N.M. R. Civ. P. Dist. Ct. 1-033
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.
N.M. R. Civ. P. Dist. Ct. 1-033
Committee commentary for 2009 amendments. -
See the 2009 committee commentary to Rule 1-026 NMRA for additional information.
[As amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009.]
ANNOTATIONS The 2009 amendment, approved by Supreme Court Order 09-8300-007, effective May 15, 2009, in Paragraph E, after "business records", added "including the electronically stored information". The 2001 amendment, effective February 1, 2002, divided and redesignated former Paragraph A as Paragraphs A through C, redesignated former Paragraphs B and C as Paragraphs D and E; in Paragraph A, inserted "Without leave of court or written stipulation" and "not exceeding fifty (50) in number including all discrete subparts" in the first sentence and added the last sentence; in Paragraph C, inserted the subparagraph designations and added Subparagraph (4); and added the last sentence in Paragraph E.
For use of interrogatories in small loan business investigations, see Section 58-15-9 NMSA 1978. For use of interrogatories in public service commission proceedings, see Section 62-10-10 NMSA 1978. For use of interrogatories in hearings pending before state engineer (director of water resources division), see Section 72-2-13 NMSA 1978. Compiler's notes. - This rule is deemed to have superseded 45-509, C.S. 1929, relating to the serving of interrogatories on the adverse party. Term "available" in this rule, embodies only two limitations: (1) a party obviously cannot be required to produce materials which he is incapable of procuring; and (2) in general, a party should not be required to obtain, collect or turn over materials which the opposing party is equally capable of obtaining on its own. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Mere possession by different party not determinative. - It is immaterial under this rule and Rule 34 (now see Rule 1-034 NMRA) that the party subject to the discovery orders does not own the documents, or that it did not prepare or direct the production of the documents, or that it does not have actual physical possession of them. The mere fact that the documents are in the possession of an individual or entity which is different or separate from that of the named party is not determinative of the question of availability or control. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Documents and information in the separate possession of partners are subject to production in a suit in which only the partnership is named as a party. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Information on sales of allegedly injurious drug discoverable in products liability suit. - In a products liability suit against a drug manufacturer, an interrogatory requesting information on the amount and dollar volume of sales of the drug alleged to have caused the injury should be allowed. Such information is relevant and is not privileged or a trade secret. Richards v. Upjohn Co., 1980-NMCA-062, 95 N.M. 675, 625 P.2d 1192, cert. denied, 94 N.M. 675, 615 P.2d 992. Attorney may answer interrogatories as an agent of a private corporation but verification must state that the attorney made answers to the interrogatories with personal knowledge that such answers were true and correct. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192. Verification of answers. - Where an oath is required to verify answers to interrogatories by an officer or agent of a private corporation, the verification must state the truth of the answers. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192. Answers on information and belief inadequate. - Answers to interrogatories, based solely on information and belief, are not sufficient to assist claim for summary judgment; the answers must be made under oath. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192. Party cannot answer an interrogatory simply by reference to another equally unresponsive answer. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Failure to timely file objections to interrogatories operates as waiver of any objections the party might have. This rule is generally applicable regardless of how outrageous or how embarrassing the questions may be. When a party fails to file timely objections, the only defense that it has remaining to it is that it gave a sufficient answer to the interrogatories. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Evidence of lack of good faith. - The failure to immediately raise an objection to interrogatories is itself evidence of a lack of good faith. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Hearing on objections required. - Ruling by trial court on defendant's objections to certain interrogatories without granting plaintiffs a hearing was erroneous. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192 (decided before 1979 amendment). General objections insufficient. - General objections made by defendant to plaintiff's interrogatories, to the effect that they were oppressive, not reasonably calculated to the discovery of admissible evidence, called for legal opinions and conclusions and the like, were not sufficient, and court's order sustaining such objections was erroneous. Lackey v. Mesa Petroleum Co., 1976-NMCA-085, 90 N.M. 65, 559 P.2d 1192. Procedure as to privilege. - All discovery, including discovery under Rule 1-045 NMRA, is limited by Rule 1-026 NMRA to the acquisition of information "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action". Thus, once a privilege is asserted in response to interrogatories, counsel cannot unilaterally disregard the privilege and then issue subpoenas to sidestep the procedure outlined in this rule for resolving the dispute. Wallis v. Smith, 2001-NMCA-017, 130 N.M. 214, 22 P.3d 682, cert. denied, 130 N.M. 254, 23 P.3d 929. Attempted answer to interrogatories as "appearance" in suit. - Garnishee's attempt to answer interrogatories in a letter to the clerk, a copy of which he sent to appellee's counsel, and payment into court of what he thought was owing, clearly indicated an intention to meet the obligations of a party to a lawsuit and to submit to court's jurisdiction, and constituted an appearance within the scope of Rule 55(b) (see now Rule 1-055) , hence, he was entitled to notice of motion for default judgment. Mayfield v. Sparton S.W., Inc., 1970-NMSC-103, 81 N.M. 681, 472 P.2d 646. Effect of adverse party's answers. - A party is not bound on the day of trial by the opposite party's answers to written interrogatories. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Use of answers to interrogatories. - Answers to written interrogatories may be used by a party against the party who made the answers, or admissions in those answers may be used against the party answering; however, the answers cannot be used by the party making them to establish an affirmative claim or defense because they are not subject to cross-examination, and confrontation and cross-examination are basic ingredients of a fair trial. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Defendant could not introduce into evidence her answers to interrogatories propounded by plaintiff when she was unable to attend and testify because of illness, under the circumstances of the case. Crabtree v. Measday, 1973-NMCA-017, 85 N.M. 20, 508 P.2d 1317, cert. denied, 85 N.M. 5, 508 P.2d 1302. Right of interrogee when part of answers offered in evidence. - When the party submitting written interrogatories offers in evidence part of the answers thereto, the interrogee has a right to introduce, or to have introduced, all of the interrogatories which are relevant to, or which tend to explain or correct, the answers submitted. Albuquerque Nat'l Bank v. Clifford Indus., Inc., 1977-NMSC-098, 91 N.M. 178, 571 P.2d 1181. Triable issue presented. - In considering a motion for summary judgment, the record must be viewed in the light most favorable to the party opposing the motion, and all doubts as to the existence of a triable issue must be decided against the movant; where, from the meager record, the pleadings and answers to interrogatories of the respective parties presented a triable issue of a material fact, summary judgment should not have been granted. Allied Bldg. Credits, Inc. v. Koff, 1962-NMSC-074, 70 N.M. 343, 373 P.2d 914. Law reviews. - For comment, "Discovery - Disclosure of Existence and Policy Limits of Liability Insurance," see 7 Nat. Resources J. 313 (1967). For article, "The Impact of the Revised New Mexico Class Action Rules Upon Consumers," see 9 N.M.L. Rev. 263 (1979). For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M.L. Rev. 53 (1981). For annual survey of New Mexico law relating to Civil Procedure, see 12 N.M.L. Rev. 97 (1982). For annual survey of New Mexico law relating to Civil Procedure, see 13 N.M.L. Rev. 251 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 23 Am. Jur. 2d Depositions and Discovery §§168, 199 to 210. Corporation party, 66 A.L.R. 1269. Right of party to order for examination of, or to propose interrogatories to, adverse party in respect to matters within knowledge of former, 95 A.L.R. 241. Jurisdiction to require a nonresident party to an action to submit to adverse examination, 154 A.L.R. 849. Subpoena duces tecum, form, particularity and manner of designation required in, for production of corporate books, records and documents, 23 A.L.R.2d 862. Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers or the like, 37 A.L.R.2d 586. Garnishee's pleading, answering interrogatories or the like, as affecting his right to assert court's lack of jurisdiction, 41 A.L.R.2d 1093. Time for filing and serving discovery interrogatories, 74 A.L.R.2d 534. Propriety of considering answers to interrogatories in determining motion for summary judgment, 74 A.L.R.2d 984. Subpoena duces tecum for production of items held by a foreign custodian in another country, 82 A.L.R.2d 1403. Time and place, under pretrial discovery procedure, for inspection and copying of opposing litigant's books, records and papers, 83 A.L.R.2d 302. Answer to interrogatory merely referring to other documents or source of information, 96 A.L.R.2d 598. Party's right to use, as evidence in civil trial, his own testimony given upon interrogatories or depositions taken by opponent, 13 A.L.R.3d 1312. Taking deposition or serving interrogatories in civil case as waiver of incompetency, 23 A.L.R.3d 389. Self-incrimination, privilege against, as ground for refusal to produce noncorporate documents in possession of person asserting privilege but owned by another, 37 A.L.R.3d 1373. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Confidentiality of proceedings or reports of judicial inquiry board or commission, 5 A.L.R.4th 730. Propriety of state court's grant or denial of application for pre-action production or inspection of documents, persons, or other evidence, 12 A.L.R.5th 577. 26A C.J.S. Depositions §§ 47 to 50; 27 C.J.S. Discovery §§ 55, 57, 69.