UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
January 16, 1969
LEUMI FINANCIAL CORPORATION, Plaintiff,
HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Third-Party Plaintiff, v. Richard ROTHSTEIN, Third-Party Defendant
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.
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.
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."
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."
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.
Today, however, factual conclusions are regularly considered proper objects of interrogation
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."
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.
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.
A defendant employer has been required to say whether its employee was acting within the scope of his authority when a tort was committed.
Courts frequently and readily require parties to state the facts underlying their claim or defense.
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 trial;
the administration of justice would be improved if a means to this end were available in the proper cases during discovery.
The only vehicle for narrowing issues during discovery is discovery itself.
The goal of the federal rules, "to secure the just, speedy, and inexpensive determination of every action,"
will be fostered by permitting opinionseeking interrogatories to be used in proper cases.
Objections to opinion-seeking interrogatories have occasionally been sustained on the technical theory that it is the party rather than the attorney to whom interrogatories are directed and a party should not be asked for, and cannot swear to, a legal opinion.
Particularly in complex cases where opinion-seeking interrogatories would be useful, it is unrealistic to suppose that a party draws answers to interrogatories himself.
The value of opinion-seeking interrogatories may sometimes be outweighed by the possibility that the interrogated party may be prejudiced by his answer. An interrogatory may, for example, require the party to select his legal theory before he is ready;
subsequently, discovered facts may render his answer damaging.
In order to calculate the possibility of prejudice, the court should weigh the nature of the case, the knowledge of the answering party, the amount of discovery to be completed, and the proximity of the issue to be narrowed to the central issues in the case. Only if the economy to be achieved is greater than the possible prejudice to the answering party may the court compel an answer to an opinion-seeking interrogatory.
The present case does not appear to be one of great complexity. Its resolution will require an interpretation of "dishonest, fraudulent, or criminal act," an application of that interpretation to the acts of the employee, and a determination of the timeliness of the notice of claim. Requiring the defendant to define the critical language of the bond would eliminate the need for some discovery; since, however, the interrogatories ask the defendant to resolve a central issue of the case, the possibility of the answer prejudicing the defendant is great. Under the standards set out above, this court finds that the possibility of prejudice outweighs the advantages narrowing this issue would yield to the plaintiff and to the court; the objections to Interrogatories 14 and 19 are therefore sustained.
Interrogatories 15, 16, 17 and 18 seek information on the way the defendant handled claims on bonds similar to plaintiff's from the time the bond was issued to plaintiff to about five months after the last transaction for which recovery is sought. The defendant objects to these interrogatories, set out below, as irrelevant and burdensome.
"15. Between August, 1965 and December, 1966, how many policies of the type which is the subject of this action did defendant have in force?
"16. During the period August, 1965 to December, 1966, how many reports of losses through claimed a) dishonest acts; b) fraudulent acts, did the defendant receive?
"17. On what types or categories of a) dishonest acts; b) fraudulent acts, did the defendant make payment under its policies?
"18. On how many of the claims set forth in interrogatory "16" did the defendant receive sworn proofs of loss within 90 days of discovery of same?"
Full consideration of the objections to these interrogatories requires knowledge of facts underlying the litigation. Unfortunately, neither the full text of the bond in question nor a detailed account of the allegedly dishonest and/or fraudulent acts of the employee of the plaintiff have been given to the court.
What does appear in the pleadings and answers to interrogatories is the following. Between December 1965 and July 1966 the plaintiff suffered losses as the result of certain conduct of an assistant vice-president of the plaintiff. The exact nature of this conduct is not clear. The defendant contends that the plaintiff discovered these losses some time in May of 1966, and states that the bond requires that written notice of loss be given as soon as possible after discovery and that a proof of claim be filed within ninety days. On about October 13, 1966 plaintiff notified defendant that it may have sustained losses as a result of dishonest and/or fraudulent acts of an employee. By a proof of claim filed about November 9, 1966 and supplements thereto filed on December 1, 1966 and August 14, 1967, the plaintiff itemized losses of over $300,000.
The burden of proof is generally on the party that objects to an interrogatory.
The objection of burdensomeness will therefore not be considered without some indication of why the interrogatory is difficult to answer.
Since the defendants have made no effort to explain why the particular questions asked would be difficult to answer the objection cannot be sustained on the ground of burdensomeness alone. The plaintiff has been just as lax, however, in showing that the interrogatories it propounded were within the scope of permissible interrogation.
Plaintiff's affidavit and memorandum say that the information sought will be of great value to it but only briefly suggest two possible theories for sustaining the interrogatories.
Plaintiff seems to contend that the defendant is estopped from defending on the ground that the notice of loss and proof of claim were untimely because payments were made under similar policies after similar delays. This theory seems to underlie Interrogatories 15, 16 and 18. Where it is clear from the face of an interrogatory that a considerable amount of effort would be necessary to answer it, and the purpose of the interrogatory is not to determine the existence of an issue but to obtain evidence to buttress a position on an issue, then the interrogating party should come forward with some evidence to show that the issue is in fact in the case. With no evidence of an estoppel before it, this court is loath to compel the defendant to search through its files to compile what may prove to be useless information.
The second theory appears to support Interrogatory 17. Where an insurance policy, or other contract, is ambiguous on its face, the practical construction of that language by the parties is evidence of the intended meaning.
The circumstances under which the defendant has paid other bondholders may be of some help to a court in construing the words "dishonest" and "fraudulent."
Since, however, this court does not know just what the employee of the plaintiff is alleged to have done, it has no way of determining whether all the information sought in Interrogatory 17 will be useful to the plaintiff. Since answering the interrogatory would require an analysis of all the claims paid during the period in question and many of the claims may be dissimilar to this one, we are unwilling to compel an answer to the interrogatory as now framed.
Ordinarily where interrogatories appear too broad, although some of the information sought may be within the scope of permissible interrogation, the court will assist the parties in limiting the question. Because of the paucity of information before this court, that is impossible.
For the reasons stated, the objections to Interrogatories 15, 16, 17 and 18 are sustained at this time.