How many interrogatories do you get in a federal court telemarketing lawsuit?

According to FRCP 33(a)(1): Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.

Suppose in a telemarketing lawsuit you sue the Seller, Telemarketer, and a corporate officer of both. Is that four parties and up to 25 interrogatories each? Maybe. Maybe not under the concept of the-words-don't-mean-what-they-say common interest doctrine. Like many things, it started in a good place. A lawsuit with 200 plaintiffs could propound 5,000 interrogatories on a single defendant. Zito v. Leasecomm Corp., 233 F.R.D. 395, 399 (S.D.N.Y. 2006). So some judges invented a common interest doctrine which sounds simple - “Where separate parties are represented by the same counsel and are acting in unison, they may be treated as one ‘party' for purposes of the limit on interrogatories.” Layani v. Ouazana, 20-cv-420-SAG, 7 (D. Md. Jun. 28, 2024) - but makes it easy for a biased judge to lump a lot of defendants into a 25-interrogatory limit.

Conceptually it makes some sense to use a the common interest test to a group of defendants or plaintiffs identically situated where all the issues are common. Lets look at where the courts have clearly applied it in these and alter-ego situations.

The Plaintiff argues that because AAI and Defendant Adam are separate parties, he should be entitled to exceed the 25 interrogatory limit in the Scheduling Order . . . Here, the Plaintiff has taken the position that AAI and Defendant Adam are alter egos, and, in essence, should be treated as a single, unified entity. In such circumstances, the Court cannot say that the Magistrate Judge abused his discretion in limiting the Plaintiff to 25 interrogatories in total. Vinton v. Adam Aircraft Industries, Inc., 232 F.R.D. 650, 664 (D. Colo. 2005)

The parties now dispute discovery served upon Normoyle and Smith, which the Department argues is duplicative and burdensome but which Freedom Foundation asserts is legitimate . . . The claims are either against all the Defendants or the Department alone; none of the claims target the conduct of Normoyle and Smith insofar as it differs from that of the Department. In fact, their names are not mentioned once in Freedom Foundation's claims . . . The Department argues that Freedom Foundation's discovery to Normoyle and Smith is improper because they are only "nominally separate" from the Department itself . . . some courts have observed that multiple parties on the same side may be treated as one if they are only "nominally separate." . . . Whether the Court relies on Rule 26's prohibition of overly burdensome discovery or the nominally separate doctrine, additional discovery to Normoyle and Smith is unwarranted. The RFAs to Normoyle and Smith seek the exact same information as those to the Department, which were answered by the Defendants collectively . . . There is no need to waste more time, effort, and paper just so Normoyle and Smith can repeat the same information again . . . Nowhere in its claims does Freedom Foundation distinguish between acts of the Department and those of Normoyle and Smith . . . Instead, the Complaint consistently refers to "Defendants" as a single unit, treating Normoyle and Smith as mere vessels of the Department policy at the heart of this case . . . The discovery propounded upon Normoyle and Smith further underscores their association with the Department by requesting no unique information pertaining to them individually. In light of all this, the separation between Defendants is only nominal. Freedom Found. v. Sacks, CASE NO. 3:19-cv-05937-RBL, 7 (W.D. Wash. Apr. 20, 2020)

Here, the Court is persuaded that Plaintiffs are so aligned such that they should be considered as one party under Rule 33(a)(1). They are represented by the same attorneys, are pursuing identical claims under identical legal theories on a classwide basis, claim to be similarly situated, and have otherwise acted in unison throughout this litigation. Permitting each plaintiff to serve Defendants with 25 interrogatories would result in duplicative and “abusive” discovery obligations upon Defendants . . . However, the Court also agrees with Plaintiffs that a 25 interrogatory limit is inappropriate in this case, given the size and complexity of this litigation. Under the circumstances, the Court will permit Plaintiffs to withdraw their previously served and unanswered interrogatories and give them leave to re-serve Defendants with an additional total of 50 interrogatories Abarca v. Werner Enters, 8:14CV319, 3 (D. Neb. Feb. 14, 2024)

In this case, Gaby's Bags and Kody are nominally separate parties. Mercari's amended counterclaim alleges that "Gaby's sole member and principal, who is authorized to manage the company, is Florida resident Kody Yates." . . . In their jointly filed Answer to the Counterclaim, Kody and Gaby's Bags admit that to be true . . . The significance of this undisputed fact is that Kody and Gaby's Bags do not have different information or documents available to them . . . All of Gaby's Bags' prior responses to the 25 rogs served on it were answered . . . Allowing Mercari serve 25 rogs on Gaby's Bags and another 25 rogs on Kody would in practice force him to answer 50 rogs, contrary to the intent of Rule 33. Further, Mercari also alleges that Kody and Gaby's Bags are alter egos, CC ¶ 3, which under the case law cited above also supports finding that they are nominally separate parties and limiting Mercari to 25 rogs as to both of those parties. Gaby's Bags, LLC v. Mercari, Inc., Case No. 20-cv-00734-WHA (TSH), 3 (N.D. Cal. Mar. 8, 2021)

In accordance with the pragmatic approach, the Court finds it most sensible to treat Tenaris S.A. and TCT as one party. The two share a legal relationship: Tenaris S.A. as the parent corporation and TCT as its subsidiary . . . Most importantly, Global Tubing draws no distinctions between Defendants Tenaris S.A. and TCT in its complaint. It refers to both of them as a collective "Tenaris" throughout, and mentions Tenaris S.A. only once to present it as a party . . . All of Global Tubing's factual allegations and claims apply equally to Tenaris S.A. and TCT. Glob. Tubing, LLC v. Tenaris Coiled Tubes, LLC, CIVIL ACTION NO. 4:17-cv-3299, (S.D. Tex. Nov. 25, 2020)

Some courts looked at the situation and decline to apply an artificial limit.

The Werras first argue that a per side limit is appropriate because the parties are nominally separate . . . Defendants contend that a per side limit should be applied here because this is an alter ego case, because Defendants are nominally separate, or because Plaintiffs are nominally separate . . . Defendants reason that, since Plaintiffs are attempting to collect a judgment under an alter ego theory, the limit should apply. However, Vinton found the parties to be nominally separate where the individual defendant and the corporate defendant were the alleged alter egos. That is not the case here. The company alleged to be the alter ego of these individuals - RJW - is not a party to this action. There is no claim that Robert Werra and John Werra are alter egos of one another . . . Defendants next claim that the Werras are nominally separate parties. They note that the Robert and John Werra are father and son, that they have the same counsel, and both are alleged to be alter egos. Further, they claim that Plaintiffs intend for each Defendant's interrogatory response to be binding on both Defendants. Plaintiffs deny claiming that one Defendant's response would necessarily bind the other. Review of the interrogatories finds little support for Defendants' claim, as there are some interrogatories related to the presentation of a defense which were identical and directed to each Defendant. Plaintiffs also note that John Werra and Robert Werra served different roles in the company and are, by any account, actually separate individuals. As noted at the hearing, it is conceivable that one defendant could be found an alter ego, but not the other. The limited evidence indicating these parties are similarly situated is insufficient to find these parties nominally separate. 21X Capital Ltd. v. Werra, No. C06-04135 JW (HRL), 2007 WL 2852367, at *1 (N.D. Cal. Oct. 2, 2007).

21X Capital Ltd v Werra.pdf

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As applied to the per-party vs. per-side interrogatory number-cap debate, those principles counsel that courts should be “guided by the [Rules'] proportionality considerations,” with due regard to factors such as “whether there is some articulable reason for the need to send more interrogatories,” . . . as well as whether particular interrogatories are “unreasonably cumulative or duplicative,” whether the information sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive,” and whether the party seeking leave to propound (or demand answers to) more than 25 interrogatories “has had ample opportunity to obtain the information by discovery in the action.” . . . as well as whether the propounding parties are aligned or share a common interest, or instead have sufficiently distinct involvement or roles in the events at issue that separate sets of interrogatories, or some number greater than 25 for their side, are justified and appropriate. Layani v. Ouazana, 20-cv-420-SAG, 7 (D. Md. Jun. 28, 2024)

Plaintiff seeks a protective order reducing the number of interrogatories “that the Defendants may serve on [Plaintiff] to no more than 25.” According to the Plaintiff, the service of “more than 200” interrogatories upon him “is an abuse of the discovery process and violates the intent of the 25-interrogatory limit imposed by FRCP 33 . . . Specifically, Plaintiff avers that because the Official and Individual-Capacity Defendants are “similarly situated” and “collectively alleged to be involved in a common fact pattern regarding [his] unconstitutional confinement in a segregated cell for nearly three years,” then the law requires imposition of a protective order requiring answers to only 25 interrogatories in order to prevent the “undue burden and expense” imposed upon Plaintiff and his counsel . . . The Individual Defendants counter that they are entitled to uncover all “facts and evidence necessary to allow for the Defendants' respective development of their defenses.” . . . I further find that 7 of the 10 Individual Defendants have different job titles/functions, and are largely alleged to have committed different acts, although those acts are often plead as interrelated . . . I interpret the Amended Complaint to suggest that these 10 Individual Defendants performed different roles and/or exercised different responsibilities, which are interrelated, over the period of time at issue . . . The Court cannot deprive the Individual Defendants of a fair opportunity to develop and prepare their cases. Skinner v. Liller, Civil Action TDC-17-3262, 6 (D. Md. Dec. 8, 2023)

It has also been applied in less clear situations. Perhaps the trial court knew the reasons behind these rulings but didn't include them in the opinion, or perhaps the court just wanted a certain outcome but didn't want the weakness of its rational on the record:

Plaintiff refused to respond on the grounds that it had already answered 45 interrogatories, more than the 25 permitted . . . and that defendants had ample opportunity to obtain that information at deposition . . . [the magistrate judge sustained the objection] That decision is not clearly erroneous. Defendants now contend that they are entitled to serve 150 interrogatories because there are six defendants in this action. However, where, as here, the parties are acting in unison and are represented by the same counsel, they may be treated as one party for purposes of the interrogatory limits. Gucci America, Inc. v. Exclusive Imports International, 99 Civ. 11490 (RCC)(FM), (S.D.N.Y. Aug. 12, 2002)

the more flexible “common interest” approach advocated by our sister court in Zito is a fair and permissible interpretation of Rule 33(a)(1) so long as its application is driven by the needs of the case and applied in a case-specific manner. That is, where parties to a litigation have conducted themselves or acted as if they have a “common interest” or are otherwise “aligned,” . . . as the Government points out, many parties to a “side” of a litigation will have at least some minimal amount of common interest in their position being vindicated in the discovery phase prior to summary judgment-either by avoiding liability or otherwise securing a favorable judgment . . . The Court agrees that nominal parties' mere alignment on a case's favorable outcome is not, in itself, “sufficient” to demonstrate a “common interest” otherwise lest the text of Rule 33 be rendered meaningless. But this was not the case here given Martha and Boris's joint representation, the “allegations of the counterclaims” and the record before MJ Wicks. Gonzalez v. United States, 2:22-CV-3370 (OEM) (JMW), 16 (E.D.N.Y. Oct. 27, 2023)

“since the inception of this case, plaintiffs have been working in unison, first pro se and now with the same counsel” Stiles v. Walmart, Inc., No. 2:14-CV-2234-MCE-DMC, 9 (E.D. Cal. Jan. 17, 2020)

Parties may be considered nominally separate when represented by a single attorney, when there is a unity of action, or when there is a legal relationship between the parties.” . . . Here, Plaintiffs are only nominally separate. Fate and Whitehead are represented by the same counsel, and they have a legal relationship through their exclusive license agreement . . . “Further, for the most part, they have acted in unison in this action, including, for example, jointly filing motions, opposition briefs, and claim construction briefs and jointly serving infringement contentions and expert reports. ” Fate Therapeutics, Inc. v. Shoreline Biosciences, Inc., 22-cv-00676-H-MSB, 3 (S.D. Cal. Jun. 22, 2023)

The reality is courts are doing to do whatever they want using whatever words are handy to limit discovery as they see fit. Some are just doing it better than others. A TCPA plaintiff suing multiple parties might have the group of them claim they should only collectively respond to 25 interrogatories. The best response is probably attacking any claim that they are similarly situated if they are not.

For example, interrogatories to a telemarketer will focus on the number of called placed, while interrogatories to the Seller will focus on the agency relationship with the Telemarketer, and interrogatories to the corporate officers will focus on their knowledge and control of the TCPA violations. “These claims [arising from the same incident] are varied enough to require separate sets of questions.” Yablonsky v. Cal. Dep't of Corr. & Rehab., Case No.: 18-cv-1122-AGS, 2 (S.D. Cal. Feb. 17, 2021)

Hopefully now you know more about how many interrogatories in federal court you get. Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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