Legal Memorandum: Contention Interrogatories in MO

Issue: Under Missouri law, may a plaintiff seek discovery regarding affirmative defenses pled by a defendant?

            “Missouri discovery rules allow so-called ‘contention interrogatories,’ which allow a party to discover the factual theory of the adversary’s case. Rule 57.01(c).”  State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. 2006).  Furthermore, if a party makes no objection to an interrogatory, it has waived any objection it may otherwise have had.  See Turner v. Fuqua Homes, 742 S.W.2d 603, 610-11 (Mo. App. W.D. 1987).

Rule 57.01(c) provides that the party purporting to answer an interrogatory “shall furnish such information as is available to the party.” Mo. R. Civ. P. 57.01(c) (emphasis added).  Directing an opposing party to refer to the complaint or answer is insufficient:

Rule 55.03(b)(3) provides, inter alia, that by pleading an affirmative defense, a litigant certifies that “the allegations and other factual contentions have evidentiary support, or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” 

Hoover v. Brundage-Bone Concrete Pumping, Inc., 193 S.W.3d 867, 871 (Mo. App. S.D. 2006) (emphasis added) (quoting rule). 

A federal court enforcing the similar federal rule stated:

Parties must provide true, explicit, responsive, complete, and candid answers to interrogatories. If a party is unable to supply the requested information, the party may not simply refuse to answer, but must state under oath that he is unable to provide the information and “set forth the efforts he used to obtain the information.”  It is axiomatic that the purpose […]

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