Valuable information may be revealed by posing interrogatories before giving notice of depositions

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man and woman in maze

Illustration by Sam Ward

Civil litigation is predicated on broad discovery. It allows lawyers to seek the truth broadly by discovering opponents’ evidence through a variety of means. The premise is that by doing so they will arrive at the “truth,” thereby making trials a revelation of that information for the fact-finder.

Most civil litigation, however, is settled not by trial but by mutually agreed terms once each side has ferreted out the truth through discovery of the other side’s case.

In the name of the truth-finding process, extensive discovery of relevant documents—including depositions of each side’s witnesses, as well as those of nonparties—is permitted. A very broad net can be cast to discover documents that are relevant and may lead to the discovery of other pertinent ones. Such document discovery and depositions can be conducted not only from the other side but from that of third parties not directly involved in the litigation. Less universally, however, are interrogatories used to ferret out the facts of an opponent’s case before giving notice about taking a deposition.

Rule 30 of the Federal Rules of Civil Procedure now limits to 10 the number of depositions that may be taken without leave of court. Thus, in most cases, there is judicial skepticism about the desirability or benefit to the truth-seeking process of allowing limitless depositions. And we all know that disputes about which documents are and are not privilege-protected from discovery have become the tail that wags the dog of document discovery, chewing up time and financial resources and taxing the patience of judicial fact-finders.

Is there a way to determine who from the universe of possible witnesses you should target for deposition while setting up an argument to the court that you should be permitted, if necessary, to take more than 10? Is there a way of focusing the discovery disputes surrounding documents? Yes to the former question and perhaps to the second.

How many of you routinely use interrogatories as a preliminary to taking oral depositions? I venture to guess that not many of you use such a technique frequently or are required by your opponents to answer such interrogatories as a preliminary to determining which depositions should be taken. Many litigators feel that interrogatories are an inefficient, suboptimal method of gleaning facts compared to document production and depositions.


Be aware that many courts limit the number of interrogatories that can be posed without leave of court. Rule 33 of the Federal Rules of Civil Procedure allows 25. So courts share some of the skepticism many attorneys show about the discovery results of interrogatories.

Before you start giving notice to potential witnesses for oral depositions—and before engaging in a broad net of document discovery—you would benefit from asking opposing counsels to:

1. Identify the witnesses they plan to call to testify during their case in chief.

2. Provide the gist of the testimony each is expected to give.

3. Identify the facts upon which the testimony of each witness will be based.

4. Produce any documents they authored on the matters at issue.

5. Produce any documents the witness received on the matters at issue.

6. Produce any documents the witness will rely on, as part of the testimony the witness will provide.

7. Produce any documents the witness reviewed in the course of preparing to testify.

8. Ask whether a claim of privilege is being asserted in respect to any of those documents. If so, identify the documents and the basis upon which they make their claim of privilege in a log that conforms to the rules of this court.

9. Identify any individuals they are aware of with knowledge of the facts in dispute whom they do not intend to call as a witness in their case in chief.

And at that point you might wish to repeat steps 2 through 8 in respect to potential witnesses.

Despite the skepticism as to the effectiveness of interrogatories, there are multiple advantages to posing such interrogatories before delivering notice of and taking depositions.

The answers to these interrogatories:

• Should allow you to identify those witnesses you must depose and those you may not need to.

• Require the opposing side to make a commitment as to who its likely witnesses are. The likelihood of a previously unidentified witness appearing on a pretrial order or at trial is thereby substantially reduced.

• Provide you with an alternative and more useful method of winnowing through relevant documents and identifying allegedly privileged ones.

• Will allow you to lay the groundwork for a motion to increase the number of depositions from the permissible 10 to a larger number. This motion will be based on your opponents’ answers rather than your speculation about what potential witnesses you believe you need to depose may have to contribute to the fact-finding process.


Discovery disputes seem to be particularly abhorrent to judges, however necessary they often seem to the litigants’ counsels. Other than the interminable arguments about whether some document sought in discovery is privileged, disputes about whether interrogatory answers are sufficient seem to be the most difficult to successfully mount and argue.

Yet, just as fights about privileged documents have become more contentious, so too has the process of getting adequate answers to interrogatories. It seems particularly difficult because the process requires the side that must provide the answers to actually do some work.

First, that side must “discover” the facts and witnesses that are essential to its case. Second, the answering party has to make strategic decisions as to which witnesses it will use to prove its case. Let’s face it: Lawyers automatically start with a wide web-document request and follow up with deposition notices as the review of documents suggests the identity of key witnesses.

Posing the interrogatories suggested above interrupts that usual discovery trajectory. It puts the onus on each side to provide cogent answers about the identity of its actual and potential witnesses, what they know and how they know it. You and your opponent cannot merely trust that the facts will magically unfold and become evident to each side during discovery.

The party responding to such interrogatories may try to fob off providing cogent answers with a generalized objection—perhaps based on work product protection grounds. Most courts asked to rule on such objections should recognize them as nonstarters. After all, the interrogatories merely seek answers early on in discovery that each side will have to provide in a pretrial order at the end of discovery in all events—at least if the matter is being litigated in a federal court.

Since they ensure that subsequent deposition discovery will be focused instead of casting too broad a net, courts should both welcome and readily understand the purpose motivating such interrogatories. And courts should be willing to enforce the provision of adequate answers.

Finally, should you need to take more than the 10 permissible depositions, your opponent will have provided the self-explanatory evidence as to why more than 10 are necessary.

Edna Selan Epstein is retired from the daily practice of law. She established her own firm in Chicago in 1989, handling a variety of litigated matters. Epstein also served on the book publishing board of the ABA Section of Litigation and the editorial board of its journal, Litigation.

This article appeared in the November 2017 issue of the ABA Journal with the headline “Seeking to Discover: Valuable information may be revealed by posing interrogatories before giving notice of depositions.”

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