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Rule 33 – Interrogatories to Parties

May 14, 2021 | Civil Procedure, Ohio

(A) Availability; procedures for use. Any party, without leave of court, may serve upon any other party up to forty written interrogatories to be answered by the party served. The party serving the interrogatories shall serve an electronic copy of the interrogatories on a shareable medium and in an editable format, by electronic mail, or by other means agreed to by the parties. A party who is unable to provide an electronic copy of the interrogatories may seek leave of court to be relieved of this requirement. A party shall not propound more than forty interrogatories to any other party without leave of court. Upon motion, and for good cause shown, the court may extend the number of interrogatories that a party may serve upon another party. For purposes of this rule, any subpart propounded under an interrogatory shall be considered a separate interrogatory.

(1) If the party served is a public or private corporation or a partnership or association, the organization shall choose one or more of its proper employees, officers, or agents to answer the interrogatories, and the employee, officer, or agent shall furnish information as is known or available to the organization.
(2) Interrogatories, without leave of court, may be served upon the plaintiff after commencement of the action and upon any other party after service of the summons and complaint upon the party.
(3) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The party upon whom the interrogatories have been served shall quote each interrogatory immediately preceding the corresponding answer or objection. When the number of interrogatories exceeds forty without leave of court, the party upon whom the interrogatories have been served need only answer or object to the first forty interrogatories. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers and objections within a period designated by the party submitting the interrogatories, not less than twenty-eight days after the service of the interrogatories or within such shorter or longer time as the court may allow.
(B) Scope and use at trial. Interrogatories may relate to any matters that can be inquired into under Civ. R. 26(B), and the answers may be used to the extent permitted by the rules of evidence.

The party calling for such examination shall not thereby be concluded but may rebut it by evidence.

An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, but the court may order that such an interrogatory be answered at a later time, or after designated discovery has been completed, or at a pretrial conference.

(C) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of the business records, or from a compilation, abstract, or summary based on the business records, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to the interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect the records and to make copies of the records or compilations, abstracts, or summaries from the records.

Ohio. Civ.R. 33

Effective:July 1, 1970; amended effective July 1, 1972;July 1, 1989;July 1, 1999;July 1, 2004; amended effective July 1, 2008;July 1, 2009;July 1, 2014;July 1, 2017; amended April 24, 2019, effective July 1, 2019.

Proposed Staff Note (2019 Amendment)

Division (A)

Recognizing the advancements in technology that have occurred since the 2004 amendment to the rule, the amendment to Division (A) changes the description of the type of electronic copy that shall be served from a copy that is “reasonably useable for word processing and provided on computer disk” to a copy “on a shareable medium and in an editable format.”

Staff Note (July 1, 2017 Amendment)

Civ.R. 33(A)(2).

Service of interrogatories. The rule is amended to permit service of interrogatories on parties other than the plaintiff only after service of the summons and complaint upon that party and to disallow service of interrogatories with service of the summons and complaint.

Staff Note (July 1, 2014 Amendments)

Rule 33(A)(3) is amended to correct an oversight in the final publication of the 2012 amendments to the rule. Those prior amendments intended that interrogatories be served by electronic means making separate service of a printed copy unnecessary except for unusual circumstances. The final publication of the 2012 amendment inadvertently retained language from the prior rule stating that the designated time for responses runs from service of “a printed copy of” the interrogatories. The quoted words were not intended to be included and are stricken. A similar correction is made to Civ. R. 36 with respect to requests for admission.

Staff Note (July 1, 2012 Amendment)

The introductory paragraph of Civ.R. 33(A) and the provisions of Civ.R. 33(A)(3) are amended to eliminate difficulties raised by the 2004 amendment to Civ.R. 33(A) that requires a party serving interrogatories to “provide” an electronic copy to the served party. This amendment is enabled by the 2012 amendment to Civ.R. 5(B) which permits documents after the original complaint to be served by electronic means.

Civ.R. 5(A) requires that copies of all documents in an action be “served” on the parties. When the Civ.R. 33 requirement for an electronic copy was established in 2004, there was not provision for “service” by electronic means and it was deemed impractical to require that an electronic copy be “served” by mailing a computer disk or otherwise delivering it by one of the other methods permitted under the existing Civ.R. 5(B). Thus the 2004 amendment to Civ.R. 33 provided that a printed copy must be “served” (by one of the methods listed under Civ.R. 5(B) ), and that an electronic copy also must be “‘provided’ on computer disk, by electronic mail, or by other means agreed to by the parties.” That requirement was problematic not only because of the required dual format but also in determining a party’s recourse when a paper copy was served but an electronic copy was not provided – a problem addressed by the 2009 amendment to Civ.R. 33.

The 2012 amendment simply requires that an electronic copy be served, which can be accomplished electronically under the 2012 amendment to Civ.R. 5(B), or by any other method provided under Civ.R. 5(B). Although service of a paper copy is no longer necessary, it is not prohibited and would be appropriate, for example, when a party who is unable to provide an electronic copy is relieved of that requirement by the court.

Similar amendments have been made to Civ.R. 36 relating to requests for admission.

Staff Note (July 1, 2009 Amendments)

Recognizing that computer word processors have replaced the typewriter, Rule 33 was amended in 2004 to delete the former “minimum one-inch space” requirement in favor of a requirement that the party propounding interrogatories provide the responding party with an electronic copy of the interrogatories for use in preparing a new computer-generated document containing both the questions and the answers. The 2004 amendment continued to require that the printed copy be served, and only required that the electronic copy be “provided” to the party served. The amendment further permitted the electronic copy to be provided by means other than those described in Civ. R. 5(B) for service, specifically including “by electronic mail.” Finally, the amendment permitted the court to relieve a party “who is unable to provide an electronic copy” of the duty to do so.

The 2004 amendment did not specify a consequence for the failure to provide an electronic copy. Because the time designated in the interrogatories for responding runs from service, and only the printed copy is served, the amendment left uncertain the obligations and appropriate remedy for a party served with a printed copy of interrogatories, but not provided with an electronic copy. The 2009 amendment specifies the consequence and appropriate remedy for this situation.

First, the amendment specifies that the electronic copy must be “reasonably useable for word processing” to enable the responding party to transcribe the responses. Next, the amendment confirms that the period for responding, which is designated by the propounding party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy, and that the failure to provide an electronic copy does not alter the response period. However, if before the designated period has expired, the responding party requests that the period be enlarged pursuant to Rule 6(B) because the propounding party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.

The amendment strikes a balance between the respective duties of the parties when a provision which merely makes it easier to transcribe interrogatory answers is not followed. It enforces the duty of the party propounding interrogatories to provide an electronic copy unless otherwise relieved of that obligation by the court. At the same it time makes it clear that a responding party served with a printed copy of interrogatories cannot rely on the failure to receive an electronic copy as reason to do nothing and simply disregard the response time. A Civ. R. 6(B) request for enlargement of the period is an appropriate remedy for a responding party in this situation, and the amendment merely provides guidance in that regard. The rule states that the failure to receive an electronic copy constitutes good cause under Civ. R. 6(B). The amendment also confirms the court’s discretion to relieve a party of the duty to provide an electronic copy when unable to do so, for example, when compliance would be difficult for a pro se party.

Similar amendments were made to Civ. R. 36, addressing the failure to provide an electronic copy of requests for admission.

Staff Note (July 1, 2008 Amendment)

The text of Civ. R. 33(A) is broken into three subparts. This is intended as a stylistic change only to make the material more accessible.

Amendments to Civ. R. 33(C) clarify that the responding party’s option to produce business records in which the information sought in interrogatories may be found includes the option of producing electronically stored information.

Staff Note (July 1, 2004 Amendment)

Rule 33(A) Availability; procedures for use

The 2004 amendment added two provisions governing the service of and response to interrogatories. New language was added to the fourth paragraph of division (A) that requires a responding party to quote the interrogatory immediately preceding the party’s answer or objection. This provision ensures that the court and parties are not required to consult two documents or different parts of the same document in order to review the full text of an interrogatory and the corresponding answer or objection. The provision is similar to the second sentence of S.D. Ohio Civ. R. 26.1.

To facilitate the responding party’s obligation to include the interrogatories and answers or objections in the same document, the first paragraph of division (A) was modified to require the party submitting interrogatories to provide the responding party with both a printed and an electronic copy of the interrogatories. The electronic version must be provided in a format that will enable the responding party to readily include the interrogatories and corresponding answers and objections in the same document without having to retype each interrogatory. A party who is unable to provide an electronic copy of interrogatories may seek leave of court to be relieved of the requirement.

Corresponding amendments were made to Civ. R. 36(A) relative to requests for admission.

Rule 33(D) Form of answers and objections to interrogatories.

The 2004 amendment deleted language that required a party submitting interrogatories to allow sufficient space, not less than one inch, following each interrogatory in which the answering party could type an answer or objection. New language was added to division (A) governing the service of and response to interrogatories.

Staff Note (July 1, 1999 Amendment)

Rule 33(A) Availability, procedures for use

The 1999 amendment was to clarify that any party may file up to forty interrogatories without leave of court. Several non-substantive grammatical changes also were made.

Rule 33(B) Scope and use at trial

The 1999 amendment made grammatical changes only; no substantive change was made.

Rule 33(C) Option to produce business records

The 1999 amendment made grammatical changes only; no substantive change was made.