Learning to Count: Hawai‘i Rules of Civil Procedure Rule 33’s Limits on Interrogatories
Mar 13, 2014
First published in the Hawai‘i Bar Journal (the official publication of the Hawai‘i State Bar Association), March 2014 Edition.
by David J. Hoftiezer
Rule 33 of the Hawai‘i Rules of Civil Procedure (“HRCP”) allows a party to issue up to 60 interrogatories, “counting any subparts or subquestions as individual questions,” without leave of a court or written stipulation. The extent to which discovery is permitted under HRCP Rule 33 is subject to considerable latitude and discretion by the trial court. Wakabayashi v. Hertz Corp., 66 Haw. 265, 275 (Haw. 1983). Consequently, there is limited substantive guidance on how to define a “subpart or subquestion”specific to HRCP Rule 33. Federal interpretation of Rule 33 of the Federal Rules of Civil Procedure (“FRCP”) may be informative in the absence of local authority.
FRCP Rule 33 permits “no more than 25 written interrogatories, including all discrete subparts.” Discrete subparts and subquestions need not be numbered or lettered to be considered separate interrogatories. Rather, district courts in the Ninth Circuit, like most district courts, apply the “related question” test as a guiding principle for delineating interrogatories. (See, e.g., Safeco Ins. Co. of Am. v. Rawstron, 181 F.R.D. 441, 444 (C.D. Cal. 1998) (explaining that “interrogatory subparts are to be counted as one interrogatory…if they are logically or factually subsumed within and necessarily related to the primary question.” (citing Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684 (D. Nev. 1997))). The “related question” test is whether a line of inquiry can be answered completely and, more importantly, independently from another subpart or subquestion. (Safeco Ins. Co. of Am., 181 F.R.D. at 444-45). If so, the subparts can be counted as two separate interrogatories.
Conversely, “a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.” (Fed. R. Civ. P. 33(a) advisory committee’s note, 1993 Amendment). For example, questions seeking both (1) the identity of persons with personal knowledge of information and (2) the information known by those persons are considered a single interrogatory because the information known is “logically and factually subsumed” by the identification of individuals possessing relevant facts and information. (Mitchell Co. v. Campus, 2008 U.S. Dist. LEXIS 47505 at *47 (S.D. Ala. June 16, 2008)). Similarly, the classic interrogatory seeking (1) elements of design defect, (2) how each element was defective, and (3) the manner in which each design defect caused alleged injury should also be considered “one interrogatory directed at eliciting details concerning a common theme.” (Cardenas v. Dorel Juvenile Group, Inc., 231 F.R.D. 616, 620, 2005 U.S. Dist. LEXIS 24556, 12 (D. Kan. 2005)).
The “related question” test creates an admittedly murky line that must be evaluated on a case-by-case and question-by-question basis. (See, e.g., Banks v. Office of the Senate Sergeant-at-Arms, 222 F.R.D. 7, 9 (D.D.C. 2004) (identifying each “discrete subpart” in an interrogatory has “proven difficult”)). Attorneys should be mindful of Section 7 of the Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers when attempting to resolve disputes over the interpretation or application of HRCP Rule 33. Just as Section 7 requires attorneys to use interrogatories sparingly and never to harass or impose undue burden or expense, attorneys should also “not object to interrogatories except when a good faith belief exists in the merit of the objections… or make objections for the purpose of withholding relevant information….” If an attorney is concerned about exceeding the limit imposed by HRCP Rule 33, the attorney has the option of asking opposing counsel or the court for permission to exceed the limit.