Interrogatories under the Florida Rules of Civil Procedure

What are Interrogatories?

Interrogatories are one of the tools used in civil litigation to obtain sworn testimony from a party to the litigation. They are written questions and answers in sentence form, which must be answered under oath by the party responding to them. In Florida, they are governed by Rule 1.340, Fla. R. Civ. P., which contains guidelines for the number of interrogatories that can be served, how they are to be served, and the rules for responding to them. In some collections cases, there is an option of sending out supplemental interrogatories. Often, interrogatories are used as a routine tool to obtain general information about the other party in any litigation such as how many witnesses you have , other parties that have the same knowledge as the responding party, what documents you have, jumping off points for a deposition, or for requests to produce. In a Florida foreclosure case, this can include such things as whether the property has a mortgage on it, when that mortgage was obtained, whether certain assignments have been recorded, where the original note is kept, a demand for payment of the debt, the amount of the debt, and a statement of what the amount of the debt is and at what date that amount was effective. Of note – interrogatories can also be used on witnesses who are not parties to the litigation.

Specific Rules in Florida regarding Interrogatories

The use of interrogatories in Florida is governed by Florida Rule of Civil Procedure 1.340. Similar to the Federal Rules, Florida’s rules limit each party to serving a total of 30 written interrogatories on each other party. In lieu of or in addition to the 30 permitted interrogatories, a party may serve additional interrogatories upon the other party or parties with leave of court. Florida courts are required to allow a responding party reasonable time to answer any interrogatory, especially if such interrogatory has multiple sub-parts. However, in a personal injury claim, only a single set of 30 interrogatories are allowed and typically one long continuous interrogatory that contains multiple sub-parts is used to serve as the "one set" of interrogatories. Courts disfavor the use of sub-part interrogatories, and most courts will find the vast majority of sub-part interrogatories to not follow the intent of the Rules and thus be improper. There are exceptions, of course, allowing for some "sub-organization" of interrogatories under Florida’s rules to try to avoid the sub-parts being considered improper subpart interrogatories for the purpose of the 30-but-one interrogatories rule. The response to an interrogatory must state that it is a response to an interrogatory rather than a request for admission. It also must fully disclose the information sought unless the interrogatory seeks privileged information, is a statement or opinion, the application of the law to fact, or is overly burdensome. Any portion of the answer to an interrogatory not objected to is binding upon the person answering the interrogatory and may be used by any party for any purpose at any time up until the trial of the case.

How to Draft Effective Interrogatories

In drafting interrogatories, parties should be cognizant of Florida’s rules regarding usage. Specifically, Florida Rule of Civil Procedure 1.340(b) prohibits the use of "subparts." Instead, interrogatories should be numbered consecutively, regardless of subparts. The rule reads as follows: Every interrogatory shall be answered separately and fully in writing under oath. Those names and addresses of witnesses and other persons shall, to the extent possible, be given at the time. Answers are to be as specific and detailed as the information reasonably available to the party requires. Florida courts have interpreted a subpart to be a question that tests the same subject as the preceding question within the same interrogatory (e.g., an interrogatory asking "do you have any weapons?" and then a subpart following that asks "do you have any handguns?"). To remedy the subpart issue, however, parties can combine their interrogatories. For example, "Do you own any firearms or weapons of any kind? If so, please indicate all of those for which you have personal responsibility." However, care must be taken because while interrogatories cannot be stated with "subparts," interrogatories can be stated with separate parts. For example, "do you own any guns or knives?" is acceptable, but "do you own any guns or knives? If so, please set out the make and model of each" is not acceptable. Stated another way, a question with separate parts is acceptable if it poses separate but related questions. A question with subparts is not acceptable if it elicits answers that will require separate answers to satisfy the subparts. A list of forced choices or "yes" and "no" answers are considered subparts. To assist in pinpointing if a subpart exists, keep in mind that the rephrasing of the question to be separately answered in the form of a subpart is an unacceptable practice and will most likely elicit objection from the other party. In addition to subparts, interrogatories should be limited to thirty. For interrogatories propounded on a party the general rule is that the propounding party may serve up to thirty interrogatories on the other. However, like all rules, there are exceptions that should be explored. For example, Rule 1.340(b) also permits an additional ten interrogatories in a case where (1) a party is seeking the name of all witnesses, (2) a party is asserting a claim for non-economic damages, or (3) a party is claiming mental or emotional pain and suffering. It is important to be cautious when drafting interrogatories with which the party intends to rely on in court later. Standard interrogatories that are characteristic for a particular area of law provide adequate space for the responding party to provide information about the facts of the case. Courts generally do not accept oppositions as valid objections, however. Both parties should attempt to work collaboratively at the beginning of the litigation because this negotiation generally produces satisfactory results for both sides. On the other hand, simply serving multiple interrogatories will be ineffective at getting the answers required. A better approach is to be more focused and tailored to the specifics of the case at hand. A helpful hint is to request that the party to furnish the documents to you in accordance with the numbered requests, if not already produced as attachments to the interrogatories. It is also important to remember that "[a] party objecting to an interrogatory or a request for production must be specific" and that "the objection must grow out of the [discovery] being sought."

Responding to Interrogatories in Florida

The rules governing the responding parties to a set of interrogatories (interrogatories being the written list of questions and answers exchanged between litigants) are often different for the propounding party. The Florida Rules of Civil Procedure, the Florida Evidence Code and authorities on Florida corporate law support the assertion that while a party answering interrogatories has certain obligations, the propounding party has additional burdens.
Obligations of Parties Responding to Interrogatories:
Parties responding to appropriate interrogatories have an affirmative duty to adequately respond to the interrogatories (in this case, these would be questions) served upon a party in accordance with their obligation under Florida Rule of Civil Procedure 1.340(a). Florida Rule of Civil Procedure 1.340b states, "the answers may be used as fully and to the same extent as permitted at the trial of the cause." Florida Rule 1.340(c) specifically provides for the party answering the interrogatories to address the following:
A. Each numbered paragraph of the interrogatories shall commence on a separate page. The answers shall be identified numerically on the Answer Exhibit, following the number of the interrogatory.’
B. Each answer must be made separately and fully in conformity with the requirements of Code of Civil Procedure Rule 1.340 and should be full and responsive. The answering party shall set forth information within its knowledge or that of its representatives and agents. Information in the form of opinion or contention may be presented as such and need not be stated as an evidentiary fact.
C. If the responding party is unable to answer the interrogatories in full, the responding party shall so state in the answers and shall answer to the limits of the party’s knowledge or information. A general objection to topics of questions shall not suffice.
D. The word "identify" or its equivalent as used in these interrogatories shall be deemed to be followed by the words "by stating (a) the name, address, and telephone number of the person, and (b) the reservations or businesses in which the person is involved." At no time shall this Affirmative Defense be grounded on the use of oral discover or the production of documents at a later date.
The interrogatory responses and the method used in presenting the responses are statutorily and determinatively governed by the referenced rule. In addition to making a proper response to the interrogatories themselves, its wise to limit the responding parties objections to those outlined in Florida Rules of Civil Procedure 1.340 (b) and (c). Otherwise, the responding party may find itself under the scrutiny of the court, and may be limited in its future ability to respond to the interrogatories.
Further, a party responding to a set of requests for admission must do so within thirty (30) days of service of the request unless the court shortens or extends the time. The party responding to the requests for admission must do so in accordance with Florida Rule of Civil Procedure 1.370(a), (b). In a similar fashion, the party must sign the response to the request for admissions. A failure to properly respond to either party interrogatories and requests for admission may result in the responding party being deemed to have admitted the substance of the request or interrogatories. This consequence is something that can severely and often adversely affect the responding party at trial.

Objections and Waivers

The right use of interrogatories is an essential method of discovery at your disposal and getting them wrong can really hurt your case. Below are some common objections for interrogatories that your attorney should be aware of and prepared to handle.
It is not uncommon for the person answering the interrogatory to use objections that are too vague, over-broad, or meaningless. For example, if you ask what documents the opposing party has in support of its claims or defenses and the response is "all of them," that answer is meaningless. If the party does not provide you with specifics, you will not know the scope of its documents.
Florida courts have held that an interrogatory must only be limited by relevance to the case. The "relevance" standard does not permit a party to refuse to answer an interrogatory on the basis that the information sought is irrelevant. Florida Rule of Civil Procedure 1.280(b)(1) states that the information does not have to be admissible to be discoverable. Moreover, an interrogatory may not be objected to on the grounds that it asks for a legal opinion or contention, unless the interrogatory requests information as to the application of law to facts.
For example, the most common objection used is "relevance." Florida courts have determined that the "relevance" standard does not permit a party to refuse to disclose information that is relevant to the case unless the requesting party would clearly benefit from that information. In other words, the court will allow the disclosure of information that is likely to lead to relevant information. Thus, even though some answers to interrogatories may not be ones that the party objectant views as the "smoking gun," they are still permissible. This has become especially true in cases involving competing experts. In Florida, expert witnesses effectively rely on the documentation provided to them by the parties and if a party is withholding damaging documents from an expert , that expert’s opinions may very well be based on incomplete or inaccurate information.
Privilege is a principle that protects certain types of information. There is a list of privilege objections under the Florida Rules of Civil Procedure. For example, the attorney-client privilege is a common privilege that protects certain communications between clients and their lawyers from being disclosed. If you communicate with your attorney about the case in any manner, you should expect a privilege objection if that information is requested. Remember that communications with other attorneys, those retained by you or your insurance company, may or may not be protected by the attorney-client privilege, depending on particular circumstances. Your own non-lawyer legal opinions about a case are absolutely not privileged and must be answered. Other privileges apply in different situations, such as the existence of a shared defense group or the work product doctrine.
A mere assertion of privilege is insufficient if it is not clear from the face of the objection or the answer whether the responding party considers itself required to answer or believes it has a right to withhold the requested information. A proper objection must specifically describe the materials subject to the objection. If the objectant believes that too much information is requested, the objectant must describe the burden or overly broad nature of the request.
A corollary to privilege objections relates to "core" litigation materials or work product. Core materials, e.g., an attorney’s or party’s notes, identification of witnesses or witnesses’ opinions, must be identified and withheld. Requests for such material covered under the attorney-client privilege or the work product doctrine must identify the nature of the records, the author, and the date of the documents so that there can be no question that the court can identify the documents and make a reasoned decision as to whether the refusal to produce them was justified.

Using Interrogatories Strategically

Skilled litigators in Florida use interrogatories to their client’s advantage in different substantive areas of law, utilizing these devices for issues such as establishing jurisdiction, preserving affirmative defenses, narrowing the issues, and exposing weaknesses in an opponent’s case. Interrogatories are also utilized to lock in information through sworn answers, known as "verification," that can later be used at trial. For instance, if a party identifies an affirmative defense in his answers to interrogatories, this may be used to demonstrate that the defendant did not waive this defense by failing to include it in his pleadings. By doing so, the defense cannot be deemed waived, and can be relied upon and used at trial or dispositive motion practice. A similar result can occur under certain circumstances with respect to damages. For example, if a plaintiff identifies damages in a sworn response to an interrogatory, he has locked in this information for evidentiary purposes at trial.
Interrogatories are also useful to force an opponent to reveal more information about their case and diminish any tactical advantages they may presumably have. This is referred to as "tilting the playing field" in your favor. From a tactical advantage standpoint, interrogatories are especially useful in general negligence actions and commercial litigation contexts. In negligence actions, interrogatories can uncover evidence from a perspective standpoint to show who the court should ultimately place more weight on—namely whether it is the defendant’s fault or the plaintiff’s fault for the injuries or damages claimed. In commercial or business litigation, interrogatories can expose evidence to show bad faith trading practices and other wrongful conduct by the opponent or to establish that a violation of a fiduciary duty occurred in a commercial context.
Insurers and risk managers can also utilize interrogatories to further their claim against a defendant and try to limit or preserve defenses that could exonerate the defendant’s liability. In insurance coverage disputes, interrogatories can be used in the context of fraudulent or misrepresentation claims, in order to try to deny or limit coverage. For instance, if the insurer knows that a particular fact was present when the policy was being applied for, but the insured failed to disclose this information, they may take advantage of this information through a strategic abuse of litigation tools like interrogatories to reframe any negative defenses.
There are a variety of ways litigators can use interrogatories to gain an advantage for their client’s position, depending on the individual case. While certain aspects of the strategic uses of interrogatories are by their nature more generalized, if a litigant is trying to figure out how to utilize interrogatories to their advantage, they should do so on a case by case basis, depending on the needs and circumstances of the litigation they are engaged in.

Recent Case Law and Developments

Recent case law has confirmed that discovery remains the preferred mechanism for developing facts relevant to claims or defenses in a lawsuit. In Broadspire v. Wimberly, 150 So.3d 1268 (Fla. 1st DCA 2014), the First District Court of Appeal held that interrogatories differed from deposition testimony as a matter of law and, because they are not court testimony, could not be used to advance the interest of the party seeking the inferences to be drawn from the answers provided. In that case, a parking lot was the site of a shooting which injured the plaintiff. Plaintiff filed a products liability action against a number of defendants relating to the safety of the shooting range and the products which were sold at the site. Plaintiff did not develop any record evidence at trial and argued exclusively for the first time on appeal that the defendant’s conduct should be subjected to a strict liability standard rather than the negligence standard urged by the defendant. The First DCA rejected the plaintiff’s argument and found that the interrogatory which plaintiff claims established a strict liability standard did not qualify as court testimony or a judicial admission , and could not be used to prove any material fact in issue. The Court explained: Interrogatory responses cannot be used to support a motion for summary judgment. Travelers Indem. Co. v. Gottsfedder, 732 So. 2d 1144, 1146 (Fla. 1st DCA 1999). In Gottsfedder, we reasoned that interrogatory responses are not judicial admissions, but purely evidentiary admissions, and therefore cannot supplant testimonial evidence to establish summary judgment as a matter of law. Id. (citing Baguhl v. Baguhl, 660 So. 2d 1126, 1128 (Fla. 2d DCA 1995)); see also Taylor v. Shelter Life Ins. Co., 869 So. 2d 750, 753 (Fla. 5th DCA 2004) (finding interrogatory responses not equivalent to judicial admissions under section 90.204(2), Florida Statutes (2000)).
Thus, it appears dogged reliance on interrogatories is a practice best left to the past. As the case law illustrates, mere answers to written questions are not guaranteed to advance your cause and, in the end, may well prove to be an exercise in chasing your own tail.