Chapter 8: Discovery

Which of the following are possible under the Federal Rules of Civil Procedure?

A deposition to perpetuate testimony when a person expects to be a party to an action in federal court but cannot presently bring it or cause it to be brought or while a case is on appeal for use in the event of further proceedings in the court from which the appeal has been taken and A stipulation by the parties permitting a deposition to be taken by any person, at any time or place, on any notice, and in any manner specified and A deposition upon written questions and A stipulation by the parties extending the time for any form of discovery provided it would not interfere with the time set for completing discovery, for hearing a motion, or for trial

Under Federal Rule 26(e)(1), when is a party under a duty to amend a prior interrogatory response?

A party must amend in a timely manner if the party learns that in some material respect the response is incomplete or incorrect. and A party must amend if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. and A party must amend if the court orders an amendment.

Assume that P knows that D stated to the police that the speed of D's vehicle was 40 miles per hour immediately prior to the accident. Which of the following would be the MOST EFFECTIVE discovery method to conclusively establish this fact?

A request for admission requiring D to admit the speed of D's vehicle immediately prior to the accident.

Assume that P wants to inspect and test the mechanical condition of D's vehicle. Under the Federal Rules of Civil Procedure, which of the following would be the MOST EFFICIENT and EFFECTIVE discovery method for this purpose?

A request under Rule 34 allowing entry upon designated land or other property in D's possession or control for the purpose of inspection and testing of the operation of D's vehicle.

Assume that the defendant has served an answer containing, inter alia, the following affirmative defense: "The plaintiff negligently failed to keep a proper lookout for motor vehicles on the time and place described in paragraph 2 of the complaint; and defendant negligently stumbled or fell in front of the defendant's motor vehicle as a result of the plaintiff's intoxication at the time and place described in paragraph 2." Under the Federal Rules of Civil Procedure, which of the following is the LEAST LIKELY to have to be disclosed automatically by the parties?

All of P's medical records (for inspection and copying as under Rule 34) related to the injuries sustained by P in the accident.

Assume that P has alleged the following in a complaint filled in federal court: (1) Plaintiff is a citizen of State X and defendant is a citizen of State Y. The matter in controversy exceeds, exclusive of interest and costs, the sum of seventy-five thousand dollars; (2) On March 1, 20xx, in a public highway called Market Street in Metro City, State Q, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway; (3) As a result plaintiff was thrown down and had the plaintiff's leg broken and was otherwise injured, was prevented from transacting the plaintiff's business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of twenty thousand dollars; and (4) Wherefore plaintiff demands judgment against defendant in the sum of one hundred thousand dollars and costs. Assume that P does not know the speed of D's vehicle immediately prior to the accident but would like to determine it. Which of the following would be the MOST EFFICIENT and EFFECTIVE discovery method for this purpose?

An interrogatory requiring D to state the speed of D's vehicle immediately prior to the accident.

Assume that P suspects that D was not keeping a proper lookout because D was distracted at the time of the accident--perhaps by lighting a cigarette, changing the radio station, or talking on the phone. P is concerned that D might be evasive about what D was doing immediately prior to the accident. Which of the following would be the MOST EFFICIENT and EFFECTIVE discovery method to determine what, if anything, might have distracted D?

An oral deposition in which D can be questioned about what D was doing immediately prior to the accident.

Assume that the court orders the plaintiff in a civil action in federal court pursuant to Federal Rule 35. P refuses to submit to the examination. Which of the following sanctions, if any, CANNOT be imposed on the plaintiff?

An order striking out all or part of the recalcitrant party's pleading until the order is obeyed.

Assume D wants P to undergo a physical examination pursuant to Federal Rule 35 and the court orders P to undergo a physical examination Which of the following sanctions, if any, cannot be imposed for failure to comply?.

An order treating P's failure as a contempt of court.

The scope of discovery is defined in Rule 26(b)(1) of the Federal Rules of Civil Procedure. Under the current version of the rule, discovery is allowed of what? (Note: In the law of evidence, certain subject matters are "privileged" and cannot be inquired into in any way. Usually, privileges exist not because of a fear that information provided will be inaccurate, but because there are public policy reasons the information should not be disclosed. Examples of privilege include the privilege against self-incrimination, spousal communications privilege, and attorney-client privilege.)

Any nonprivileged matter that is relevant to the claim or defense of any party in the pending action and proprotional to the needs of the case.

Assume that D responds to an interrogatory that the speed of D's vehicle was 40 miles per hour immediately prior to the accident. At trial, D wants to offer the testimony of an expert that the speed of D's vehicle was no more than 35 miles per hour immediately prior to the accident. Which of the following statements about this situation is correct?

Assuming it is otherwise proper, the expert's testimony will be allowed; however, P will be allowed to introduce the answer to the interrogatory in evidence because it is an admission of a party opponent.

This is false regarding depositions

Because there is no judge, jury, or maybe even other lawyers at a deposition, a witness does not have to answer all questions truthfully because depositions are not taken under oath; in fact, many people lie in depositions and get away with it.

Rule 26(b)(4)(C), adopted in 2010, specifically protects attorney communications with any expert who is required to prepare a report, regardless of the form of communications. Are there any specific exceptions recognized?

Communications regarding the expert's compensation for study or testimony are not protected. and Communications that identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed are not protected; however, this exception applies only to the identification of facts, not to communications about the potential relevance of the facts or data. and Communications identifying the assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed are not protected.

Assume that one of P's interrogatories served on D requested D state the speed of D's vehicle was traveling at the time of the accident. Assume that D answers with a speed that was in excess of the posted speed limit. Assume that D later learns that D's speedometer did not accurately display the correct speed and that D now believes that D's vehicle was traveling within the posted speed limit. Which of the following is an accurate statement?

D is required to amend a prior interrogatory response in a timely manner because D has learned that in some material respect D's response is incomplete or incorrect-assuming that the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

P is a passenger on D's bus and is injured when the bus is involved in an accident. In its investigation of the accident, D discovers the identity of two eyewitnesses to the accident, A and B, and interviews them. A's version of the accident would support D's position, but B's would not. Consequently, D would use A, but not B, in its defense of P's claim. Must D disclose the identity of A or B under Rule 26(a)(1)(A)(i) ("Initial Disclosures")?

D must disclose the identity of A, but not B.

Assume that the answers to one of P's interrogatories is contained in D's business records and may be derived or ascertained from the business records. D is able to make those business records available to the party serving the interrogatory in lieu of answering it. Which of the following is an accurate statement about D's ability and obligations in order to do so?

D must provide sufficient detail to enable P to locate and identify them as readily as D could. and The burden of deriving or ascertaining the answer will be substantially the same for either P or D.

P was killed in an auto accident. P was a passenger in D's car. Prior to the accident, P and D had been alone. The accident occurred late at night when D's car crashed over a bridge after making a wrong turn. There were no witnesses to the accident other than D. D reported the accident the next morning. Assume that P's estate has commenced a civil action against D. The attorney representing P's estate in a civil action against D asks the following question in an interrogatory to D: "How many drinks did D have immediately prior to the accident?" Without D's attorney's knowledge, D answers the question falsely because D knows that it will be very difficult for P's estate to prove otherwise. Later, while D's attorney is preparing for trial, D tells the attorney that D did not answer the interrogatory truthfully. What should D's attorney do?

D's attorney must advise D to amend D's incorrect response to the interrogatory in a timely manner; if D refuses to amend the response, D's attorney may have to withdraw representing D. and D's attorney can do nothing if the corrective information has otherwise known to all the other parties during the discovery process.

This statement regarding subpoenas is false.

Failure to obey a valid subpoena without an adequate excuse is not a contempt of court if the witness is not a party to the action.

P sends a request for admission to D pursuant to Federal Rule 36. With which of the following requirements must D comply?

If D objects to a request, D must state the reasons for the objection. and D may cite lack of information or knowledge as the reason for failure to admit or deny only if D states that D has made reasonable inquiry and that the information D knows or can readily obtain is insufficient to enable D to admit or deny. and If D responds to the request, D's answer must specifically deny the matter or state in detail why D cannot truthfully admit or deny it.

What are "claw back" provisions?

If a producing party inadvertently disclosed privileged material in response to a discovery request, the producing party can notify the receiving party of the claim and the basis and the receiving party may not thereafter use or disclose the information until the claim has been resolved.

P and D are involved in an auto accident in which D collided with P's automobile from the rear. P sues D in a diversity action in U.S. District Court. P serves several interrogatories on D pursuant to Federal Rule 33. One of the interrogatories is as follows: "State in detail all facts in D's possession concerning the accident." On what basis or bases could D object?

In D's response to the interrogatories, D should object to this one because it is overbroad.

Which of the following types of interrogatories are not permitted.

Interrogatories seeking privileged information.

All of the following are a basis for a motion to terminate or limit a deposition.

Justifiable embarrassment and Bad faith in conducting the deposition and Unreasonable annoyance and Unreasonable harassment or oppression

Rule 16 expressly provides for a series of pretrial conferences during the action to allow the judge to manage cases effectively and efficiently. Which of the following, if any, is an accurate statement about the final pretrial order that results from the final pretrial conference?

Matters included in the pretrial order are preserved for trial even though never asserted in prior pleadings.

P has sued D, an attorney, for filing false reports in a probate proceeding and stealing a substantial sum of money for the estate assets. D denies any wrongdoing. P plans to call W as a witness at trial who will testify that D told W that D lied on D's bar admission application as part of the process of calling into question the credibility of an individual testifying in a trial. Does P have to disclose W and the subject of W's testimony?

No, because W's testimony would be used for impeachment purposes only.

Do competency objections need to be raised?

No, because they cannot be cured

Do relevancy questions need to be raised?

No, because they cannot be cured.

In absence of a court order, what is the maximum length of time that W's deposition may last?

One day consisting of seven hours.

Assume the following interrogatory is relevant to an issue in a case pending in federal court: "State whether the defendant was engaged in interstate commerce at the time of the accident." What type of interrogatory does this question best illustrate?

One that calls for application of law to fact.

These may be basis for seeking a protective order

Oppression and Annoyance and Embarrassment and Undue burden and expense

Assume that D has served a request on P for production that includes all electronic stored documents dealing with a particular subject within the scope of discovery. Which of the following, if any, is a correct statement about electronic discovery under the Federal Rules of Civil Procedure?

P does not have to provide discovery of electronically stored information, even though relevant and otherwise discoverable, if the party identifies the "sources" of information "as not reasonably accessible because of undue burden or cost." such as back-up tapes intended for disaster recovery, legacy data from obsolete systems unintelligible on successor systems, and "deleted" data in fragmented form requiring a modern version of forensics to restore and retrieve. and If P inadvertently discloses privileged or work-product information as part of responding to D's discovery request, P can notify D of the privilege or work-product claim and the basis for that claim; thereafter, D may not use or disclose the information until P's claim has been resolved.

Assume that P and D (a pedestrian) have had an auto accident and that P has commenced a diversity action against D based on D's alleged negligence. Assume that D fails to respond clearly to P's interrogatory asking D to state the speed of D's vehicle immediately prior to the accident. What happens next?

P must in good faith confer or attempt to confer with D in order to secure the answer without court action; thereafter, P may seek an order compelling D to answer.

Assume that P wants to take the oral deposition of D during the normal course of the litigation. Under the Federal Rules of Civil Procedure, which of the following would be the first step that P should undertake to take D's deposition?

P should give reasonable notice in writing to D naming D as the deponent and stating the time and place for taking the deposition.

P sues D in a federal court to recover for injuries in an automobile accident. D defends by claiming that aliens took control of D's car and that this sudden mental illness is a defense to P's claim of negligence. Which of the following statements are likely to be correct?

P will likely to be able to meet the good cause standard of Federal Rule 35.

P sues D for breach of warranty. P's complaint alleges that component parts supplied by D were "defective" in some unspecified manner. In addition to seeking general damages of $200,000, P also asserts a special damage claim for loss of profits of $800,000. With regard to P's damage claims, which of the following statements, if any, accurately states what P's disclose obligations in conjunction with P's initial disclosures under Rule 26(a)(1)(A)(iii) ("Initial Disclosures")?

P would have to disclose information about how P calculated P's general damages (such as the difference between the contract price and the market price). and P would have to disclose how P calculated the lost profits; P's disclosure would only need to be a reasonable one under the circumstances.

Assume that D wants to take an oral deposition of W, a key witness. What is accurate with regard to W's deposition?

Service on W cannot be accomplished, leaving at W's dwelling, or W's place of work;

What must a party do to use a deposition not recorded stenographically at a dispositive motion or at trial?

Submit a transcript of the portions to be introduced for court use.

from which court is a subpoena to testify at an oral deposition issued and what are the geographic limits for service?

Subpoenas are issued only from the court where the action is pending; and subpoenas can be served nationwide.

The following is true regarding subpoenas

The clerk will issue subpoenas with the name of the recipient left blank. and Service of a subpoena to appear for an oral deposition must be personal, not left at the witness' dwelling or place of work. and Service of a subpoena must be accompanied by the tender of the fees and expenses for a 1-day appearance. and Subpoenas must be used on non-parties in order to make them appear for a deposition.

A large company is involved in litigation in federal court as a defendant in a civil price-fixing action. It turns out that an employee deleted emails implicating the employee in price fixing shortly before the employee was fired but before the lawsuit was filed. The plaintiff has served a discovery request seeking, inter alia, the employee's emails. The deleted emails can be easily retrieved on backup tapes. Which of the following identifies what the company should do with regard to this electronic discovery request?

The company should produce the emails even if it hurts the company's defense.

Which of the following is MOST LIKELY to be the first event in the discovery stage?

The court sets a date for an initial scheduling conference and the parties meet to develop a discovery plan.

Assume D wants P to undergo a physical examination pursuant to Federal Rule 35. What is true about this examination process?

The court's order must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. and In order to secure a physical examination of P, the court must find that P's condition is "in controversy." and In order to secure a physical examination of P, D must show "good cause." and If P requests a copy of the report resulting from the examination, P waives any privilege P may have in the action regarding the testimony of every other person who has examined or may thereafter examine P with respect to the same physical condition.

The following are all basis for a court to limit discovery.

The discovery is unreasonably cumulative or duplicative. and The discovery is conveniently obtainable from other sources. and The discovery is unduly burdensome or expensive given the nature of the case. and The party had an ample opportunity during prior discovery to obtain the information.

Assume that D wants to take an oral deposition of W, a key witness. W wants to object to having to appear and testify. Which of the following courts would be the court where W should assert W's objections?

The district court for the district where compliance is sought

In most cases, discovery enforcement under Rule 37 proceeds in two stages. First, a motion is brought under Rule 37(a) for an order compelling disclosure or discovery refused by another party. If an order is entered and the party still refuses to comply, the next stage is to seek sanctions under Rule 37(b)(2) for violation of the court's order. Sometimes, however, a court can proceed directly to sanctions. Which of the following grounds, if any, would be an example of when a court might do so?

The failure of the party or its designated agent to appear at his or her scheduled oral deposition.

Under the current version of Federal Rule 26(b), what factors is the court directed to consider when the court is deciding whether discovery is proportional to the needs of the case?

The importance of the issues at stake. and The amount in controversy. and The parties' relative access to information. and Whether the burden or expense of the proposed discovery outweighs its likely benefits. and The parties resources.

P and D are involved in an auto accident in which D collided with P's automobile from the rear. P sues D in a diversity action in U.S. District Court. P serves several interrogatories on D pursuant to Federal Rule 33. One of the interrogatories is as follows: "State whether D is a homosexual." On what basis or bases could D object?

The information sought is irrelevant to any party's claim or defense. and The question amounts to harassment.

What must be done following a deposition?

The party taking W's deposition must promptly file a copy of the deposition with the court.

Rule 34 requests

The procedure for obtaining access to documents and things within the control of other parties

In the context of civil procedure, to what does the term "discovery" refer?

The process that is used to discover facts significant to the preparation of the case and known to the opposite party using discovery devices, including depositions, interrogatories, requests for admissions, requests for production of documents, requests for inspection, and e-discovery. and The entire efforts of a party to a lawsuit and the party's lawyers to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. and In law, "discovery" is the exchange of legal information and known facts of a case in order to identify and narrow the issues in the case and to prepare for trial.

What does a subpoena seek when required to give notice to the other parties to an action?

The production of documents, electronically stored information, or tangible things, or the inspection of premises before trial.

None of the following are grounds for directing a witness not to answer a question during a disposition

The question is irrelevant. or The question has been asked and answered. or The question is a leading question. or The question is outside the areas of inquiry identified in the notice of the deposition of a party representative.

P takes D's oral deposition. Assume D fails to object seasonably during the deposition in the following situations on the ground stated. Assume that the objection is being raised for the first time at trial. Of the following situations, which, if any, are likely to result in a waiver of the objection under the Federal Rules of Civil Procedure?

The question was irrelevant. and D, the witness, did not properly take the oath or affirmation.

Assume that P is in doubt whether D has sufficient assets to satisfy the judgment P hopes to obtain in P's pending negligence action. Pursuant to Federal Rule 33, P serves D with a set of interrogatories, one of which asks what D's net worth is. Assume that D wants to object to this interrogatory. Which of the following is the BEST ground for doing so?

The requested information is outside the scope of discovery.

Assume that P takes D's oral deposition. Assume D fails to object seasonably during the deposition in the following situations. Assume that the objection is being raised for the first time at trial. Of the following situations, which, if any, did NOT result in a waiver of the objection under the Federal Rules of Civil Procedure?

The witness was incompetent to testify because the witness is too young.

Rule 36 Requests

This procedure allows a party to serve on any other party a written request to admit (for purposes of the pending action only) the truth of any matters within the scope of rule 26(b)(1)

Rule 35 Requests

This rule authorizes the court (on motion for good cause) to order a party whose mental or physical condition (including blood group) is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.

Rule 31 procedure

This rule permits a party to depose any person (including a party) by means of written questions; the deponent's attendance may be compelled by subpoena under Rule 45

Rule 33 requests

This traditional type of discovery allows any party to serve written questions on any other party; that party must respond within 30 days.

In an action pending in federal district court, when is directing a witness not to answer a question during an oral deposition permitted?

To claim privilege. and To enforce a court directive limiting the scope or length of the examination. and To suspend the deposition for purposes of a motion for a protective order relating to improper harassing conduct.

Directing a deponent not to answer a question during a deposition is allowed in which of the following circumstances?

To claim privilege. and To enforce a court directive limiting the scope or length of the examination. and To suspend the deposition for purposes of obtaining a motion for a protective order relating to improper harassing conduct.

Assume that D wants to take an oral deposition of W, a key witness. W wants to object to having to appear and testify. Which of the following would NOT be a proper basis for objecting?

W believes that W has no useful or relevant information regarding the accident because W arrived at the scene of the accident after it happened.

Which one is NOT a basis for limiting discovery?

When the information sought is not admissible in evidence.

How to determine whether an objection must be made in a deposition?

Whether the examiner could rephrase the question to cure it (e.g. leading question or foundation)

Under the Federal Rules of Civil Procedure, what should happen when a party withholds privileged information or work product information in response to a discovery request or a required disclosure?

Withholding parties must notify other parties if they withhold privileged or trial-preparation material in response to a discovery request or from a required disclosure under Rule 26. and Withholding parties must provide a sufficient description and explanation to enable other parties to assess whether the protection applies. and Before a party moves for an order compelling discovery of withheld information, that party must attempt in good faith to confer and resolve the matter without court intervention.

P sues D for breach of warranty. P's complaint alleges that component parts supplied by D were "defective" in some unspecified manner. Would D have to disclose the existence of insurance covering the potential claim, including the policy limits?

Yes, D would have to disclose the existence of an insurance agreement and make it available for inspection and copying.

Assume that in premises liability cases, to prove negligence or fault, the applicable law does not permit the injured party to introduce into evidence that the possessor of land repaired the dangerous condition after the accident. Assume that the plaintiff, the injured party, properly commences a diversity action against the possessor of the land, the defendant, in federal district court. During discovery, P's lawyer serves an interrogatory requesting the defendant to detail what subsequent remedial measures had been taken. P's lawyer wants to find out this information in order to show the practical feasibility (ease and lack of expense) of eliminating the danger. Is this interrogatory within the scope of discovery?

Yes, parties may obtain discovery of any non-privileged matter that is relevant to any party's claim or defense (assuming that it is proportional to the needs of the case).

How far away may a person be compelled to attend from a subpoena?

within 100 miles of the location where the subpoenaed person resides, is employed, or regularly transacts business in person.