Chapter 3 Discovery exam questions with 100% correct answers

What are the goals of modern discovery? There are five: Give parties equal access to all data, to enable cases to be adjudicated on their merits; Determine issues that are actually in dispute; Preserve evidence that may be unavailable at trial (e.g., testimony of a terminally ill witness who may die before trial); Obtain information about additional evidence and obtain leads to new evidence; Facilitate required disclosure by each party under FRCP 26(a). What is the scope of discovery under the FRCP? It covers anything relevant to the action's subject matter that is not privileged, including information leading to admissible evidence. E Ch.5-II(A); F §8.3.1 pp. 378-84; FKM §7.2 pp. 399-400; FRCP 26(b). This is interpreted broadly. It may cover matters not in dispute, information about witnesses (including possible impeachment grounds), and the like. SCOPE OF DISCOVERY: RULES ON COMMON SITUATIONS As a general rule, all non-privileged information leading to admissible evidence is discoverable. Discoverable: Names of eyewitnesses Information on people who've talked to or seen eyewitnesses Hearsay Facts opponent intends to prove Facts to impeach opponent's witnesses Existence and extent of insurance coverage (even though this typically isn't admissible at trial) Facts and opinions of testifying experts Not discoverable: Trial tactics (e.g., order in which opposing witnesses will testify) Work product, including opinions of non-testifying experts (this receives only qualified immunity; discussed in detail in cards under DIS/P&I) Privileged information (this receives complete immunity; discussed in cards under DIS/P&I) Information not relevant to the litigation (e.g., facts sought merely to harass or embarrass opponent) What is "required disclosure" under the FRCP? "Required disclosure" is a supplement to the discovery process that was added by the changes to FRCP 26(a) in 1993. Essentially, it requires automatic "disclosure" of certain basic information about the action, meaning that a party is under a duty to turn it over without a request from the opposing party. Note that unlike almost anything else in the FRCP, the disclosure rule permits the district courts to adopt local rules enabling them to "opt out" of automatic disclosure for some or all cases. E Ch.5-II(I). When does the first automatic pre-discovery disclosure of information take place under the FRCP? The "initial disclosure" in a case must be made "at or within 14 days after" the parties' Rule 26(f) discovery-related conference. FRCP 26(1)(C). This Rule 26(f) conference must take place at least 21 days before a "scheduling" conference with the trial judge as required by FRCP 16(b)(2), which must be no later than 120 days after the defendant has been served with the complaint or 90 days after any defendant has appeared (answers or files a Rule 12 motion). FRCP 16(b)(2). All of this boils down to the proposition that if the parties haven't made initial disclosures by the time 85 days after the defendant answers or files a Rule 12 motion, somebody has gummed up the works! E Ch.5-II(I)(1)(d). Emma Prest sues Donald Trumpet, owner of the fabulous shopping mall Trumpet Tower, for injuries she received when an escalator at the mall malfunctioned. She seeks damages in the sum of $80,000. Emma deposes Trumpet and asks him whether he has assets sufficient to pay a judgment of $80,000. Trumpet objects, claiming the question is improper. Is he correct? Yes. Questions on the defendant's financial condition are not ordinarily discoverable, because the defendant's financial condition generally is not considered relevant to the issues of liability and damage. E Ch.5-II(H)(3); FKM §7.2 p. 404. Aimee Simple McPherson, leader of a religious cult, sues True Grime magazine for libel. McPherson alleges that due to a defamatory story True Grime printed about her, contributions to her church have dwindled. The magazine seeks discovery of the identities of all of McPherson's contributors. The court grants the discovery, but forbids the magazine from publishing contributors' names under a protective order requested by McPherson to protect the privacy interests of her following. Does this violate True Grime's First Amendment rights? No; the protective order here is proper, because it meets the following criteria for protective orders bearing on First Amendment rights: It is founded on a showing of "good cause" as required under FRCP 26(c); It is limited in its application to a civil (not criminal) case; It does not restrict the magazine from publishing the information if it can get it from other, non-discovery sources; and It does not prejudice the magazine in its ability to utilize the information in the action. The privacy interests of the followers are sufficient to justify the order. The order also discourages the chilling effect that disclosure of this kind would have on litigants in other lawsuits. Loman, a salesman, is involved in difficult negotiations with Sanders Abrasives, his employer, concerning his commissions on future sales. Loman meets with the president of Sanders, and afterward dictates a memo describing the statements made at the meeting. Subsequently, a dispute arises concerning Loman's commissions, and he sues Sanders. Loman retains Barlow, a lawyer, to represent him, and, at Barlow's request, sends a copy of his memo to Barlow. Sanders sends a Request for Production of Documents under Rule 34 to Loman. Its Third Request demands production of "all notes, documents, memoranda or other records, in whatever form, relevant to the negotiations between the parties relating to the plaintiff's entitlement to commissions under the contract." Loman does not want to produce the memo describing his meeting with Sanders' president. Which of the following responses is appropriate under the rules of discovery? a. "The plaintiff objects to the Defendant's Third Request for Production under Rule 26(b)(1)." b. "The plaintiff objects to the Defendant's Third Request for Production under Rule 26(b)(1) on the ground that the information sought is protected from discovery under the attorney-client privilege." c. "The plaintiff denies the Defendant's Third Request for Production. The only document which is responsive to the request is a memorandum dictated by the plaintiff to the file on April 7, 2001, after the meeting with the defendant's president on that date, concerning the negotiations at that meeting. This memorandum is exempt from discovery based on the attorney-client privilege, as it was communicated to Robert W. Barlow, counsel for the plaintiff, for purposes of seeking legal advice concerning this litigation." d. Either B or C is proper. e. None of the above is a proper response. e. None of the above is a proper response. Mason sues Drake in federal court for negligently causing a fire in her warehouse in Boston. A week after the fire, Mason's attorney locates and interviews Collins,who was drinking wine behind the warehouse at the time of the fire. Collins says he and Engels saw someone who looked like Drake speed away from the fire just after it began. Mason's counsel made an audio recording of the interview with Collins. Collins lives in Boston, within the district in which the suit is pending. Drake's attorney had asked Collins to come in to discuss the case informally with him, but Collins refused. Drake serves interrogatories on Mason asking Mason to "state the names of any witnesses who may have knowledge of the events giving rise to this action." He also sends a request for documents, which requires Mason to "produce any statements you or your attorney have from any witness regarding the cause of the fire." Mason's counsel responds by objecting to both the interrogatory and the request on the ground of "work product." Which of the following statements is true? a. Mason may refuse to answer the interrogatory and to produce the tape, based on the work product doctrine. b. Mason must answer the interrogatory, and will have to produce the tape of the interview, since Drake can make the showing required under Rule 26(b)(3) for production of work product materials. c. Mason must answer the interrogatory, but the request for production of the tape is probably protected from disclosure under Rule 26(b)(3). d. Mason must produce the tape under Rule 26(b)(3)(C), because it contains the statement of a witness. c. Mason must answer the interrogatory, but the request for production of the tape is probably protected from disclosure under Rule 26(b)(3). Relevant matter is discoverable as long as it isn't privileged under FRCP 26(b). What does "privileged" mean? The word is used to describe evidentiary material that is protected against disclosure at trial under some overriding public policy. E Ch.5-II(D); F §8.3.1 p. 381; FKM §7.4 p. 406. The term "privilege" includes attorney-client privilege, spousal privilege, priest-penitent privilege, privilege against self-incrimination, and the like. F §8.3.1 p. 381; FKM §7.4 p. 406. Keep in mind that the FRCP don't specifically recognize any privileges; except for privileges that are guaranteed under the Constitution, the federal courts must look to the state law supplying the rule of decision to determine if and when a privilege applies.