Advisory Commission Comments to Rules 33.01-33.03

Advisory Commission Comments

Rule 33 deals specifically with written interrogatories to adverse parties. It thus differs from Rule 31 which deals generally with depositions of “any person” upon written interrogatories. Rule 33, providing a simple method of obtaining the “official position” of an adversary on specific questions, would seem to constitute a useful addition to Tennessee procedure.

Rule 33 previously provided that the plaintiff could not serve interrogatories within 30 days after the commencement of the action without obtaining leave of the court. Rule 33.01 now [in 1979] permits interrogatories, without leave of the court, to be served by the plaintiff with or after service of the summons and complaint upon the defendant. [1979.]

Rule 33.03 is new [in 1979] and should permit the more equitable apportionment of the burden of examining voluminous records. [1979.]

33.03: Purely as an option for the party required to respond to interrogatories, Rule 33 has allowed under certain circumstances substituting specification and an opportunity to examine records in place of written answers. If the option is exercised, the discovered party must specify in a realistic and pragmatic fashion the business records from which answers can be obtained. [1984.]

Advisory Commission Comment [2009]

Rule 33.03 is amended to parallel Rule 34.01 by recognizing the importance of electronically stored information. The term “electronically stored information” has the same broad meaning in Rule 33.03 as in Rule 34.01. Much business information is stored only in electronic form; the Rule 33.03 option should be available with respect to such records as well.

Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Rule 33.03 allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Rule 33.03 states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it “as readily as can the party served,” and that the responding party must give the interrogating party a “reasonable opportunity to examine, audit, or inspect” the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. A party that wishes to invoke Rule 33.03 by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding party’s need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33.03.

Advisory Commission Comment [2020]

Rule 33.01 is amended to require that objections to interrogatories be stated with specificity. The amendment is intended to make clear that vague, generalized, or “boilerplate” objections are improper. Instead, objections should be specific as to the grounds for the objection, describing the reason(s) in a manner that will reasonably inform the adverse party as to what aspect of the interrogatory the objection pertains, thereby facilitating the resolution of discovery disputes without the need for judicial intervention.

In addition, the rule is amended to require that any objection or response under Rule 33 make clear whether information is actually being withheld pursuant to that objection, if any. A responding party may object to part of a request, but a party should answer any part of an interrogatory for which no objection is made, making clear which part is being answered.

For example, a responding party may object to a Rule 33 interrogatory as overly broad on the grounds that the time period covered is too long, or that the breadth of sources from which documents are sought is unduly burdensome, providing the specific bases therefore, and further making clear whether the objection is being made in whole or in part. For any such objection or answer that covers only a part of the interrogatory, it should be clear from the objection or answer that the information contained in the answer is being limited to covering the specifically identified time period or sources for which the responding party has no objection.

This amendment should end the confusion that frequently arises when a responding party states several objections, but then still answers the interrogatory by providing information, leaving the requesting party uncertain whether and to what extent relevant and responsive information has been withheld on the basis of the objection. The producing party does not need to provide a detailed description or log of information withheld, but does need to respond in a manner that will alert and inform parties what information is being provided, and what categories or types of information have been withheld pursuant to objection, thereby facilitating an informed discussion of the objection.


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