Chief Justice's Column
April-June 2012
Worthless Interrogatory Instructions and Objections
by Chief Justice Menis Ketchum
In the waning years of my four decades of law practice, and in the last three years reviewing appellate records, it has become apparent to me that a perverse culture of obstruction has developed regarding pusillanimous interrogatory objections and prefatory instructions. This culture condones and encourages lawyers to rely on the discovery process as a means of abusing an opponent. The strategy of many lawyers is "give as little as possible so [your opponents] will have to come back and back and back and maybe will go away or give up."1 These lawyers will do anything to keep from having to appear in front of a jury.
The legal response to obstructive discovery is to file a motion to compel discovery. A circuit judge must then pore over each question, each objection, each answer, and judiciously entice the parties to follow the Rules of Civil Procedure. But let's be honest: our circuit judges are just too busy to police voluminous, repeated motions to compel discovery. Perhaps the best way for judges to curb the abuse is to start imposing severe monetary penalties. Heavy sanctions may force interrogatory lawyers to comply with our Rules, which already prohibit objections that impede discovery, and which prohibit burdensome interrogatories.
ANSWERING "WITHOUT WAIVING" OR "SUBJECT TO" OBJECTIONS
Rule 33 of the West Virginia Rules of Civil Procedure says a party can object to an interrogatory, but "the objecting party shall state the reasons for objection" and the objection "shall be stated with specificity." If a party has an objection to an interrogatory, then the interrogatory is not to be answered. The lawyer submitting the interrogatory may then file a motion requesting the trial court to compel an answer, if the lawyer believes the objection is improper.
More and more, I see interrogatory answers that assert some vague or gratuitous objection, and then say "without waiving the objection, we will state the following. . . ." Answers to interrogatories offered "without waiving" or "subject to" an objection are not authorized by the Rules of Civil Procedure.
These unauthorized objections create the following problems:
1. They leave the opposing lawyer uncertain as to whether the answer is complete. Did the answer leave out the objectionable part of the answer? Or was the interrogatory fully answered?
2. At trial, the lawyer who propounded the interrogatories can be surprised with new information not provided in the interrogatory answers. The other lawyer often responds, "that is the part of the interrogatory we objected to, and you didn't compel an answer."
3. They waste time and expense by requiring the asking lawyer to "meet and confer" with the objecting lawyer, and then file a motion to compel in order to be ascertain whether the question was fully answered, or only a portion of the question answered.
Many federal courts have opined that "subject to" or "without waiving" objections are misleading, worthless and without legitimate purpose or effect. They reserve nothing. One federal judge observed:
The Parties shall not recite a formulaic objection followed by an answer to the request. It has become common practice for a Party to object on the basis of any of the above reasons, and then state that "notwithstanding the above," the Party will respond to the discovery request, subject to or without waiving such objection. Such an objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.2
There is no rationale for these type of objections, other than to obstruct discovery, and the West Virginia Rules do not allow them. It is not grounds for objection that the information sought will be inadmissible at trial. The question is proper if it may reasonably lead to the discovery of admissible evidence. Further, the party does not waive the right to supplement the answers later by not objecting.
In other words, there is no reason to object to an interrogatory and then answer unless it is a subterfuge. And, frankly, subterfuge in the discovery process is exactly what judicial sanctions are designed to curb.
Our Rules of Civil Procedure require that an objection to a question be specifically made and, if so, no answer is made. If part of the interrogatory is objectionable, a specific objection is made to that part and no answer is given. If part of the interrogatory is not objectionable then that part is answered. However, the objectionable part must be identified, specifically objected to, and not answered. Nowhere do our rules of procedure require or authorize a party to go ahead and answer when they have a specific objection.
Our circuit judges are swamped with motions to compel regarding discovery. Stiff sanctions by judges for each violation would have a dramatic effect on these unauthorized boilerplate objections. The word would spread quickly and the practice would suddenly stop. "Without waiving" and "subject to" objections are cute and tricky but plainly violate the purpose of our Rules of Civil Procedure, "to secure just, speedy and inexpensive determination of every action."3
INTERROGATORY DEFINITIONS AND INSTRUCTIONS
It seems like every set of interrogatories contains four pages of mindless, prefatory, burdensome instructions and definitions. A question can't be answered without re-reading the four pages of boilerplate instructions and definitions.
However, the West Virginia Rules of Civil Procedure do not allow, explicitly or implicitly, a propounding party to give instructions or define terms. The Rules of Procedure contain the sole instructions for answering and provide any definitions. Interrogatories are to be written plainly and each question self-contained.
Some of the more irritating items I've seen in boilerplate prefatory instructions and definitions are:
1. Defendants reserve the right to supplement these interrogatories. Why is this included? There is no rule that additional interrogatories can=t be submitted beyond the initial request.
2. These interrogatories shall be continuing and supplemental answers shall be required. The rules provide when interrogatories are continuing and answers must be supplemented. Supplemental answers are not required in every instance. A party, by unauthorized instruction, cannot override the Rules in a set of self-serving boilerplate instructions and definitions.
3. "And" or "or" shall be construed conjunctively or disjunctively. What does this mean? Nowhere do the Rules allow a proponent of interrogatories to define terms, let alone create terms that ignore the King's English. A proponent must be able to write questions in simple, plain English. Each question should be self-contained.
4. The term "document" means . . . The rules of procedure are plain as to what must be identified and how a document is to be identified. It is burdensome to refer back to a full page with multiple definitions while answering an interrogatory.
There is no doubt that limited definitions crafted to fit a particular, complex case may be helpful. However, the use of lengthy boilerplate definitions render interrogatories so burdensome to the answering party that an objection to the definitions and instructions should be upheld. (Perhaps the answering lawyer should respond, "we object to the burdensome, boilerplate objections and definitions but, without waiving the objection, we will state the following. . . .")
Lengthy, burdensome, boilerplate self-serving instructions and definitions do not contribute to the purpose of our Rules of Civil Procedure, nor contribute to the "just, speedy and inexpensive determination" of a lawsuit. The use of unreasonable definitions and instructions may render interrogatories so burdensome to the answering party and to the court that an objection to the entire series of interrogatories should be sustained.
Civil lawyers who are brave enough to appear in front of juries are becoming extinct. Perhaps they no longer have the time to appear in front of juries, because they are dealing with pusillanimous objections to interrogatories, and reading pages and pages of mindless interrogatory instructions. I wish more judges would punish this nonsense. Even better: I wish judges could force these lawyers who play games with interrogatories to appear before juries. These discovery-abusing lawyers would quickly find that you can=t win a jury trial by being cute or tricky; you only win by doing the hard work.
1John S. Beckerman, AConfronting Civil Discovery=s Fatal Flaws,@ 84 Minn.L.Rev. 505, 584 (2000) (quoting Wayne D. Brazil, ACivil Discovery: Lawyers= Views of Its Effectiveness, Its Principal Problems and Abuses,@ 1980 Am. B. Found. Res. J. 789, 829 (1980)).
2Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D.Fla. 2008).
3Rule 1, West Virginia Rules of Civil Procedure.