Force your TCPA defendant to sign his interrogatory lies under oath

Your telephone consumer protection act lawsuit is likely to involve you propounding interrogatories to your TCPA defendant - a written question or set of questions, sent by one party in a lawsuit to another, that the recipient must answer under oath.

The under oath part comes from FRCP 33(b)(3). (state court will follow state civil rules).

Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

Your TCPA defendant might well want to tell lies but not tell them under oath. Remember this guy?

He tried to sign 5 interrogatory answers with "I declare that I answered the above question to the best of my knowledge, information and belief." First, note that he only attests to the "above question", not the "above five questions" and it isn't under oath.

These are the sorts of games that telemarketers play.

If your TCPA defendant won't fix it, take it to the judge, who ordered Mr. Delfgauw:

Defendant’s signature fails to comply with Federal Rule of Civil Procedure 33(b)(3), which requires that answers to interrogatories must be produced “under oath.” The response is not signed under penalty of perjury and only attests that Defendant answered “to the best of my knowledge.” (Dkt. No. 489-1 at 8.) See Deseret Mgmt. Corp. v. United States, 75 Fed. Cl. 571, 573 (2007) (holding that phrase “to the best of my knowledge” negated oath). Accordingly, Defendant shall promptly re-produce his interrogatory responses with an attestation under oath that complies with Rule 33.

Case McClellan v. Kern Cty. Sheriff's Office, 2015 U.S. Dist. LEXIS 98524, 2015 WL 4598871 speaks about the problem with unsworn answers: previous phrasing "create[d] questions about the completeness of the answers and whether the answers will ultimately bind the party making them".

While we are on the subject of McClellan and interrogatories, it is fairly common to get interrogatory responses that point to other interrogatory answers or documents.

This is not correct. Read deeper into McClellan:

The Court agrees that Plaintiff's responses to Interrogatories 1-4, 12, and 17-21 are insufficient because they refer either to his complaint or to responses to previous interrogatories. Rule 33(b)(3) requires each interrogatory to be answered separately and fully, without reference to other interrogatories or documents. Mulero-Abreu v. P.R. Police Dep't, 675 F.3d 88, 93 (1st Cir. 2012)("answering interrogatories simply by directing the proponent to rummage through other discovery materials falls short of the obligations imposed by Rule 33"); United States ex rel. O'Connell v. Chapman University, 245 F.R.D. 646, 650 (C.D. Cal. 2007)("an interrogatory should be complete in itself and should not refer to the pleadings, or to depositions or other documents, or to other interrogatories"). References to statements in a complaint are also problematic because such statements are mere allegations; an interrogatory response, by contrast, contains facts that Plaintiff has verified under penalty of perjury are true and correct to the best of his knowledge. Hash v. Cate, No. C 08-03729, 2012 U.S. Dist. LEXIS 172715, 2012 WL 6043966, at *3 (N.D. Cal. Dec. 5, 2012); see also Guerrero v. McClure, No. CIV S-10-0318 GEB, 2011 U.S. Dist. LEXIS 111795, 2011 WL 4566130, at *6 (E.D. Cal. Sept. 29, 2011). Plaintiff must be specific as to the amount of damages he is requesting, and may not merely refer Defendants to other documents where he has enumerated the damages sought. See Ray v. Wash. Nat'l Ins. Co., 190 F.R.D. 658, 665 (D. Mont. 1999); Beckner v. El Cajon Police Dep't, No. 07cv509, 2008 U.S. Dist. LEXIS 38234, 2008 WL 2033708, at *6 (S.D. Cal. May 9, 2008). Accordingly, Plaintiff will be ordered to provide good faith, supplemental responses to Defendants' interrogatories, omitting references to other documents, and specifying as clearly as possible the facts requested by each interrogatory. See Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ("Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.").

Don't let your TCPA defendant play games in answering interrogatories. In federal court, declarations should follow 28 U.S. Code § 1746, or the form approved in the state the court sits in, which for d in Washington State declarations need to follow the form in RCW 5.50.50

An unsworn declaration under this chapter must be in substantially the following form: I declare under penalty of perjury under the law of Washington that the foregoing is true and correct. Signed on the [fill in the blank] day of [fill in the day/month/year] at [fill in the blank] [printed name] [signature]

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.

Are telemarketers bothering you in Washington or Oregon?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

📞 Call: 206-800-6000 / 971-800-6000

📧 Email: peter@nwdebtresolution.com

Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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