Drafting and Responding to Contention Interrogatories: Strategies and Best Practices

Federal Rule of Civil Procedure 33(a)(2) provides that a interrogatory is "not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact." Contention interrogatories may: ask a party to identify or clarify its contentions; ask a party to state all the facts or documents on which a specific contention in a pleading is based; assert a position and ask about how the law applies to facts; or seek the legal basis for a particular contention. Depending on how and when these requests are made, they may or may not be objectionable.

There are both strategic and practical aspects of drafting contention interrogatories. Proponents should anticipate objections and tailor requests to improve the likelihood of obtaining the desired information. A party is not obligated to perform legal research for its opponents. Contention interrogatories can be effective in ferreting out evidence (or the lack of) about essential elements of claims or defenses.

Respondents often argue that contention interrogatories are attempts to discover opposing counsel's mental impressions, legal theories, and conclusions. Courts are required to balance the parties' discovery obligations with the recognition and protection of work product. While counsel is often wary of revealing weaknesses in the case, a precisely worded, narrowly focused contention interrogatory may obtain important concessions.

Listen as this panel of experienced litigators discusses contention interrogatories and how the responses to them can reveal and help inform case strategy, how best to use contention interrogatories, and when and how to object to them.