5 Discovery Flashcards
Question 5759 (MBE Exam #3 AM)
A surgeon was operating on a patient using a new device she invented. Unfortunately, the patient died. The patient’s husband has filed a wrongful death lawsuit against the surgeon in federal court. The husband retained an expert witness who will testify at trial that the device used by the surgeon was defective and the cause of the patient’s death. The husband disclosed the identity of this expert witness and provided the expert’s report to the surgeon 30 days before the date set for trial, although the husband could have made the disclosure several months earlier. At that time, the surgeon had already hired her own expert witness to testify as to the safety of the new device. The disclosure of the husband’s expert witness had no impact on the surgeon’s pre-trial preparation.
Can the husband’s expert testify at trial?
A. Yes, because the disclosures related to this expert were made in a timely manner.
B. Yes, because the failure to timely make the expert disclosures was harmless.
C. No, because the disclosures related to this expert were not made in a timely manner.
D. No, because the timing of the disclosures was not substantially justified.
B. Yes, because the failure to timely make the expert disclosures was harmless.
Answer choice B is correct. Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless. Here, the husband’s expert witness disclosure was not timely. Expert witness disclosures must occur at least 90 days before the date set for trial. However, because the failure to disclose in a timely manner was harmless to the surgeon, the husband can use the testimony at trial. For this reason, answer choice C is incorrect.
Answer choice A is incorrect because expert witness disclosures must occur at least 90 days before the date set for trial.
Answer choice D is incorrect. Although the disclosures could have been made several months earlier and thus nondisclosure was not substantially justified, it was harmless. Therefore, the testimony could be used at trial.
PRETRIAL PROCEDURE AND DISCOVERY - Enforcement
Question 4936
A plaintiff sued a defendant for state law negligence in a federal district court sitting in diversity jurisdiction. The plaintiff was injured after tripping and falling at the defendant’s place of business and is seeking damages for injuries resulting from the fall. The defendant has liability insurance that would cover any judgment that the plaintiff might win in the case. There have been no agreements between the parties or orders by the court regarding discovery in the case. What is the defendant’s obligation with regard to the disclosure of the defendant’s liability insurance?
A. The defendant’s liability insurance agreement is not subject to discovery.
B. The defendant need only provide a copy of the liability insurance agreement to the plaintiff if the plaintiff makes a request for production of documents concerning such agreements.
C. The defendant need only provide information to the plaintiff concerning any insurance agreement if the insurer is joined as a party to the litigation.
D. The defendant must make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it.
D. The defendant must make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it.
Answer choice D is correct. Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, the defendant is required to make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it. Answer choice A is incorrect. As explained above, the insurance agreement is subject to the mandatory disclosure requirements. Answer choice B is incorrect. Even in the absence of a request for production of documents, the defendant is required to make available the liability insurance agreement under the mandatory disclosure requirements. Answer choice C is incorrect. The defendant must provide the plaintiff with any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, even if the insurer is not joined as a party to the litigation, the defendant is required to provide the agreement to the plaintiff.
PRETRIAL PROCEDURE AND DISCOVERY - Mandatory Disclosures
Question 4926 MIX MBE PQ S4
A plaintiff filed a claim against a defendant corporation in federal district court sitting in diversity jurisdiction, alleging negligence in the design of an automobile manufactured by the defendant. The plaintiff asserted that, when she was driving the automobile on a highway, the steering mechanism failed, causing her injuries. On April 1, the defendant served a request for admission on the plaintiff, asking the plaintiff to admit that at the time of the accident she was driving in excess of the posted speed limit. As of May 2, the plaintiff had not served any written answer to the defendant’s request for admission.
How will the court treat the defendant’s April 1 request for admission?
A The matter in the defendant’s request for admission is deemed denied.
B The matter in the defendant’s request for admission is deemed admitted.
C The matter in the defendant’s request for admission is neither deemed admitted nor denied, but the defendant may be able to recover any expenses incurred in proving the matter.
D The court will require the defendant to make an application for an order to compel an answer to the request before the matter is admitted.
Answer choice B is correct. Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. Here, the plaintiff failed to serve a written answer or objection to the request for admission. More than 30 days have passed since the time the request for admission was served on April 1. Therefore, the matter is admitted pursuant to Rule 36. Answer choice A is incorrect since the matter is admitted under the rule. Answer choice C is incorrect because the matter in the defendant’s request for admission is admitted when 30 days pass from the time the request for admission was served and no written response is provided. Answer choice D is incorrect. The matter is automatically admitted once 30 days pass from the date of service of the request for admission. There is no need for a motion to compel an answer to the request in order to have the matter admitted.
PRETRIAL PROCEDURE AND DISCOVERY - Discovery Devices
Question 4926 MIX MBE PQ S4
A plaintiff filed a claim against a defendant corporation in federal district court sitting in diversity jurisdiction, alleging negligence in the design of an automobile manufactured by the defendant. The plaintiff asserted that, when she was driving the automobile on a highway, the steering mechanism failed, causing her injuries. On April 1, the defendant served a request for admission on the plaintiff, asking the plaintiff to admit that at the time of the accident she was driving in excess of the posted speed limit. As of May 2, the plaintiff had not served any written answer to the defendant’s request for admission.
How will the court treat the defendant’s April 1 request for admission?
A The matter in the defendant’s request for admission is deemed denied.
B The matter in the defendant’s request for admission is deemed admitted.
C The matter in the defendant’s request for admission is neither deemed admitted nor denied, but the defendant may be able to recover any expenses incurred in proving the matter.
D The court will require the defendant to make an application for an order to compel an answer to the request before the matter is admitted.
Answer choice B is correct. Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. Here, the plaintiff failed to serve a written answer or objection to the request for admission. More than 30 days have passed since the time the request for admission was served on April 1. Therefore, the matter is admitted pursuant to Rule 36. Answer choice A is incorrect since the matter is admitted under the rule. Answer choice C is incorrect because the matter in the defendant’s request for admission is admitted when 30 days pass from the time the request for admission was served and no written response is provided. Answer choice D is incorrect. The matter is automatically admitted once 30 days pass from the date of service of the request for admission. There is no need for a motion to compel an answer to the request in order to have the matter admitted.
Question 6473 mbe pq s5
A buyer sued a dishwasher manufacturer in a federal district court sitting in diversity jurisdiction. The buyer alleged that a manufacturing defect in his dishwasher caused it to leak dirty water into the wall behind the washer. The buyer sought damages to his property as well as personal injury damages arising out of exposure to the mold that resulted from the leak. Prior to commencing suit, the buyer consulted a mold expert. After the expert gave the buyer a written report about the possible health consequences stemming from the presence of the mold, the buyer decided not to call the mold expert as a witness at trial. Instead, he sought out a manufacturing expert whom he believed would be better qualified to testify as to the defect in the dishwasher. In making his required disclosures after filing the complaint, the buyer identified only the manufacturing expert as an expert expected to be called at trial and provided his expert report. The manufacturer, learning that the buyer had consulted a mold expert, moved to compel production of the mold expert’s report. The buyer refused.
Which of the following is least likely to support the buyer’s refusal to produce the mold expert’s written report?
a The manufacturer can obtain a substantial equivalent to the report without undue hardship.
b The manufacturer has not shown a substantial need for the written report.
c The mold expert will not testify at trial.
d The report is cumulative because the buyer intends to show damages with his other expert’s testimony.
Answer choice D is correct. The court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines that the discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive. Because the mold expert likely provided different information than the manufacturing expert provided, and because this information was likely relevant to the injuries, this argument is unlikely to permit the buyer to refuse to produce the report. Answer choice A is incorrect. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. To discover such work product, the manufacturer would have to establish both that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Therefore, answer choice A would support the protection of the report under the work product privilege. Answer choice B is also incorrect because discovery of work product requires that the requesting party shows both substantial need and an inability to obtain a substitute without undue hardship. Therefore, answer choices A and B would each independently support the buyer’s refusal to produce the report as protected work product. Answer choice C is incorrect. If an expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery of the expert’s opinions is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Therefore, because the buyer does not intend to call the mold expert, his report is likely undiscoverable.
PRETRIAL PROCEDURE AND DISCOVERY - Discovery Scope and Limits
