Short answer. Generally, no. Section 6 provides that a party who skipped serving written interrogatories may not compel the adverse party to testify in open court, or to give a deposition pending appeal, unless the court later allows it for good cause shown and to prevent an actual failure of justice.
What the law says
Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.
Rule 25, Section 6 — Effect of failure to serve written interrogatories. Read the full provision →
The default consequence of skipping interrogatories
Failing to use written interrogatories doesn't simply mean that tool is unavailable going forward — it actively restricts a party's later ability to compel the adverse party's testimony, either in open court or by deposition pending appeal. The restriction applies specifically to the adverse party who was never served, so a party can still be compelled to testify through other ordinary means where interrogatories were never at issue.
The escape hatch
The court can still allow compelled testimony despite the earlier omission, but only for good cause shown and to prevent a failure of justice — a deliberately demanding standard, not a routine exception granted for the asking. A party invoking this exception should be prepared to explain concretely why interrogatories were never served and why denying compelled testimony now would work a genuine injustice.
Why the section is structured this way
It pushes parties to use written interrogatories during the discovery stage of the case, rather than saving compulsion of the adverse party's testimony as a tactic reserved for trial or appeal. This mirrors the similar bar Section 5 of Rule 26 imposes on a party who skips serving a request for admission, tying both discovery tools to real consequences for not using them.
What this means for trial strategy
A party who plans to rely on the adverse party's own testimony at trial, or through a deposition pending appeal, needs to build that path early by serving written interrogatories rather than assuming compelled testimony will remain available regardless. Waiting until trial to discover that this route is closed off can leave a party without an important source of proof, particularly where the adverse party's own account of events is central to the case being presented. Because the restriction targets only compelled testimony from the specific adverse party who went unserved, a party can still call other witnesses, present documentary evidence, or rely on that same adverse party's voluntary cooperation if it is offered, none of which the bar touches.
Related provisions
- Rule 25, Section 6 — Effect of failure to serve written interrogatories
- Rule 25, Section 5 — Scope and use of interrogatories