In a recent post, I explored requests for admission. This post shifts to a very similar discovery device, contention interrogatories. Although both devices can seek concessions or information about the other side’s positions in the action, there are also some important differences.

Scope

 Contention interrogatories are authorized by Rule 33(a)(2), which contains a scope almost identical to one of the two authorized categories of requests for admission. Rule 36(a)(1)(A) authorizes requests relating to “facts, the application of law to fact, or opinions about either” and Rule 33(a)(2) provides that an interrogatory may relate to “fact or the application of law to fact.” Thus, for both requests for admission and contention interrogatories, requests regarding pure issues of law are improper, but requests that include facts and law are explicitly allowed. See Mercado v. Arrow Truck Sales, Inc., 2024 WL 1557539 (D. Kan. 2024).

Unfortunately, the case law is not all that clear regarding the dividing line between a pure legal question and a question of mixed law and fact. “What are the elements of negligence in Pennsylvania?” is plainly a pure legal question. “What color was the traffic light at the time you went through the intersection?” is plainly a pure factual question. Between these two extremes, the distinction becomes blurry and the case law is all over the board. Furthermore, even though requests for admission and contention interrogatories use essentially the same limiting language, the case law even within individual jurisdictions is not consistent as to what constitutes a pure question of law for purposes of contention interrogatories as compared to requests for admission.

Courts fairly regularly allow interrogatories seeking the factual basis for an opponent’s position—these facially involve the application of law to fact. For example, in Mercado v. Arrow Truck Sales, Inc., 2024 WL 1557539 (D. Kan. 2024), the court found proper contention interrogatories asking for an opponent’s contentions about how the contract in question (the facts of the case) should be construed in different contexts (the application of legal analysis to the facts of each context). Likewise, in Sprint Commc’ns Co. L.P. v. Crow Creek Sioux Tribal Ct., 316 F.R.D. 254, 274 (D.S.D. 2016), the court found the following interrogatory proper: “State the basis of your denial, in Paragraph 43 of your Answer To NAT’s Amended Counterclaim, that NAT was providing a service to Sprint and/or its customers.” And in AngioScore, Inc. v. TriReme Med., Inc., 2014 WL 7188779 (N.D. Cal. 2014), the court found the following interrogatory proper: “State all facts upon which you base any contention that you were not obligated to disclose and/or offer to AngioScore the business opportunity associated with the Chocolate balloon catheter prior to February 5, 2010.”

Conversely, courts routinely reject interrogatories that don’t mention the facts of the case. In Glock, Inc. v. United States, 736 F. Supp. 3d 1279, 1294 (Ct. Int’l Trade 2024), a party served an interrogatory asking, “What does [the opposing party] contend is the meaning of ‘addition usually made for profit and general expenses’ as the phrase is used in 19 U.S.C. § 1401a(d)(3)(A)(i) and 19 C.F.R. § 152.105(d)(1)?” The court held that interrogatory to be seeking an impermissible pure conclusion of law (totally divorced from the facts of the case). Similarly, in Martin v. Evans, 2018 WL 10247394 (D. Mass. 2018), the court found the following interrogatory to improperly seek a pure conclusion of law: “Do you contend that the First Amendment affords a right to Secretly Record a Civilian while he/she interacts with a police officer in the course of the officer’s performing his/her duties in public?”

The difficulties and inconsistencies arise in between these clear-cut examples. Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin v. Evers, 2020 WL 7055883 (W.D. Wis. 2020), involved a dispute over taxation of certain properties located on the reservations of several Chippewa Indian tribes. The tribes served interrogatories asking the defendants to: (1) explain why they contended that any reservation properties were taxable; (2) identify every treaty, statute, regulation, or court decision authorizing the taxation of reservation properties; (3) explain why those authorities authorize taxation; and (4) explain why the defendants contended that reservation properties sold to non-tribal owners and repurchased by the tribes or their members were taxable. Although the second and third of these would appear to be pure questions of legal research, the court held them all to be proper.

Glowgower v. Bybee-Fields, 2022 WL 4042412 (E.D. Ky. 2022), stemmed out of unsuccessful efforts to impeach Kentucky Governor Andrew Beshear and other legislative representatives. After the impeachment petitions were dismissed, the petitioners were presented with substantial bills for costs and then sued the clerk of the House of Representatives to contest the charges. The petitioners served an interrogatory stating, “Do you assert that the release of GOP Senate Candidate Andrew Cooperrider was a ‘Legislative Act’ conferring absolute immunity? If so, please describe in detail the legislative process authorizing the release. Please specifically identify all hallmarks of traditional legislation associated with any such ‘Legislative Act.’ ” Although one might argue that the interrogatory asked about the legal effects of an action specific to the case—the fact of the release of Representative Cooperrider—the court deemed the request to be impermissibly asking the defendant to make a legal analysis of the issue raised in the interrogatory.

In Bonanza Beverage Co. v. MillerCoors LLC, 2019 WL 13210026 (D. Nev. 2019), the court drew a potentially helpful distinction. The interrogatory in question asked the respondent, a beer distributor, to “Describe the standards you claim a Supplier must use to evaluate a proposed purchaser of the distribution rights of its products in Nevada. Provide the factual and legal basis for your answer.” The court found this to be a pure question of law but explained that the interrogatory would have been proper if it had asked the Supplier how those standards applied to the facts of the case. The bottom line, though, is that the line between pure questions of law and questions that involve the application of law to fact is blurry and leaves plenty of room for advocacy. It also suggests taking care in the phrasing of an interrogatory to be consistent with other rulings by the same court.

Common Categories

Generally, contention interrogatories fall into several categories, interrogatories that require the responding party to: indicate what it contends generally; to identify whether the responding party is making a specific contention, to state all the facts on which the responding party is basing a specific contention from the complaint or answer; to take a position and then to explain or defend that position with respect to how the law applies to facts; or to spell out the legal basis for, or theory behind, some specified contention. Courts generally hold contention interrogatories in these categories to be proper. Conversely, interrogatories that merely ask for witnesses or documents that support or contradict any of the assertions in an opponent’s pleading are not really contention interrogatories. Id.

The fact that a contention interrogatory is proper, of course, does not mean it is effective. Inartful contention interrogatories can result in a huge waste of time and resources. One relatively effective use is to explore and flesh out positions taken in the pleadings. For example, it is common for defendants to include in their answers an overinclusive list of affirmative defenses to avoid waiver. Contention interrogatories can be useful to narrow which of those affirmative defenses the defendant actually intends to pursue and the general grounds supporting such affirmative defenses.

Deferring Responses

One frequent issue with contention interrogatories is that they can be difficult to answer early in an action—a defendant may not know which affirmative defenses it intends to pursue until it conducts some discovery and evaluates the evidence it is able to develop. For this reason, Rule 33(a)(2) expressly authorizes the court to defer the response to contention interrogatories until after the close of discovery or until some other point that the court sets. See In re Domestic Drywall Antitrust Litigation, 300 F.R.D. 228 (E.D. Pa 2014).

When a contention interrogatory calls for the responding party’s position or opinions about expert issues, deferral of the responses is particularly likely. Courts reason that a response given in advance of the preparation and disclosure of expert reports is likely to be protectively overly broad and then modified as the expert opinions are solidified, resulting in inefficiencies. See United States ex rel. Tyson v. Amerigroup Ill., Inc., 230 F.R.D. 538 (N.D. Ill. 2005).

Pros and Cons—Comparison with Requests for Admission

In terms of the advantages and disadvantages of contention interrogatories as compared to requests for admission, the biggest difference is in the stickiness or binding nature of the responses. An admission in response to a request for admission conclusively admits the admitted facts or matter. If the admitting party seeks to introduce evidence at trial to contradict the admission, the court should sustain an objection to that evidence. Furthermore, an admitting party may not withdraw or amend an admission to a request for admission without leave of court. See the February 2025 edition of The Federal Litigator.

In contrast, an admission in response to a contention interrogatory is admissible in evidence as a party admission but is not binding in the same way. The admitting party may introduce contradictory evidence and may offer an excuse or explanation for the response in the hopes of persuading the fact finder not to apply the admission. And unlike requests for admission, a party may supplement or modify its response to a contention interrogatory without seeking leave of court (and in fact may have a duty to do so under Rule 26(e)).  See United States ex rel. NRDC v. Lockheed Martin Corp., 2014 WL 6909652 (W.D. Ken. 2014).

So, when should you use contention interrogatories and when should you use requests for admission? Given the binding effect of an admission in response to a request for admission and the difficulty of withdrawing or modifying one, requests for admission are plainly preferable when you’re seeking straightforward admissions. For example, if you want your opponent to admit that the parties entered into a binding contract, an admission in response to a request for admission is significantly more powerful than a response to a contention interrogatory asking whether your opponent contends that the contract was not binding.

On the other hand, requests for admission don’t allow for gathering of related information. Thus, if you want to know the basis for your opponent’s position on an issue, a contention interrogatory is your best option. Something along the lines of, “State whether it is your contention that the parties did not enter into a binding contract. If so, please identify the facts and witnesses that support this contention” provides insight into your opponent’s position on this issue and allows you to further explore their support for that position.

It can also be effective to pair these tools. A request for admission asking for an admission that the parties entered into a binding contract can be paired with an interrogatory saying, “To the extent your response to request for admission No. X is anything other than an unqualified admission, please identify the witnesses and documents that support your position.” This pairing can achieve the best of both worlds by seeking a binding admission while, in the event you don’t obtain the desired admission, still probing the basis of your opponent’s position.

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Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the February 2025 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2025 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.