Hine v. Superior Court

504 P.2d 509, 18 Ariz. App. 568, 1972 Ariz. App. LEXIS 928
CourtCourt of Appeals of Arizona
DecidedDecember 21, 1972
DocketNo. 1 CA-CIV 2194
StatusPublished
Cited by4 cases

This text of 504 P.2d 509 (Hine v. Superior Court) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hine v. Superior Court, 504 P.2d 509, 18 Ariz. App. 568, 1972 Ariz. App. LEXIS 928 (Ark. Ct. App. 1972).

Opinion

JACOBSON, Judge.

This special action questions the propriety of the trial court’s order relieving the real parties in interest from answering certain interrogatories upon the basis that “said number of interrogatories are [sic] prima facie excessive, oppressive and unfair.”

The petitioners, O. H. Hine and Mary Hine, are defendants in an action brought by Robert F. Otondo and Mary Otondo, real parties in interest. Pursuant to Rule 33, Rules of Civil Procedure, 16 A.R.S., the defendants submitted to the plaintiffs and their attorneys 146 separate interrogatories, many with subparts, which amounted to 114 pages. Subsequent to the service of the interrogatories, plaintiffs filed a motion to strike the interrogatories upon the grounds that “the length of said interrogatories is oppressive, unfair and the amount of time required to answer said interrogatories will involve too much expense,” and that “plaintiff will make himself available for oral deposition in the event defendant should require same.” The trial court granted the motion, and the defendants brought this special action.

We took jurisdiction in this special action since the petitioners have no right of appeal from this unfavorable pretrial discovery order which they allege was an arbitrary and capricious abuse of discretion and in excess of the trial court’s jurisdiction. See, Cornet Stores v. Superior Court, 108 Ariz. 84, 492 P.2d 1191 (1972) ; Campbell v. Superior Court, 18 Ariz.App. 216, 501 P.2d 57 (1972); Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764 (1958); cf. Scottsdale Jaycees v. Superior Court, 17 [570]*570Ariz.App. 571, 499 P.2d 185 (1972); Southwest Cooperative Wholesale v. Superior Court, 13 Ariz.App. 453, 477 P.2d 572 (1970).

Our task is two-fold, first, to determine whether the mere number of interrogatories or sets of interrogatories is a sufficient basis upon which to relieve a party from answering the inquiries, and, second, to settle the conflict surrounding the relationship between written interrogatories and oral depositions as means of discovery.

Rule 33, supra, which allows the submission of written interrogatories to parties, is designed to accomplish the general purposes of discovery discussed under Rule 26, Rules of Civil Procedure, supra. 8 Wright and Miller, Federal Practice and Procedure, § 2162, at 484 (1970) ; 2A Barron and Holtzoff, Federal Practice and Procedure, § 761, at 278 (1961). While appellate courts adhere to the rule that “in matters of discovery, trial courts are vested with wide discretion, and their decisions will not ordinarily be disturbed,” trial courts are admonished “that the rules of discovery are to be broadly and liberally construed to facilitate identifying the issues, promote justice, provide a more efficient and speedy disposition of cases, avoid surprise, and prevent the trial of a lawsuit from becoming a ‘guessing game.’ ” Cornet Stores v. Superior Court, supra, 108 Ariz. 84, 492 P.2d at 1193.

We are of the opinion that the trial court failed to follow this admonition when it ruled that the number of interrogatories was “prima facie excessive, oppressive and unfair.” Professors Wright and Miller in their analysis of Rule 33 of the Federal Rules of Civil Procedure, from which Arizona’s Rule 33 is derived, state that:

“There is no limitation on the number of interrogatories that may be included in a set or on the number of sets of interrogatories that may be served. As initially adopted in 1938, Rule 33 provided that no party might, without leave of court, serve more than one set of interrogatories to be answered by the same party. Under the original rule there were also cases holding that the number of interrogatories should be relatively few and limited to the important facts of the case, though other cases recognized that there should be no numerical test and that the question was whether the interrogatories were reasonable in the-particular case.
“The matter was resolved in the 1948: amendments. The limitation to one set of interrogatories was eliminated from Rule 33 and the following language was added: ‘The number of interrogatories, or of sets of interrogatories to be served is not limited except as justice requires. to protect the party from annoyance, expense, embarrassment, or oppression.’ Under this provision it was well understood that there was no longer any limitation on the number of sets of interrogatories and that the number of interrogatories is not limited except when the-court is satisfied that the interrogatories would be unduly burdensome. The 1970' amendments make no change in these principles. Although the sentence added' to Rule 33 in 1948 was not carried forward in the rule as amended in 1970, this is because the matter is now covered for all forms of discovery by the general provision in Rule 26(a) that, unless the court has granted a protective order under Rule 26(c), ‘the frequency of use of these methods is not limited’.” Wright and Miller, supra, § 2168, at 519-521.

It is thus clear that the number of interrogatories or of sets of interrogatories in and of itself is not grounds for relieving a party from answering them. The trial court must be satisfied that the interrogatories are “unduly burdensome” under the circumstances of the case. Kainz v. Anheuser-Busch, Inc., 15 F.R.D. 242 (D.C.Ill.1954); Banana Serv. Co. v. United Fruit Co., 15 F.R.D. 106 (D.C.Mass.1953).

In determining the issue of “undue burden” the trial court should consider the complexity of the issues presented by the litigation and whether the interrogate-[571]*571Ties fairly and without repetition attempt to obtain information concerning these issues. See, Schwartz v. Schwerin, 85 Ariz. 242, 336 P.2d 144 (1959) ; Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746 (1958). In reviewing the interrogatories filed in this matter in this light we are unable to sustain the trial court’s determination that the “number of interrogatories •are [sic] prima facie excessive, oppressive ■and unfair.”

In the instant case, the trial •court proceeded to a ruling upon the general objection that the interrogatories were ■oppressive and without a specific and particular objection having been made against •particular interrogatories. Since the trial •court has not had an opportunity to hear .specific objections to the interrogatories, ■our holding does not preclude the plaintiffs from seeking a protective order or otherwise objecting to answering all or some of the interrogatories in question as long as they satisfy their burden of showing why they should be relieved from answering the •particular interrogatories objected to.

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504 P.2d 509, 18 Ariz. App. 568, 1972 Ariz. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hine-v-superior-court-arizctapp-1972.