You've drafted contention interrogatories asking the opposing party to "state all facts" supporting their defense. Your team believes this is standard practice, as Fed.R.Civ.P. 33(a)(2) permits interrogatories asking for opinions or contentions related to fact. But when the response arrives, it's an objection claiming your request is overly broad and unduly burdensome.
This checklist helps your team draft contention interrogatories that survive objection while still gathering the intelligence you need for case strategy.
What This Checklist Covers
Contention interrogatories ask an opponent to state the facts supporting a specific claim or defense. They're powerful discovery tools when properly scoped. The Rain Drop Foundation, Inc. v. State Farm Fire and Casualty Co. ruling illustrates where courts draw the line: interrogatories demanding "all facts" or "exhaustive renditions" cross into burden territory, even when the underlying question is permissible.
This checklist focuses on the drafting and timing decisions that determine whether your interrogatories get answered or get quashed.
Prerequisites
Before using this checklist, confirm:
- Your jurisdiction permits contention interrogatories (most do under Fed.R.Civ.P. 33(a)(2) or equivalent state rules)
- You've identified specific contentions in the pleadings you need the opposing party to clarify
- You understand the difference between asking for "the basis" of a contention versus demanding "all facts" supporting it
- Your team has access to the current Records Control Schedule for document requests that may accompany interrogatories
Checklist Items
1. Frame each interrogatory around a single, specific contention from the pleadings.
Reference the paragraph number or specific language from the complaint or answer. Don't ask the opposing party to "state all contentions", ask them to explain the factual basis for a contention they've already made.
Example: "In paragraph 12 of your Answer, you contend that Plaintiff failed to mitigate damages. Identify the actions you contend Plaintiff should have taken but did not."
2. Replace "all facts" with "the principal facts" or "the factual basis."
Courts in Rain Drop Foundation and similar cases have found that requests for "all facts" are overly broad. Your goal isn't an exhaustive list, it's clarity on the opponent's theory.
Example: An interrogatory asking for "the factual basis for your contention" rather than "all facts, evidence, documents, and witnesses supporting your contention."
3. Limit requests for supporting evidence to categories, not exhaustive lists.
If you need to know what types of evidence support a contention, ask for categories or examples. Pair this with targeted document requests using your Business Classification Scheme to identify specific record series.
Example: "Identify the types of documents you contend support your assertion that the contract was breached", not "Identify all documents and other evidence that may support such contention."
4. Separate witness identification from fact identification.
Don't bundle "all persons with knowledge" into the same interrogatory as the factual basis. Courts view these as separate inquiries, and combining them amplifies the burden objection.
Example: One interrogatory for the factual basis, a separate interrogatory for witnesses with knowledge of those specific facts.
5. Consider timing under Fed.R.Civ.P. 33(a)(2).
The rule permits courts to delay responses until after designated discovery is complete. If you're propounding contention interrogatories early in the case, acknowledge that the court may defer the response deadline.
Example: A meet-and-confer discussion about timing before filing a motion to compel, with your team prepared to accept answers after initial document production.
6. Draft interrogatories that require a position, not a data dump.
Contention interrogatories should clarify the opponent's theory, not create a mini-trial brief. If the answer would require the opposing party to marshal all their evidence prematurely, you've gone too far.
Example: Questions that can be answered in a paragraph or two, forcing the opponent to commit to a position you can test in depositions.
7. Review for proportionality before serving.
Even if your interrogatory is technically permissible, ask whether the burden of answering is proportional to the needs of the case. Courts increasingly apply proportionality analysis to contention interrogatories.
Example: A draft review where you can articulate why each interrogatory is necessary for case strategy and not duplicative of other discovery.
Common Mistakes
Treating "contention" as a license for unlimited scope. Fed.R.Civ.P. 33(a)(2) says contention interrogatories aren't "objectionable merely because" they ask for opinions, but that doesn't mean they're immune from burden objections. The Rain Drop Foundation court found certain contention interrogatories permissible in general but still quashed the specific interrogatories at issue for being overly broad.
Using boilerplate from form books. Many litigation form books contain interrogatories asking for "all facts," "all persons," and "all documents" in a single question. These forms predate modern proportionality standards and recent case law limiting exhaustive requests.
Confusing contention interrogatories with requests for admission. If you want the opponent to admit or deny a specific fact, use a request for admission. Contention interrogatories are for understanding the factual basis of a claim or defense the opponent has already asserted.
Ignoring your own Records Freeze obligations. When you serve contention interrogatories, you're signaling which issues are in dispute. Make sure your Legal Hold notices cover the record series your interrogatories identify as relevant.
Next Steps
After finalizing your interrogatories using this checklist:
Coordinate with your document requests. Use your Business Classification Scheme to identify the record series that correspond to the contentions you're interrogating. This creates a cohesive discovery strategy.
Plan your deposition strategy around anticipated answers. Contention interrogatories lock the opponent into positions you can probe in depositions. Map out how you'll use the answers to structure witness examinations.
Document your proportionality analysis. If you face a motion for protective order, you'll need to show you considered burden. Keep notes on why each interrogatory is necessary and how you limited scope.
Update your Records Control Schedule based on discovery patterns. The interrogatories that draw objections reveal which record categories opposing parties find burdensome to produce. Use this intelligence to refine retention decisions for similar future litigation.
The line between thorough discovery and undue burden isn't always clear until a court draws it. By focusing on specific contentions, limiting scope to principal facts rather than exhaustive lists, and separating different types of requests, you'll draft interrogatories that survive objection and deliver the strategic intelligence your case needs.
