Unless authorized by the Court, hearings may not be served before the meeting of the parties in accordance with Rule 26 (f). The second sentence of the second paragraph of section 33, as amended, concerns the case where a party claims to want to serve a party on a hearing or vice versa. It was decided that oral examination of a party after the presentation and response to the hearings would be admissible. Howard v State Marine Corp. (S.D.N.Y. 1940) 4 Fed.Rules Serv. 33.62, Case 1, 1 F.R.D. 499; Stevens v. Minder Construction Co.
(S.D.N.Y. 1943) 7 Fed.Rules Serv. 30B.31, case 2. However, objections have been raised to examinations served on a party after oral testimony. McNally v. Simons (S.D.N.Y. 1940) 3 Fed.Rules Serv. 33.61, case 1, 1 F.R.D. 254; Currier v.
Currier (S.D.N.Y. 1942) 6 Fed.Rules Serv. 33.61, case 1. Section 33, as amended, allows either hearings following a statement or testimony after hearings. It may be desirable or necessary to obtain additional information through the inexpensive method of interrogation if a statement has already been made. The party to be heard may, however, apply to the court for a protection order under Rule 30(b) if the additional testimony or hearing would be coercive or unfair to the party requesting it. Subsection (c). The Committee`s attention is drawn to the fact that parties served with hearings have sometimes responded by referring the questioning party to various business documents or by offering to provide all of their records, justifying the response by the option provided in this subdivision. Such practices constitute an abuse of the option.
A party that is authorized under the provisions of this Subdivision to offer documents for inspection purposes instead of responding to a hearing should offer them in a manner that allows the party the same direct and cost-effective access as it has. Where the requested information is available in the form of compilations, summaries or summaries made available to the respondent, it should be made available to the party at the hearing. The last sentence is added to clarify that a defendant is required to indicate, by category and by place, the documents from which answers to hearings can be drawn. Each party may serve 25 hearings on the other party, but must obtain permission from the court (or a provision of the opposing party) to serve a larger number. Parties cannot escape this presumed limitation by grouping issues into “subparts” seeking information on separate topics. However, a question relating to communications of a particular type should be treated as a single issue, even if it requires that the date, place, attendees and content be indicated separately for each of those communications. This rule reproduces the content of [former] rule 58 on fairness (discovery – hearings – inspection and production of documents – admission of performance or authenticity), with amendments to comply with these rules. (3) If objections are raised, it is for the examining party to obtain mandatory answers in accordance with Rule 37(a), during which the court forwards the objections.
The modification of the future burden does not affect the existing obligation of an opposing party to give reasons for its objections. For example, Pressley v. Boehlke, 33 F.R.D. 316 (W.D.N.C. 1963). If the investigating party claims that a reply is incomplete or evasive, it may again refer to Article 37(a) to remedy the situation and must add this claim to its request for the objection to be quashed. There is no need for parties to consult informally on their disagreements, but the new procedure should encourage consultation, and the court may require this through local regulations. (2) Scope. A hearing may be held on any matter that may be investigated under rule 26(b). A hearing is objectionable not only because it seeks an opinion or allegation of the facts or application of the law to the facts, but the court may order that it not be necessary to respond to the hearing until the designated discovery is completed or until a preliminary hearing or at any other time. The proposed changes are similar to those adopted by California in 1961. See Calif.Code Civ.Proc.
§2030(a). The experience of the Los Angeles Superior Court is informally reported as evidence that the California amendment resulted in a significant reduction in judicial requests related to interrogations. Rhode Island is taking a similar approach. See R. 33, R.I.R.Civ.Proc. Official draft, p. 74 (Boston Law Book Co.). Subsection (b). There are many conflicting decisions on whether and to what extent interrogations can be limited to “questions of fact” or provoke opinions, allegations and legal conclusions. Compare, for example, Payer, Hewitt & Co.
v. Bellanca Corp., 26 F.R.D. 219 (D.Del. 1960) (bad opinions); Zinsky v. New York Central R.R., 36 F.R.D. 680 (N.D.Ohio 1964) (good opinion or factual statement, but wrong legal theory); United States v. Carter Products, Inc., 28 F.R.D. 373 (S.D.N.Y. 1961) (factual allegations and bad legal theories) with Taylor v. Sound Steamship Lines, Inc., 100 F.Supp. 388 (D.Conn.
1951) (good opinions), Bynum v. United States, 36 F.R.D. 14 (E.D.La. 1964) (allegations of fact constituting negligence). For a list of the many authorities in conflict, see 4 Moore`s Federal Practice 33.17 (2nd edition 1966); 2A Barron & Holtzoff, Federal Practice and Procedure §768 (ed. Wright 1961). Some would insist that the complainant not be used as an interrogation with the complaint. They fear that routine practice may be invited, with form-based investigations accompanying most complaints. Basically, they believe that, since very general complaints are admissible in today`s pleadings, it is right that the accused should have the right to take the initiative to serve the examinations. (These views also apply to section 36.) The amendment to article 33 rejects these views and allows both parties to make the prior communication, each being free to obtain the information it needs in relation to the case.
These provisions must be read in conjunction with Rule 26(g), which empowers the tribunal to impose sanctions on a party and counsel who raise an unfounded objection to a hearing. Paragraph 4 is added to clarify that objections must be specifically reasoned and that undisclosed or premature grounds for opposition are generally removed. See also the provisions of revised Rule 26(b)(5), which require a party to indicate when it must refuse to disclose information as part of a lien or as process preparation material. The obligation of a party to complete its answers to questions is newly regulated by Rule 26(e). Purpose of the revision. The objective of this review is to reduce the frequency of interrogation practices and increase efficiency. The revision is based on experience with local regulations. For simplicity, subdivision (a) is divided into two subdivisions and the other subdivisions are renumbered.
The procedures now provided for in article 33 appear to be designed to encourage objections and judicial remedies. The deadlines for responding to hearings – 15 days for responses and 10 days for objections – are too short. Columbia`s investigation shows that late responses to interrogations are common, practically expected. The same was reported in Speck, supra, 60 Yale L.J. 1132, 1144. Time pressure tends to encourage objections in order to buy time to respond. Particular difficulties may arise when using electronically stored information, either because of its form or because it depends on a particular computer system. Rule 33(d) allows a responding party to substitute a reply with access to electronically stored documents or information only if the burden of the reply is substantially the same for both parties.
Rule 33(d) states that a party who chooses to respond to a hearing by providing electronically stored information must ensure that the party to the hearing can locate and identify it “as easily as the party notified” and that the responding party must give the party to the hearing a “reasonable opportunity to examine the information; to examine or inspect”.