TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 10, 2014
RE: Rule 33, N.D.R.Civ.P., Interrogatories to Parties
Attorney David Bliss recently contacted staff about the new limit on interrogatories in Rule 33. Mr. Bliss said the rule term "discrete subpart" was not clear and that the rule should be amended to clarify it. He said that it costs parties and attorneys time and money to argue about the meaning of this term and seek court rulings on it. He said that interrogatories have traditionally been an inexpensive way to figure out the facts in the case, but the lack of clarity in the rule is changing this. He said that the rule should be amended to prevent further waste of party and judicial resources.
Mr. Bliss also said that having a limit on interrogatories did not make sense because North Dakota does not require preliminary disclosures. Mr. Bliss said that if the interrogatory limit is retained, Rule 26 should be amended to follow the federal rule and require preliminary disclosures.
Mr. Bliss seems to advocate for what Moore's Federal Practice calls the "related question" standard to Rule 33's limits on interrogatories. Under this standard, if subparts are logically related to the primary question and merely seek supplemental information, they do not qualify as "discrete subparts" and are not counted as separate interrogatories. Under this standard, however, if the question in the subpart can "stand alone" and is not essential to providing a complete answer to the primary question, it should be counted against the limit because then it is a "discrete subpart."
When a North Dakota rule uses language that is based on a federal rule, courts can use the federal interpretation of the language for guidance. Unfortunately, staff was unable to find any North Dakota U.S. District Court or Eighth Circuit case interpreting "discrete subpart" as it applies to counting interrogatories under Rule 33. The discussion in Moore's Federal Practice shows that there is not a settled or standard interpretation of this term in the federal courts. The discussion also shows that several federal district courts have adopted local rules defining "discrete subpart" for the sake of clarification. A copy of the Moore's discussion is attached.
There are more than 400 cases that reference "discrete subpart" in the Federal Rules Decisions reporter. Many of them are from California, which seems to apply Ms. Bliss's preferred "related question" standard. A copy of a recent typical case, Gilmore v. Augustus, is attached. For the sake of discussion, staff has prepared a proposed amendment to the Rule 33 explanatory note drawn from the language used by the California federal courts in explaining the meaning of "discrete subpart." A copy of the proposed amendment is attached.