By Isaac Thorp

You have served interrogatories about the defendant’s construction of a defective roadway. The defendant responds to several of them by stating, “[T]he information sought by this interrogatory may be ascertained by a review of the construction diaries and other records. These documents are available for review, inspection and copying.” You arrive at defense counsel’s office to inspect the documents, and you’re directed to a storage room that contains 200 unlabeled boxes. “Good luck!” says his secretary, as she closes the storage room door. Is this proper?

Under the North Carolina Rules of Civil Procedure, a party may make business records available for inspection and copying in lieu of answering interrogatories where the answer may be ascertained from the records only under specific circumstances. N.C. R. Civ. P. 33(c). First, the option of producing business records in lieu of answering interrogatories is available only if “the burden of deriving or asserting the answer is substantially the same for the party serving the interrogatory as for the parties served.” Id. Second, the party offering the documents must “specify the records from which the answer may be derived or ascertained” and “afford the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.” Id. Third, Rule 33(c) was amended in 2011 to require that a “specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.” Id.

Rule 33(c), as amended, now substantially mirrors its counterpart in Federal Civil Procedure Rule 33(d). Several federal cases interpret the obligations this language imposes. In T.N. Taube Corporation v. Marine Midland Mortgage Corporation, 136 F.R.D. 449, 454, 19 Fed.R.Serv. 3rd 698 (W.D.N.C. 1991), the defendant referenced business records which it offered to make available for inspection in lieu of interrogatory answers. The defendant did not specify which of the several thousand records were likely to contain answers to plaintiff’s interrogatories.

The plaintiff filed a motion to compel. The court found that the defendant improperly invoked the use of Fed. R. Civ. Pro. 33(c) (now Rule 33(d)). It first determined that the burden would not be substantially the same for plaintiff to ascertain interrogatory answers from the defendant’s documents, because the defendant was familiar with its own records and methods of organization and the plaintiff was not: “A respondent may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records.” T.N. Taube Corp., 136 F.R.D. at 455. The court also admonished the defendant for its failure to meet Rule 33(c)’s requirement of specificity.

The final sentence of Rule 33(c) is meant to “make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived.” American Rockwool v. Owens–Corning Fiberglas Corp., 109 F.R.D. 263, 266 (E.D.N.C. 1985) (quoting Fed.R.Civ.P. 33(c) advisory committee’s note). As such, “directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery.” Id.; see also Blake Associates, Inc. v. Omni Spectra, Inc., 118 F.R.D. 283, 289 (D.Mass. 1988) (reply that party will make available “documents responsive to this interrogatory” is “patently insufficient” under Rule 33(c)).

Although the court declined to impose sanctions, it warned that if the defendant continued to thwart plaintiff’s legitimate discovery attempts, “the Court will not hesitate to award Plaintiff expenses and award appropriate sanctions.” T.N. Taube Corp., 136 F.R.D. at 457.

Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486 (W.D.N.C. 1998), involved a desegregation lawsuit in which plaintiff sought through discovery information about the school system’s racial composition, student assignment, testing and achievement. In response to interrogatories, the defendant referenced business files which it made available for inspection and copying. The files were contained scattershot among approximately 200 unlabeled boxes.

Plaintiff filed a motion to compel discovery. The defendant contended the burden of ascertaining the interrogatory answers from a review of the documents was substantially the same for both parties. It also contended that it had satisfied the requirement of specifically identifying the documents as required by Rule 33(d). The court disagreed: “A party that responds to an interrogatory under the provisions of 33(d) abuses this option when the responding party simply directs the interrogating party to a mass of business records or offers to make all of their records generally available.”  Capacchione, 182 F.R.D. at 490.

The court also dismissed the defendant’s contention that it specifically identified the documents that contained the requested information and directed that “at a minimum, responses shall identify the particular box containing such documents. Responses also shall identify, to the extent possible, the particular file(s) in which the information is found, for example, by date, file number, folder number, and so on.” Id., 182 F.R.D. at 491. The defendant was also required to instruct the plaintiff about how to efficiently retrieve the requested information in the most efficient manner, and to provide all abstracts, indexes or summaries that would aid plaintiff in the process.

In Herdlein Technologies, Inc. v. Century Contractors, Inc., et al., 147 F.R.D 103, 25 Fed.R.Serv. 3rd 1370 (W.D.N.C. 1993), the plaintiff, in lieu of answering defendant’s interrogatories, responded by stating that the information sought was available from the approximately 800 documents the defendant had already produced. The plaintiff did not specify which of the 800 documents contained the information requested by the interrogatories.

The defendant filed a motion to compel discovery. The court found that the plaintiff did not respond to the defendant’s interrogatories “with the candor and specificity that the rules of discovery require,” Herdlein, 147 F.R.D. at 105. The court also observed “that discovery should not merely result in a transfer of information among the parties, but should also serve to organize the information and bind the responding party to its responses so that the interrogating party may use the response in a trial setting.” Id.

Never let your opponent unfairly disadvantage your client and prejudice your ability to find the facts through a misapplication of Rule 33(c). I’ve made that mistake, and although our clients ultimately prevailed, I will never make it again.