Declaration for Additional Discovery in California: What It Must Say

A Declaration for Additional Discovery in California is a sworn statement you attach to a set of specially prepared interrogatories or requests for admission when that set will push your cumulative total on the receiving party past 35. The declaration is what lets you exceed the 35-question cap without first getting a court order. Get it right and the other side has to answer. Skip it, or draft it poorly, and they can refuse to answer anything past the first 35.

When You Need One

California caps specially prepared interrogatories at 35 per party over the entire life of the case.¹ A separate cap of 35 applies to requests for admission that do not go to the genuineness of documents.² The two caps are independent. You can serve 35 of each without any declaration.

The cap is cumulative across every set you send to a given party, not per set. If your first set contained 20 specially prepared interrogatories, you have 15 left before you need a declaration. The moment a later set pushes the running total past 35, that set needs the declaration attached.

Some categories sit outside the cap entirely and do not require a declaration. Official form interrogatories have no numerical limit. Requests for admission asking the other side to admit the genuineness of a specific document are unlimited, although a court can still restrain them if they become oppressive.² Supplemental interrogatories, which ask for updated information on subjects the other party already answered, also fall outside the 35 and do not need a declaration.³

What the Declaration Must Say for Interrogatories

Code of Civil Procedure Section 2030.050 provides a template, and your declaration must “substantially” follow it. Exact phrasing is not required, but every element is. The declaration is signed under penalty of perjury and must include:⁴

Your identity, stating whether you are a self-represented party or the attorney of record for a named party.
Identification of the set of interrogatories being served and the party receiving them.
Confirmation that this set will push the total number of specially prepared interrogatories past 35.
An accounting of prior discovery: the total number of interrogatories previously served on this party, broken out between specially prepared and official form, and the number of specially prepared interrogatories in the current set.
A statement that you are familiar with the issues in the case and with the prior discovery all parties have conducted.
A statement that you have personally examined each question in the set.
The justification for the additional questions, tied to the specific statutory factors in Section 2030.040.
Certification that none of the questions are propounded to harass, cause unnecessary delay, or needlessly increase litigation costs.

The justification section is where declarations most often fail. Writing “the case is complex” and leaving it at that invites a protective order challenge. Connect each statutory factor you invoke to the actual issues, parties, and information at stake in your case.

What the Declaration Must Say for Requests for Admission

The declaration for requests for admission follows an almost identical template under Section 2033.050.⁵ Two differences matter. The prior-discovery accounting simply totals the requests for admission previously served, because there are no “form” requests for admission to separate out. And the justification section points to Section 2033.040, which gives you a narrower set of grounds than the interrogatory statute.

The Justification Factors

What you can argue depends on which type of discovery you are propounding.

Interrogatories

Section 2030.040 recognizes three grounds:⁶

Complexity or volume of the issues. The number and nature of existing and potential claims, cross-claims, or defenses require more than 35 questions. Multi-party cases, cases with multiple transactions, and cases with both liability and damages disputes typically fit here.
Cost of depositions. Gathering the same information through oral depositions would impose a disproportionate financial burden compared to written interrogatories.
Efficiency of written discovery. The information sought requires the responding party to search files, investigate internally, or compile records, making interrogatories a more practical tool than depositions.

You can rely on one factor or several. The declaration must explain why the factor you invoke applies to your case specifically.

Requests for Admission

Section 2033.040 allows only one justification: the complexity or quantity of the existing and potential issues in the case warrants the additional requests.⁷ The deposition-cost and efficiency arguments available for interrogatories do not apply. And if the other side challenges the number, the burden sits squarely on you to justify it.

How to Serve the Declaration

You do not file the declaration with the court. You attach it physically to the set of interrogatories or requests for admission and serve the whole package on the responding party.⁴ A copy also goes to every other party who has appeared in the action, unless the court has excused that requirement.

If the declaration contains the required elements and is properly attached, the responding party cannot refuse to answer just because the count exceeds 35. Without a valid declaration, the responding party only has to answer the first 35 specially prepared interrogatories and can object to everything past that number.¹

If the Other Side Challenges the Declaration

A properly attached declaration is not the end of the matter. The responding party can move for a protective order under Section 2030.090, asking the court to find that the number of interrogatories is unwarranted regardless of your declaration.⁸ Any such motion must be accompanied by a meet-and-confer declaration showing the parties attempted to resolve the dispute informally first.⁹

If the court finds your justification insufficient, it can rule that some or all of the excess questions need not be answered. It can also redirect you to depositions instead of written interrogatories. For requests for admission, the propounding party carries the burden of justifying the number if a challenge is made.⁷ Losing a protective order motion carries real cost. The court must impose monetary sanctions on the unsuccessful side unless it finds that party acted with substantial justification or that sanctions would be unjust.⁸

Federal Court Is Different

If your case is in federal court rather than California state court, none of the above applies. Federal Rule of Civil Procedure 33 caps each party at 25 interrogatories, including all discrete subparts, and there is no equivalent of the Declaration for Additional Discovery.¹⁰ To exceed 25 in federal court you need either a written stipulation from the other party or a court order granting leave.

1
California Legislative Information. California Code of Civil Procedure 2030.030
2
California Legislative Information. California Code of Civil Procedure 2033.030
3
California Legislative Information. California Code of Civil Procedure 2030.070
4
California Legislative Information. California Code of Civil Procedure 2030.050
5
California Legislative Information. California Code of Civil Procedure 2033.050
6
California Legislative Information. California Code of Civil Procedure 2030.040
7
California Legislative Information. California Code of Civil Procedure 2033.040
8
California Legislative Information. California Code of Civil Procedure 2030.090
9
California Legislative Information. California Code of Civil Procedure 2016.040
10
Legal Information Institute (LII). Rule 33 – Interrogatories to Parties