Legal Memorandum: Reference to Records in an Interrogatory

Issue: Is a party’s reference to other records pursuant to F. R. Civ. P. 33(d) improper if that party has not specified where the requested information is located?

A party “may not simply refer generically to past or future production of documents.”  Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 640 (D. Kan. 1999).  Rule 33(d) provides that a proper interrogatory response is either a complete answer without reference to documents or, if reference is made to documents, a specific identification of which documents contain the answer.  Id. at 640.  The Rules permit cross-referencing as a valid interrogatory response in one instance, and one instance only.  When an interrogatory may be answered from the responding party’s business records and either party could, with a substantially similar burden, find the answers from the records, the responding party may refer to those records in its answer rather than provide a written response.  Fed. R. Civ. P. 33(d). When this option is chosen, however,  the responding party must also specify where in the business records the information is to be found.  “A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as the party served, the records from which the answer may be ascertained.”  Id. (emphasis added).

As the plain language of the Rule provides, to rely on Rule 33(d), the responding party must specify in its interrogatory answer which documents contain the requested information.  “If the party cannot comply with these requirements, it must otherwise answer the interrogatory fully and completely.”  Oleson v. Kmart Corp., 175 F.R.D. 564 (D. Kan. 1997).

As noted, simply referring a requesting […]