FRCP 33(d) and Specificity of Indentification of Records
When a party responds to Interrogatories by referring to documents pursuant to FRCP 33(d), a dispute often ensues as to whether the responding party supplied sufficient detail for the discovering party to determine which documents are responsive to specific interrogatory requests.
Here is an extract on the point from a brief we filed in federal court in Maryland:
"Under Fed.R.Civ.P. 33(d), a party has the option to produce business records where the answer to an interrogatory may be derived or ascertained and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served. In that case, "it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be entertained." The primary purpose of this Rule is "to shift the time and cost burden, of perusing documents in order to supply answers to discovery requests, from the producing party to the party seeking the information." U.S. Securities and Exchange Commission v. Elfindepan, S.A, 206 F.R.D. 574, 576 (M.D.N.C. 2002) (citing Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 225-226 (10th Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 239 (1976). When "voluminous documents are produced under Rule 33(d), they must be accompanied by indices designed to guide the searcher to the documents responsive to the interrogatories". O'Connor v. Boeing North American, Inc., 185 F.R.D. 272, 278 (C.D. Cal. 1999) (emphasis added). See also Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486 (W.D.N.C. 1998) (holding that defendant's discovery responses should have identified the particular box containing the responsive documents).
Upon the filing of a motion to compel, the propounding party "must make a prima facie showing that the use of Rule 33(d) is somehow inadequate to the task of answering the discovery, whether because the information is not fully contained in the documents, is too difficult to extract, or other such means." The burden then shifts to the producing party to justify the use of Rule 33(d). Id. "
Ultimately, the Magistrate Judge determined that the indices provided did not supply sufficient detail. See 227 F.R.D. 404 (D. Md. 2005)
Here is an extract on the point from a brief we filed in federal court in Maryland:
"Under Fed.R.Civ.P. 33(d), a party has the option to produce business records where the answer to an interrogatory may be derived or ascertained and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served. In that case, "it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be entertained." The primary purpose of this Rule is "to shift the time and cost burden, of perusing documents in order to supply answers to discovery requests, from the producing party to the party seeking the information." U.S. Securities and Exchange Commission v. Elfindepan, S.A, 206 F.R.D. 574, 576 (M.D.N.C. 2002) (citing Daiflon, Inc. v. Allied Chem. Corp., 534 F.2d 221, 225-226 (10th Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 239 (1976). When "voluminous documents are produced under Rule 33(d), they must be accompanied by indices designed to guide the searcher to the documents responsive to the interrogatories". O'Connor v. Boeing North American, Inc., 185 F.R.D. 272, 278 (C.D. Cal. 1999) (emphasis added). See also Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486 (W.D.N.C. 1998) (holding that defendant's discovery responses should have identified the particular box containing the responsive documents).
Upon the filing of a motion to compel, the propounding party "must make a prima facie showing that the use of Rule 33(d) is somehow inadequate to the task of answering the discovery, whether because the information is not fully contained in the documents, is too difficult to extract, or other such means." The burden then shifts to the producing party to justify the use of Rule 33(d). Id. "
Ultimately, the Magistrate Judge determined that the indices provided did not supply sufficient detail. See 227 F.R.D. 404 (D. Md. 2005)
posted by Bob Redmond at 7:49 AM
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