The End of Interrogatories: Why Twombly and Iqbal should Finally Stop Rule 33 Abuse

Abstract

Interrogatories are good for only one thing: abuse. Interrogatories are formal, written questions that parties are supposed to use to obtain discoverable information under Rule 33 of the Federal Rules of Civil Procedure. But they rarely provide any useful information. Other discovery devices and motion practice are more effective at narrowing issues for trial and uncovering the true facts of a case. Interrogatories are inherently burdensome and frequently unreasonable, often demanding that a party disclose key aspects of its trial strategy, which a party itself may not know until the eve of trial. Likewise, interrogatory responses are evasive and rife with incoherent legalese. Nonetheless, many consider interrogatories a necessary tool to discover the detail underlying a plaintiff’s complaint under the federal “notice pleading” system. The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, however, heightened the federal pleading standard, raising the bar for plaintiffs to survive a pre-discovery motion to dismiss. Now, plaintiffs must include enough factual detail in their complaints to render their claims “plausible.” There is no longer any need for a discovery tool to obtain that same information. Thus, interrogatories function solely as a tactical weapon to force an opposing party to incur costs, delay litigation, and avoid a just disposition on the merits.

In this article, I propose a series of reforms that will eliminate Rule 33 from the Federal Rules of Civil Procedure, putting an end to the abusive tactics that come with it. To the extent that other procedures have not completely overtaken the legitimate functions of interrogatory practice, they can be expanded to do so. My proposal will not only help to curb discovery abuse, but also alleviate the increasing burdens on plaintiffs, who are already required to prepare numerous complex submissions before getting to trial.

Keywords: interrogatories, discovery, discovery abuse, twombly, iqbal, notice pleading, contention interrogatories

JEL Classification: K40, K41