Rule 33(a)’s Interrogatory Limitation: By Party or by Side?

The Federal Rules of Civil Procedure begin with a statement of their purpose: “These rules . . . shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” With this mandate, the Federal Rules identify the primary objectives of civil procedure—substantial justice and procedural efficiency. The Federal Rules operate to effectuate both aims in tandem, that is, to maximize justice without sacrificing efficiency. However, justice and efficiency vis-à-vis the Federal Rules often work at cross purposes. Efficient procedure can diminish in the name of justice, as can justice in the interests of efficiency. Thus, as Franz Kafka so memorably allegorized, neither an expedient nor deliberate system of procedure guarantees a just outcome. The challenge, then, remains for courts to construe the Federal Rules so as to facilitate decisionmaking that is both efficient and equitable.

In the past few decades, discovery under the Federal Rules has emerged as a locus of procedural discord. Interrogatory practice in particular has attracted a fair amount of recent judicial scrutiny. Much of the conflict has centered on Rule 33(a), which provides that “any party may serve upon any other party written interrogatories, not exceeding 25 in number . . . to be answered by the party served.” The Rule’s language indicates that each party of a civil suit may serve up to twenty-five interrogatories upon any other party of the same suit. Indeed, some courts and commentators have interpreted Rule 33(a)’s limitation to apply to each and every party of a civil action. Despite Rule 33(a)’s plain meaning, other courts and commentators have articulated an alternate Rule 33(a) construction. According to the alternate construction, the word “party” may in some instances refer to an entire side of a dispute in the aggregate, rather than to the individual actors that comprise each side. The alternate Rule 33(a) construction therefore applies the twenty-five-interrogatory limit by “side,” and not by “party.”