[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]
Plaintiff Lute sued alleging that three defendants had used excessive force. He served “a Request for Interrogatories rule 33 and Request for Production of Documents rule 34 together….” Lute v. Silva, 2026 WL 1758381 (E.D. Cal. Jun. 18, 2026). Asserting untimely and inadequate responses, he moved to compel.
Defendants contend that Mr. Lute “improperly combined interrogatories and requests for production of documents in a single set that was served on all Defendants.” They claimed that “many of the individual requests themselves also contained both types of requests.”
The court wrote:
Initially, the Court agrees with Defendants that Plaintiff’s discovery requests improperly combined two discovery tools: interrogatories and requests for production of documents. The Federal Rules of Civil Procedure address these tools separately: Rule 33 concerns interrogatories to parties and Rule 34 concerns the production of documents, electronically stored information and tangible things, or entering onto land, for inspection and other purposes. Further, Rule 37 provides that a motion to compel “may be made if … (iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to respond that inspection will be permitted ….” See Fed. R. Civ. P. 37(a)(3)(B) (emphasis added). Thus, the Federal Rules of Civil Procedure support the notion that interrogatories and requests for production of documents are separate discovery tools that should not be combined into a single discovery request. Rather, the party seeking discovery should serve a party or parties with interrogatories separately from any document production request. See, e.g., Pattison v. Sandoval, No. 3:20-cv-00287-MMD-WGC, 2021 WL 12178002, at * (D. Nev. Sept. 8, 2021) (“The court has not been able to uncover any decision which approves of combining Interrogatories and Requests for Production and Requests for Admissions, nor has the undersigned in his experience while practicing law for 35 years and while on the Bench for ten+ years seen discovery authorized by Rules 33, 34 and 36 used in this fashion. The court does not approve of combining discovery requests into one document as may have been suggested by the authors of this ‘Handbook’ ”); Livingston-Gross v. Bank of America N.A., No. 3:09-0105, 2009 WL 1362280, at *1 (M.D. Tenn. May 13, 2009) (clarifying for pro se plaintiff that interrogatories, requests for admissions and requests for production of documents “are separate categories” of discovery); Kettering v. Chaves, No. 07-cv-01575-REB-KLM, 2008 WL 2095527, at *2 (D. Colo. May 12, 2008) (“Plaintiff shall make separate requests for production of documents and interrogatories, numbering each separate request. If a request contains both a document request and an interrogatory, Defendants are not required to respond to it”).
Id. at *3 (emphasis in court decision).
Nevertheless, the court addressed each issue. Id. at *4, passim.
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