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January 16, 1969


Croake, District Judge.

The opinion of the court was delivered by: CROAKE


CROAKE, District Judge.

 The defendant insurance company has objected to certain interrogatories propounded by the plaintiff in this action to recover on a Brokers' Blanket Bond issued by the defendant. The bond was to recover "[any] loss through any dishonest, fraudulent or criminal act of any of the Employees * * *" of the plaintiff. *fn1" The plaintiff claims that it has suffered such a loss.


 Defendant has objected to Interrogatories 14 and 19 which, respectively, ask the defendant corporation to define "dishonest act" and "fraudulent act," and to state if certain specific acts are dishonest and fraudulent. *fn2" The basic objection to each of these interrogatories is that legal opinions are sought. Since the view of the courts toward this objection is changing, some discussion is warranted.

 The purposes of federal discovery were clearly stated by the Supreme Court shortly after the Rules of Civil Procedure were adopted.

"The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues." *fn3"

 These purposes are fostered by the broad scope of inquiry allowed for depositions and interrogatories.

"Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." *fn4"

 A strict construction of this rule would make objectionable most interrogatories requiring opinions or conclusions as answers since they would neither be relevant nor lead to the discovery of admissible evidence. This approach was initially adopted by the courts which rigidly sustained objections to interrogatories asking for opinions. *fn5" Today, however, factual conclusions are regularly considered proper objects of interrogation *fn6" and interrogatories requiring legal opinions as answers are met with a flexible approach. The latter will be permitted if

"* * * the court is convinced that by requiring responses thereto the lawsuits could be expedited, the information obtained could lead to relevant evidence, the issues could be narrowed, unnecessary testimony and wasteful preparation could be avoided, or any other substantial purpose sanctioned by the discovery provisions of the Federal Rules could be served." *fn7"

 Under this approach interrogatories requiring various degrees of factual conclusion and legal opinion have been approved. Defendants in antitrust cases may require the United States to define the relevant market and line of commerce. *fn8" In patent cases -- where opinion-seeking interrogatories have most frequently been approved -- questions requiring an interpretation of the patent in suit and asking for the manner and extent of infringement have withstood objections. *fn9" A defendant employer has been required to say whether its employee was acting within the scope of his authority when a tort was committed. *fn10" Courts frequently and readily require parties to state the facts underlying their claim or defense. *fn11"

 These examples show that any attempt to draw a fine line between interrogatories seeking legal opinions and those asking for factual conclusions is destined to fail. A question asking for facts underlying a claim raises issues of legal relevancy at least, and an abstractly-framed question, such as Interrogatory 19 in this case, will inevitably be keyed to the facts in controversy. A distinction can be drawn based on the primary goal of interrogatories; the term "opinionseeking interrogatories" will be used here to designate interrogatories primarily intended to obtain legal opinions rather than to elicit factual conclusions.

 The value of opinion-seeking interrogatories is that they may narrow the legal issues in a case and thus lessen the preparation needed. Particularly in complex litigation such as patent and antitrust actions, discovery is necessarily extensive. The time of counsel and the funds of clients are sometimes consumed by searches for hidden legal problems that the opposition is not concerned with or in painstaking documentation of some point that will not be seriously opposed. In spite of the fruitlessness of such discovery, the courts may be called upon to supervise it. In the process, justice is delayed for the parties directly involved as well as for other litigants in the court. Pretrial hearings and orders serve to narrow legal issues for ...

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