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