[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Red-D-Arc Inc. v AMP 2 LLC, 2025 WL 26648 (M.D. Fl. Jan. 3, 2025), was a breach of contract action.
Plaintiff contended that, in response to plaintiff’s interrogatories, “Defendants improperly refer to hundreds of pages of documents, which is non-responsive, evasive, and in violation of Federal Rule of Civil Procedure 33(d).”
The Red-D-Arc court wrote: “In response, Defendants argue that their reference to documents produced to Plaintiff fully complies with Rule 33(d), and that the documents specifically identify information requested in the Interrogatories.”
Federal Rule of Civil Procedure 33(d) provides that in certain circumstances a party may answer an interrogatory by referring to that party’s business records, specifically when “the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served.”
Reliance on Rule 33(d) is appropriate when the interrogatory requests objective facts that are obvious from the specified documents, but is generally inappropriate when the interrogatory asks a party to state its contentions or to state facts supporting its allegations.
Red-D-Arc Inc. v AMP 2 LLC, 2025 WL 26648, at *2 (M.D. Fl. Jan. 3, 2025).
The Red-D-Arc court wrote that:
When the responding party relies on Rule 33(d) to respond to an interrogatory, the party seeking discovery must make a prima facie showing that the use of Rule 33(d) is somehow inadequate to the task of answering the discovery, whether because the information is not fully contained in the documents, is too difficult to extract, or other such reasons.… Once the seeking party has made a prima facie showing, the burden shifts to the responding party to justify its use of Rule 33(d).
Id. at *1 (cleaned up; citations omitted).
Once the burden is shifted:
The producing party must satisfy a number of factors in order to meet its justification burden. First, it must show that a review of the documents will actually reveal answers to the interrogatories…. Second, the producing party is required to specify for each interrogatory the actual documents where [the] information will be found. … Moreover, in order for Rule 33(d) to apply, the burden of ascertaining the answer from the documents at issue must be substantially the same for either party. When one party is substantially more familiar with the documents at issue than the other, the burden will generally not be the same…. Reliance on Rule 33(d) is appropriate when the interrogatory requests objective facts that are obvious from the specified documents, but is generally inappropriate when the interrogatory asks a party to state its contentions or to state facts supporting its allegations.
Id. at *2 (cleaned up; citations omitted).
The Red-D-Arc court reviewed the discovery and determined that plaintiff had made a prima facie showing of noncompliance with Rule 33(d) – “in particular that the information is not fully contained in the documents provided.” Id. at *2. In part:
The invoices [relied on by Defendants] were generated by Plaintiff and contain various annotations apparently made by someone on behalf of Defendants. But the annotations consist in large part of illegible handwritten notes, portions of the invoices are circled without explanation, and some of the invoices are covered by post-it notes that also make no sense. And the text messages are also largely unreadable. Yet Defendants contend that all 351 pages of invoices and all 52 pages of text messages are responsive to all of the Interrogatories at issue.
The Court disagrees. Although these invoices and text messages do provide some information, they clearly do not provide all of the information sought by Plaintiff…. In other words, these brief annotations and unreadable texts do not, by themselves, support Defendants’ contentions or allegations in this case. Moreover, the Court finds it hard to believe that the same 351 invoices and the same 52 pages of text messages provide complete responses to every single Interrogatory at issue.
Id.
The court added:
[T]he Court does not find that the burden of ascertaining the answers from the documents at issue is substantially the same for both sides. As noted above, the text messages and the annotations on the invoices are in large part undecipherable, thereby precluding Plaintiff (as well as the Court) from gleaning any information from these documents. In addition, the Interrogatories are directed towards Defendants’ claims of defective/nonconforming products, breaches of warranties and contractual obligations, and incorrect charges. Such information is in the hands of Defendants – indeed they would be required to answer questions about these issues at deposition.
Id.
Defendants contended that “use of Rule 33(d) is appropriate where an interrogatory would require a ‘party to engage in burdensome or expensive research into his own business records in order to give an answer.’” Id. at n. 2. However, the Red-D-Arc court found insufficient evidence to support the application of that principle.
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