405.04(b)    Nature of Responses

Fed. R. Civ. P. 33(b)(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

Fed. R. Civ. P. 33(b)(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

Fed. R. Civ. P. 33(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

  • (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
  • (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

Ordinarily, a party on which interrogatories have been served should respond to them by stating, with respect to each interrogatory, either an answer or an objection. If an interrogatory is answered, the answer must be made separately and fully, in writing under oath. If an interrogatory is objected to, the reasons for objection must be specifically stated in lieu of an answer. [ Note 1.] In responding to interrogatories, "general objections" or boilerplate "specific objections" are not proper. Objections, if any, must be specifically asserted in response to each interrogatory against which they are interposed, and the ground or basis for each objection must be stated with specificity. [ Note 2.] The Board generally looks with disfavor on the practice of responding to written discovery by inserting repeated or "boilerplate" lists of objections which fail to set forth the ground or basis for the objection with respect to the interrogatory at issue. It is incumbent upon a party who has been served with interrogatories to respond by articulating its objections with particularity to those interrogatories (or parts of interrogatories) which it believes to be objectionable, and by providing the information sought in those interrogatories (or parts of interrogatories) which it believes to be proper. [ Note 3.] The burden of persuasion is on the objecting party to show that an interrogatory or part thereof should not be answered. [ Note 4.] If a responding party believes that the number of interrogatories served exceeds the limit specified in 37 C.F.R. § 2.120(d), and wishes to object to the interrogatories on this basis, the party must, within the time for, and instead of, serving answers and specific objections to the interrogatories, serve a general objection on the ground of their excessive number. [ Note 5.] TBMP § 405.03(e).

The Board prefers that the responding party reproduce each interrogatory immediately preceding the answer or objection thereto.

In some cases, pursuant to Fed. R. Civ. P. 33(d), the information sought in an interrogatory may be derived or ascertained from the business records of the responding party, or from an examination, audit, or inspection of those business records (including a compilation, abstract, or summary thereof) when the burden of deriving or ascertaining the information is substantially the same for the propounding party as for the responding party. In those cases, the responding party may answer the interrogatory by itself providing, in its written answer to the interrogatory, the information sought. Alternatively, the responding party may answer the interrogatory by specifying the records from which the information may be derived or ascertained, and affording to the propounding party reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries. If the responding party elects to answer an interrogatory by specifying and producing business records, the specification must be in sufficient detail to permit the propounding party to locate and identify, as readily as can the responding party, the records from which the answer may be ascertained. [ Note 6.]

A party seeking to invoke Fed. R. Civ. P. 33(d) with regard to electronic information may be required to provide some combination of technical support, information on application software, or other assistance to the requesting party. [ Note 7.] If direct access to its electronic information system is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to an interrogatory, the answering party may determine that its need for privacy or confidentiality requires it to derive or ascertain the answer itself rather than invoke Fed. R. Civ. P. 33(d). [ Note 8.]

A responding party cannot simultaneously invoke the option to produce business records and claim the protection of a privilege as to the documents. [ Note 9.]

It is generally inappropriate for a party to respond to interrogatories by filing a motion attacking them, such as a motion to strike, a motion to suppress, a motion for a protective order, etc. [ Note 10.] Rather, the party ordinarily should respond by answering those interrogatories that it believes to be proper and stating its objections to those that it believes to be improper. TBMP § 410.

For information regarding a party’s duty to supplement responses to interrogatories, see TBMP § 408.03.

NOTES:

 1.   Fed. R. Civ. P. 33(b)(2), 33(b)(4).

 2.   Fed. R. Civ. P. 33(b)(4); Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc., 2019 USPQ2d 158663, at *4 (TTAB 2019) (responding party may not rely on conclusory statements when objecting but must specifically state the underlying basis for the objection); Amazon Technologies, Inc. v. Wax, 93 USPQ2d 1702, 1704 (TTAB 2009) (objections to interrogatories must be made with particularity); Medtronic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TTAB 1984) (same); see also 8B C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2173 (3d ed. April 2021 Update).

 3.   Fed. R. Civ. P. 33(b)(4); Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc., 2019 USPQ2d 158663, at *4 (TTAB 2019); Amazon Technologies, Inc. v. Wax, 93 USPQ2d 1702, 1704 (TTAB 2009); Medtronic, Inc. v. Pacesetter Systems, Inc., 222 USPQ 80, 83 (TTAB 1984); see also 8B C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2173 (3d ed. April 2021 Update).

 4.   Medtronic, Inc. v. Pacesetter Sys., Inc., 222 USPQ 80, 83 (TTAB 1984); Volkswagenwerk Aktiengesellschaft v. MTD Products Inc., 181 USPQ 471, 472 (TTAB 1974); see also 8B C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2173 (3d ed. April 2021 Update).

 5.   37 C.F.R. § 2.120(d). Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc., 2019 USPQ2d 158663, at *3 (TTAB 2019); Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1385 (TTAB 2016).

 6.   Fed. R. Civ. P. 33(d); Johnson & Johnson v. Obschestvo s ogranitchennoy; otvetstvennostiu "WDS," 95 USPQ2d 1567, 1570 (TTAB 2010) (responding party not entitled to invoke Fed. R. Civ. P. 33(d) by producing business records in Russian language with no English translation); No Fear Inc. v. Rule, 54 USPQ2d 1551, 1555 (TTAB 2000) (responding party may not merely agree to provide access to voluminous records which may contain responsive information); Jain v. Ramparts, Inc., 49 USPQ2d 1429, 1435 (TTAB 1998) (identifying prerequisites for exercising the option to produce business records in lieu of answering interrogatories); see also Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc., 2019 USPQ2d 158663, at *8-9 (TTAB 2019) (same).

 7.   Fed. R. Civ. P. 33 Committee Notes on Rules – 2006 Amendment.

 8.   Fed. R. Civ. P. 33 Committee Notes on Rules – 2006 Amendment.

 9.   See No Fear Inc. v. Rule, 54 USPQ2d 1551, 1554 (TTAB 2000); 8B C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE CIVIL § 2178 (3d ed. April 2021 Update).

 10.   Emilio Pucci International BV v. Sachdev, 118 USPQ2d 1383, 1385 (TTAB 2016).