New Dairy South Carolina, LLC v. City of North Charleston, South Carolina, No. 2:25-cv-01242-DCN (D.S.C. Oct. 28, 2026), full opinion (PDF)
Rule 33(d) lets a party answer an interrogatory by specifying the records, including ESI, from which the answer can be found. A federal district judge in South Carolina has ordered a city to replace that kind of answer with narrative responses. The city had answered a series of interrogatories by citing documents, including Bates ranges that covered almost 2,000 pages. In the court's view, the city had failed to justify those citations. The order also rejected waiver as too harsh a sanction for the alleged deficiencies in the city's initial privilege log.
What happened
The plaintiff says the city downzoned property the plaintiff once owned. It claims the change cut the property's value and violated the city's comprehensive plan. One of the city's ESI productions ran to nearly 800,000 pages. The city's counsel represented that his office had not yet reviewed those documents.
Several interrogatories asked why the city adopted the plan and why it changed zoning in some areas but not others. According to the plaintiff, the city answered those by pointing to the plan itself. A request for the names of people involved in one set of communications drew Bates ranges covering almost 2,000 pages. A question asking for a single date drew a citation to 65 pages.
The plaintiff moved to compel narrative answers. Its motion also sought a finding that the city's initial privilege log was deficient enough to waive privilege. Disputes over the interrogatory count and the relevance of one line of questions, neither involving ESI, were resolved in the same order.
The court's analysis
Under the framework the court applied, a party challenging a Rule 33(d) answer must first show that the answer is inadequate. The burden then shifts to the producing party to justify its answer. In its motion, the plaintiff argued that the cited documents gave too little for the questions about motive and too much for the questions about names and dates. The court agreed that the plaintiff had met its initial burden.
In response, the city said it had cited targeted documents rather than wide Bates ranges. The court found that claim contradicted by the responses themselves and ordered narrative answers within ten days. Answers the plaintiff already considered sufficient were excused.
The plaintiff also contended that the documents the city had produced, largely emails, were not the business records Rule 33(d) contemplates. Because the city's opposition left that argument unanswered, the court granted the motion to compel on that ground as well. The business-records ruling extended the order to additional interrogatories.
On privilege, the court presumed that the city's revised log complied with the rules. Finding no indication of bad faith, unjustified delay, or inexcusable conduct by the city, the court concluded that the exceedingly harsh sanction of waiver was inappropriate. The plaintiff's separate claim of subject-matter waiver rested on the city's production of some communications with its attorney. Because the plaintiff offered no evidence that the disclosure was intentional or designed to gain an advantage, the court rejected that claim.
Why it matters
A party relying on Rule 33(d) should cite the specific records that hold each answer. The rule requires the records to be identified in enough detail for the requesting party to locate them as readily as the producing party. Deriving the answer from them must also be substantially as easy for one side as for the other. Where an interrogatory asks why a party acted, documents may not contain the answer at all. A narrative response is then the safer course from the start.
The ruling did not turn on whether the city had reviewed its production. Even so, a Rule 33(d) answer assumes the producing party knows where its answers sit. That knowledge is hard to claim after a high-volume production made before review. A producing party should confirm it can name the responsive pages before choosing to answer by reference to its production.
Whether produced emails can support a Rule 33(d) answer remains open, because the city never contested the business-records point. A party that intends to answer by citing emails should be ready to explain why they qualify as business records. Its opposition to a motion to compel should answer every ground the motion raises.
A requesting party seeking waiver from a deficient log should expect a court to look for bad faith, unjustified delay, or inexcusable conduct before ordering disclosure. Subject-matter waiver calls for evidence that a disclosure was intentional or made for litigation advantage. Prompt correction of a deficient privilege log undercuts a waiver claim based on its original defects.
The full opinion is available as a PDF.
