Rule 33.03: Option to Produce Business Records.



Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. [As amended July 1, 1979, and by order entered January 31, 1984, effective August 20, 1984, amended by order dated January 8, 2009, effective July 1, 2009.]

Advisory Commission Comments.

Rule 33 deals specifically with written interrogatories to adverse parties. It thus differs from Rule 31 which deals generally with depositions of "any person" upon written interrogatories. Rule 33, providing a simple method of obtaining the "official position" of an adversary on specific questions, would seem to constitute a useful addition to Tennessee procedure.

Rule 33 previously provided that the plaintiff could not serve interrogatories within 30 days after the commencement of the action without obtaining leave of the court. Rule 33.01 now [in 1979] permits interrogatories, without leave of the court, to be served by the plaintiff with or after service of the summons and complaint upon the defendant. [1979.]

Rule 33.03 is new [in 1979] and should permit the more equitable apportionment of the burden of examining voluminous records. [1979.]

33.03: Purely as an option for the party required to respond to interrogatories, Rule 33 has allowed under certain circumstances substituting specification and an opportunity to examine records in place of written answers. If the option is exercised, the discovered party must specify in a realistic and pragmatic fashion the business records from which answers can be obtained. [1984.]

Advisory Commission Comment [2009].

Rule 33.03 is amended to parallel Rule 34.01 by recognizing the importance of electronically stored information. The term "electronically stored information" has the same broad meaning in Rule 33.03 as in Rule 34.01. Much business information is stored only in electronic form; the Rule 33.03 option should be available with respect to such records as well.

Special difficulties may arise in using electronically stored information, either due to its form or because it is dependent on a particular computer system. Rule 33.03 allows a responding party to substitute access to documents or electronically stored information for an answer only if the burden of deriving the answer will be substantially the same for either party. Rule 33.03 states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it "as readily as can the party served," and that the responding party must give the interrogating party a "reasonable opportunity to examine, audit, or inspect" the information. Depending on the circumstances, satisfying these provisions with regard to electronically stored information may require the responding party to provide some combination of technical support, information on application software, or other assistance. The key question is whether such support enables the interrogating party to derive or ascertain the answer from the electronically stored information as readily as the responding party. A party that wishes to invoke Rule 33.03 by specifying electronically stored information may be required to provide direct access to its electronic information system, but only if that is necessary to afford the requesting party an adequate opportunity to derive or ascertain the answer to the interrogatory. In that situation, the responding party's need to protect sensitive interests of confidentiality or privacy may mean that it must derive or ascertain and provide the answer itself rather than invoke Rule 33.03.

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