Citing to Government Records in Answer to Interrogatories under Rule 33(d)

Parties often respond to interrogatories by vaguely citing to government documents or data and saying "these documents are equally available to [interrogating party]". Such a response is inadequate under the Federal Rules of Civil Procedure.

Reference to documents in the possession of government agencies, without also producing the documents, does not justify any refusal to provide a substantive, narrative response under Rule 33. See, e.g., Davis v. Fendler, 650 F.2d 1154, 1158 n.3 (9th Cir. 1981) (stating party could not respond to interrogatory by specifying state agencies where responsive information could be found because such records do not qualify as “business records”); In re Savitt/Adler Litig., 176 F.R.D. 44, 49-50 (N.D>N.Y. 1997) (holding invocation of Rule 33(d) improper where documents referenced were not plaintiffs’ business records); 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2178 (2d ed.) 1994) (“Ordinarily it is also required that the information be obtainable from the records of the responding party, not those of somebody else”.)

See also Bujnicki v. American Paving and Excavating, Inc., 2004 U.S. Dist. LEXIS 8869, at *46 (W.D.N.Y. Feb. 25, 2004) (notwithstanding the fact that defendants can obtain the requested documents from third-party source, “plaintiff is required to produce all responsive documents in her possession.”)

While citing to business records previously produced is acceptable under Rule 33(d) [see previous posts for levels of specificity] it is not acceptable for Government Records or Court Documents

Can A 30(b)(6) Witness be Forced to Testify About Litigation Contentions?

Numerous cases reject the use of Rule 30(b)(6) to require an adverse party to “marshal . . . its factual proof” and then put forward a witness to be cross-examined regarding such proof under oath. For example, In re Independent Serv. Organizations Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996), upheld objections to Rule 30(b)(6) notices seeking “facts supporting numerous paragraphs of a party’s denials and affirmative defenses.” As the court explained, these notices improperly required the responding party:

"in effect . . . to marshal all of its factual proof and then provide it to [the Rule 30(b)(6) designee] so that she could respond to what are essentially . . . contention interrogatories . . . [T]his would be highly inefficient and burdensome, rather than than the most direct manner of securing relevant information. "

168 F.R.D. at 645. Accord SmithKline Beecham Corp. v. Apotex Corp., 2000 WL 116082 (N.D. Ill.), at *7-9; United States v. District Council of New York, 1992 WL 208284 (S.D.N.Y.).

In SmithKline, the court issued a protective order barring a Rule 30(b)(6) deposition that sought testimony regarding (1) the “investigation and testing activities” leading to the responding party’s conclusion that a given patent had been infringed, (2) the “factual basis” for this claim of infringement, and (3) the party’s responses to certain discovery requests “along with the subjects identified therein.” 2000 WL 116082 at *9-10. The rules of discovery, the court held, prevent parties from:

""wielding the discovery process as a club by propounding requests compelling the recipient to assume an excessive burden . . . [T]he recipient of a Rule 30(b)(6) request is not required to have its counsel muster all of its factual evidence to prepare a [“person most knowledgeable witness] to be able to testify regarding a defense or claim. "

Id. Cf. McCormick-Morgan, Inc. v. Teledyne Indus. Inc., 134 F.R.D. 275, 286 (N.D.Cal. 1991) (“we are concerned that . . . no one human being can be expected to set forth, especially orally in a deposition, a fully reliable and sufficiently complete account of all bases for the contentions made and position taken by a party” in a complex case).

Such Rule 30(b)(6) notices can befar more burdensome, instrusive, and likely to result in breaches of attorney-client privilege and work produce than interrogatories directed at the same subjects. SmithKline, 2000 WL 116082 at 10 (rejecting Rule 30(b)(6) deposition when “interrogatories would be a far better method of discovery [the information] sought because SmithKline could synthesize the information from all of the available sources, which then would be presented to Defendants in a comprehensible manner”). Indeed, the topics listed in such notices are oftenarticulated in the form of an interrogatory.

Counsel should promptly object to such 30(b)(6) notices and argue that the 30(b)(6) deposition is intended to identify facts, not poke holes in legal theories.

Shotgun Complaints

Often, Plaintiffs will file sweeping Complaints against numerous ( often hundreds) of defendants alleging sundry facts and not specifying which facts apply to which defendants. This is improper and is not challenged enough by defendants, particularly in Mass Tort litigation.


In Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001), the Eleventh Circuit expressed its vigorous disapproval of shotgun complaints:

"The complaint is a quintessential shotgun pleading of the kind we have condemned repeatedly, beginning at least as early as 1991. It is in no sense the “short and plain statement of the claim” required by Rule 8 of the Federal Rules of Civil Procedure. It is fifty-eight pages long. It names fourteen defendants, and all defendants are charged in each count. The complaint is replete with allegations that “the defendants” engaged in certain conduct, making no distinction among the fourteen defendants charged, though geographic and temporal realities make plain that all of the defendants could not have participated in every act complained of. Each count incorporates by reference the allegations made in a section entitled “General Factual Allegations” – which comprises 146 numbered paragraphs – while also incorporating the allegations of any count or counts that precede it. The result is that each count is replete with factual allegations that could not possible be material to that specific count, and that any allegations that are material are buried beneath innumerable pages of rambling irrelevancies. This type of pleading completely disregards Rule 10(b)’s requirement that discrete claims should be plead in separate counts, and is the type of complaint that we have criticized time and time again. (internal citations omitted)."

Id, at 1284.

See also Harold’s Auto Parts, Inc., et al. v. Flower Mangialardi, et al., 889 So. 2d. 493 (Miss. 2004). The Mississippi Supreme Court referred to asbestos shotgun complaint as “abuse of, and failure to comply with, Rules 8, 9, 10 and 11 [of the Mississippi Rules of Civil Procedure-- identical to the FRCP].” The Supreme Court insisted that each Complaint reflect sufficient information obtained by plaintiffs’ counsel to form a “good faith” basis that each plaintiff has a valid cause of action against each defendant in the jurisdiction in which the complaint was filed". The Mississippi Supreme Court, added: “to do otherwise is an abuse of the system, and is sanctionable.”


It is up to the defense bar to put a stop to the practice of Shotgun Complaints. When it is brought to their attention, judges often dismiss Shotgun Complaints.

Where Is A Corporate Representative Deposed?

Although most attorneys know to schedule a FRCP 30(b)(6) witness at or near the corporation's headquarters, sometimes adversaries try to burden a corporate defendant be setting the deposition at the trial venue. This is almost uniformly improper unless the corporation has filed a counter-claim. Although it is widely understood that corporate depositions need to take place at or near the corporate headquarters, here is the law:

[1] Grey v. Continental Marketing Associates, Inc., 315 F. Supp. 826, 832 (N.D. Ga. 1970).; but see; Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166, 171, 1 Fed. R. Serv. 3d 717 (S.D. N.Y. 1985) (ordering deposition of large corporate defendant in forum of lawsuit rather than in corporation’s principal place of business); Resolution Trust Corp. v. Worldwide Ins. Management Corp., 147 F.R.D. 125, 127 (N.D. Tex. 1992), aff’d, 992 F.2d 325 (5th Cir. 1993) (recognizing exceptions to rule that corporation should be deposed at its principal place of business).

The reasons why corporate depositions need to take place at or near the company's headquarters include:

Minimizing discovery burdens on corporate defendants;
Minimizing travel expenses for the witness or witnesses;

Some authorities suggest that it is useful to hold the deposition at the corporate headquarters so that the witness can retrieve documents from the corporation during the depositoin. This is a bad idea. The defending attorney should never permit the witness to offer to retrieve documents during the deposition. The documents need to be reviewed for responsiveness and privilege and this is almost impossible during the pendency of the deposition.