Interrogatories in Employment Litigation

posted by Neil Klingshirn  |  Jan 15, 2010 2:56 PM [EST]  |  applies to Ohio

Each case turns on its own facts.  However, employment litigants rarely have all of the facts that they need to prove their claims in their possession. Instead, they must usually obtain documents and testimony from the employer and other witnesses.  A court’s Rules of Civil Procedure (its “Civil Rules”) empower them to do this.

The Civil Rules include Rule 33, which allows parties to ask the other party questions, in writing, which the other party must answer under oath.  Federal and state courts have each adopted Civil Rules that are similar, although not identical, to each other.  The Civil Rules have the force of law. Each court has power to enforce them. 

Interrogatories

Interrogatories are written questions directed to another party in the lawsuit.  The responding party must answer the questions in writing and swear that the answers are true.  The responding party has 28 to 30 days to answer, depending on the court, unless the parties agree to, or the court orders, a shorter or longer time to respond. The responding party must answer or object to each interrogatory.

If the answer to an interrogatory can be determined by examining business records and the burden of ascertaining the answer is the same for either party, the responding party can answer the interrogatory by identifying the records and giving the requesting party a reasonable opportunity to examine and copy the records. 

The Civil Rules limit the number of interrogatories that a party can use without obtaining permission from the Court. In federal court, tor example, a party can use only 25 interrogatories without getting the court's permission. In addition, a party cannot request interrogatory answers from non-parties.

Interrogatories are useful for defining broad categories of evidence, such as the names of witnesses, the subject matter of their testimony and the location of documents. Interrogatories can also ask the opposing party to describe the factual bases for a claim or defense and for a factual computation of claimed damages.

Consequences of Failing to Answer Interrogatories

If the other side objects to or fails to answer interrogatories, the requesting party should make a good faith effort to work through the other side's objections or failures. If that does not work, the requesting party can file a Motion to Compel.  If court grants a motion to compel and the other party still refuses to produce the discovery, the court can sanction the disobedient party by:

Other Discovery Tools

In addition to interrogatories, the Civil Rules also provide for Request for Admissions, Document Requests (Civil Rule 34 and 45) and Depositions (Civil Rules 30-32 and 45).

Timing or Sequence of Discovery

Unless the court orders otherwise, methods of discovery may be used in any sequence. Discovery by one party does not require any other party to delay its discovery.

Discovery Plan

A Discovery Plan sets out a course of action to gather all available evidence within the time allowed for the Civil rules.  Although not required by the Civil Rules, each party should prepare a Discovery Plan for all but the simplest case.

External Links

Links to external sites with additional information about this topic.

• Federal Rule of Civil Procedure 33, Interrogatories to Parties.
  

posted by Neil Klingshirn  |  Jan 15, 2010 2:56 PM [EST]  |  applies to Ohio