeed, as long as the information being sought is potentially relevant or could lead to information that is potentially relevant to the issues in the lawsuit it will be discoverable information. Thus, overbroad objections are applicable only where the information requested could have no bearing on the issues in the lawsuit whatsoever.
– Vague or Ambiguous: the interrogatory is so ambiguous or wanting in specificity that it is burdensome and oppressive to determine what the interrogatory is requesting and respond to. Notably, where an interrogatory has vague or ambiguous terms, that is not in and of itself sufficient to justify no response. Typically, a party is still required to respond but may first define any terms it determines are vague or ambiguous in the interrogatory. Only where the interrogatory is so vague or ambiguous that a party cannot reasonably determine what the interrogatory is asking should an objection be made and the interrogatory left unanswered.
– Evidentiary Detail: the interrogatory seeks information of such detail that it requires information about how the other side intends to prepare their side of the case or shifts the labor and expense of preparation of the case to the opponent. Examples of improper interrogatories that seek improper evidentiary detail include asking a party to state the evidence upon which she intends to prove her side of the case and requesting a party to produce a list of witnesses that will be called to prove a stated fact. Generally speaking, if the interrogatory goes beyond requesting factual information and requests information into the other party’s strategy or mental impressions of how to prepare the case then the interrogatory is objectionable based on evidentiary detail.
– Argumentative Questions: the interrogatory requests conjectural answers or answers that are too speculative. Importantly, just because an interrogatory requests a conjecture or requires an answer that is based on speculation that the opposing party disagrees with does not justify a total lack of response. That is, just because a party disagrees with a conjectural or speculative premise that the interrogatory is based on does not justify a party to refuse to answer the interrogatory. However, courts have determined that a party is not required to give a conjectural answer to an interrogatory based on false premises as opposed to premises where the party simply disagrees with it.
– Privilege: the interrogatory requests information that is privileged. Examples of privileged information include attorney-client communications made between an attorney and her client, work product prepared by the attorney that contains the mental impressions of the attorney in relation to the case, and medical information protected by doctor-patient confidentiality. Importantly, where the nature of the claims in the lawsuit puts the underlying privileged information at issue, that privilege is waived. For example, in a personal injury case where the plaintiff is alleging physical injuries any doctor-patient confidentiality that existed for treatment of that plaintiff’s injuries will be waived due to the patient placing those injuries at issue in the lawsuit.
Importantly, objections to interrogatories must be made in written from and must be done prior to answering the interrogatory otherwise any objections that could have been made will be waived. Moreover, where an objection is made, any information objected to must be withheld since any information provided in the response will not be protected by the objection. See Skelton & Co. v. Goldsmith, 49 F.R.D. 128 130 n.1 (S.D.N.Y. 1969); Meese v. Eaton Mfg. Co., 35 F.R.D. 162, 166 (N.D. Ohio 1964).
More specifically, the rules require that the interrogatory be fully answered of that the objection and grounds for the objection be stated. A blanket objection that a response is provided “without waiving any objections” is improper and has no legal effect. A responding party must either answer fully or object. See Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 615-17 (5th Cir. 1977).
Obligations a Party has in Answering Written Interrogatories
When responding to written interrogatories, the party answering them is required to do so based on all information available to him or her at that time. This includes not only information that the party is directly aware of, but also information that is available from the party’s attorney and any agents or representatives that act on behalf of that party, inclusive of private investigators. Additionally, under C.R.C.P. 26, a party has a duty to supplement information and update interrogatory responses as the lawsuit progresses. Thus, if a party becomes aware of information relevant to an interrogatory response after the party has already answered the interrogatory, the party must still disclose that information and update its interrogatory response.
For the party serving the interrogatory requests – that is, the party seeking information, if he believes the responses are insufficient or improper objections were made in the responses, she may request an order from the court under C.R.C.P. 37 compelling a responsive answer or seeking sanctions. Examples of sanctions include awarding attorneys’ fees incurred in dealing with the discovery issues to the requesting party, holding the responding party in contempt, or denying the responding party the opportunity to offer certain evidence at trial. See also, C.R.C.P. 121 § 1-12 (requirements for motions regarding discovery disputes).
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.