[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
A “contention interrogatory” is in the form of “state the facts on which you rely to support your contention that xyz.” They can be very useful. On the other hand, it may be difficult to respond to them before the answering party has had substantial discovery.
In United Assoc. National Pension Fund v. Carvana Co., 2026 WL 2979494 (D. Ariz. Oct. 5, 2026), responses to contention interrogatories became due shortly after the responding party had received substantial discovery. The court wrote: “Given the imminent fact discovery cut-off in this action, Plaintiffs are in a position to meaningfully respond to Defendants’ contention interrogatories.”
“The purpose of discovery is to make trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest extent possible, …and to narrow and clarify the issues in dispute.… In theory, the discovery process should be cooperative and largely unsupervised by the district court…. However, where theory does not reflect real[i]ty—such as when disclosures aren’t made or cooperation breaks down—Rule 37 provides the proper mechanism to compel the disclosure of materials from a party involved in the litigation.” Id. (cleaned up).
The United Assoc. National Pension Fund court wrote:
Contention interrogatories are governed primarily by Rule 33(a)(2), which provides that the court “may order that a contention interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” …. The purpose of contention interrogatories is to narrow the issues that will be addressed at trial and to enable the propounding party to determine the proof required to rebut the respondent’s position….. The Courts generally approve of appropriately timed contention interrogatories as they tend to narrow issues, avoid wasteful preparation, and, it is hoped, expedite a resolution of the litigation.
While courts are reluctant to allow contention interrogatories when the responding party has not yet obtained enough information through discovery to respond, courts recognize that contention interrogatories served after substantial discovery is complete may be appropriate…. This is because the responding party is in a position to provide meaningful answers, their responses would advance the litigation by pinning down issues, and would mean that the party requesting responses would not be left in the dark regarding the responding party’s positions…. Of course, prematurely issued contention interrogatories need not be answered then and there, … but, after discovery has become substantially complete, contention interrogatories become ripe for response…. Thus there is considerable recent authority for the view that the wisest general policy is to defer propounding and answering contention interrogatories until near the end of the discovery period.
Id. at *2 (emphasis added; cleaned up).
The United Assoc. National Pension Fund court found “that requiring responses to Defendants’ contention interrogatories now as opposed to later is warranted based upon the facts of this case and the aforementioned case law. The instant action is not new. This is not a situation where the parties are still attempting to ascertain the ‘lay of the land’ for discovery. No, this case is nearly four years old, with all parties engaging in an aggressive discovery campaign to support their claims or defenses. Based upon the fact that fact discovery closes today, it is not an impermissible assumption to conclude that Plaintiffs are in a position to meaningfully answer Defendants’ contention interrogatories. Moreover, requiring responses to contention interrogatories on or near the deadline for fact discovery is eminently proper considering the aforementioned case law. Finally, the Court finds that compelling Plaintiffs to respond now as opposed to nearly a month later would not inflict the substantial prejudice which Plaintiffs have opined of.” Id. at *3.
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