Chapter 8 Discovery Flashcards
In a patent infringement action by ABC, Inc. against XYZ Corp., XYZ submitted a list of interrogatories. ABC responded to most of them but refused to answer one on the ground that it called for the disclosure of a trade secret. The answer to the question was necessary for XYZ to build its defense. After meeting and conferring, XYZ moved for an order compelling ABC to respond to the previously unanswered interrogatory. The court agreed with XYZ that protected trade secrets were not involved and ordered ABC to respond to the interrogatory within five days. Two weeks later, ABC had still not responded to the interrogatory at issue. After this failure came to the court’s attention in a letter to the court from XYZ, the court asked ABC to show cause why it should not be sanctioned. ABC responded by indicating that it would not respond to the question under any circumstances. In light of ABC’s response, the court dismissed ABC’s claim with prejudice as a sanction for failing to comply with the court’s order. Was the imposition of the sanction of dismissal an abuse of discretion under these circumstances?
No, because ABC failed to comply with a court order and the sanction of dismissal is authorized by the Federal Rules.
ABC, Inc. initiated an action in federal court against XYZ Corp. alleging breach of contract. In response to a document request from ABC, XYZ reviewed all documents for responsiveness and privilege. XYZ decided to have a rolling production, meaning it would produce responsive, non-privileged documents as they came across them but withhold documents that needed further privilege review. In other words, some documents would be produced with certain files or pages missing because they had been pulled for further privilege review. However, after the review was completed, those missing files and pages would be grouped together and produced, which could be weeks later. ABC objects to this manner of production. Does ABC have a valid objection?
Yes, because XYZ is required to produce documents as they are kept in the usual course of business.
A citizen of State A initiated a class action in State A federal court against an oil company for polluting—over a 10 year period—a river that provided drinking water for the citizen and everyone else living in a local community. After the action was filed, the manager of the facility alleged to be responsible for the pollution—he was unaware of the lawsuit—sent a note to all workers at the facility “to make sure that we are current with our document retention policy implementation.” As it turns out, they were not current so the workers destroyed all electronically stored information that was older than three years, the stated period in the document retention policy for keeping documents on hand. During discovery, the attorney for the class requested “all documents from the past 10 years pertaining to the discharge of waste into the river from the State A facility.” The oil company responded with a production that covered only the past three years. After meeting and conferring, the class attorney learned that no other documents existed because the company’s document retention policy called for destroying electronically stored information after three years. The class counsel asked when documents had been destroyed and the attorney for the oil company indicated that the destruction occurred soon after this case was filed. The attorney for the class moved for sanctions against the oil company, seeking an order to the jury to presume that the lost information was unfavorable to the oil company (this is known as a mandatory adverse inference). How should the court rule?
Deny the motion, because there are no facts indicating that the oil company destroyed the material with the intent to deprive the citizen of its use in the litigation.
A car driver was in an accident with a pedestrian in State A. Because the driver was from State B, the pedestrian initiated a negligence action in State B federal court against the driver, seeking $100,000 in damages. During discovery, the pedestrian requested from the State B federal court a subpoena to be issued commanding an eyewitness from State A to appear for a deposition at the offices of the pedestrian’s attorney in State A, which were approximately 150 miles from where the eyewitness resided. The clerk issued the subpoena and the pedestrian had it served properly. You represent the eyewitness who has now received this subpoena. How should you advise the eyewitness to respond to this subpoena?
Move to quash the subpoena in State A federal court for requiring compliance beyond the permitted geographical limits.
You represent a major retailer involved in litigation against a supplier for breach of contract. The retailer would like to obtain some answers to two straightforward questions from a competitor to determine whether the supplier provided supplies to the competitor that had been promised to the retailer. Those questions would be “In the past year, did your company receive X supplies from the supplier?” and “Were you aware that the supplier had previously agreed to provide X supplies to the retailer?” The competitor is acrimonious toward your client and is not likely to be willing to answer these questions. Which of the following would be the best way to obtain answers to these questions from the competitor?
Serve on the competitor a subpoena to appear at a deposition at which the two questions will be posed.
ABC Inc. initiated an action against XYZ Corp. for patent infringement. XYZ retained an expert to advise its lawyers on the scientific and technical aspects of the case. In the course of this relationship, the XYZ attorneys shared with the expert copies of design plans for the allegedly infringing device and asked the expert to determine whether the device relied upon or incorporated ABC’s patented process. The expert prepared a report for the XYZ attorneys outlining her views on that topic. However, because this expert would not testify as a witness at trial, XYZ did not disclose the report to ABC. During discovery, ABC requested and the court issued a subpoena to XYZ’s expert to appear at a deposition and to bring “any document in which the expert reported his or her evaluation of the allegedly infringing device and patented process at issue in this case and any material shared with you by XYZ that you considered in forming your opinion.” Which of the following represents the strongest ground for objecting to this subpoena?
Non-testifying experts are immune from being deposed absent exceptional circumstances.
A former employee initiated a breach of contract claim against an employer for terminating the employee prior to the end of the contract period without paying the agreed upon severance payment to the employee. During discovery, the employer moved for an order requiring the former employee to submit to a mental examination by an independent physician. The employer intends to show that the former employee’s psychological problems motivated the termination. Which of the following would be the best ground for opposing this request?
The employer cannot show good cause for obtaining a mental examination.
During the course of a medical malpractice action between a doctor and a patient, the hospital where the disputed medical care was given was served with a subpoena asking to depose the CEO of the hospital and for the CEO to produce “all documents pertaining to the medical care given to the patient during the visit at issue in this case; any such documents should be converted to an electronic format.” Which of the following would be an appropriate objection for the hospital to raise in response to this request?
The request improperly asks for documents to be converted to an electronic format.
A citizen initiated an action against a police officer asserting a claim under 42 U.S.C. § 1983. During the course of a deposition of the police officer the attorney for the citizen asked, “Describe what happened when you had the plaintiff in custody.” The attorney for the police officer objected, saying “Objection; the police officer cannot possibly remember what happened so long ago.” The police officer then proceeded to answer the question by saying, “I can’t recall what occurred during that period.” You are the attorney for the citizen. Is there anything improper that you can identify in the exchange above?
The objection by the police officer’s attorney is improper because it is suggestive.
A customer initiated an antitrust action against ABC, Inc. in federal court, seeking $500,000 in damages. During discovery the customer requested “All documents relating to discussions with competitors about market share and pricing over the last 20 years.” ABC informed you, ABC’s lawyer, that such documents beyond the most recent 10 years were located exclusively on backup tapes and that it would cost $100,000 to extract the requested documents from them, an amount ABC does not want to pay. Which of the following would be the most effective response to the customer’s request in light of the information ABC has given to you?
Decline to produce the documents located on the backup tapes by identifying them as not reasonably accessible.
An employee initiated an action in federal court against an employer for discrimination in failing to promote the employee to an available position. During discovery, the employee requested production of company organization charts, accounting audits of the employee’s department, personnel and payroll information for the duration of the employee’s employment, agendas from board meetings, and work performance and payroll information for the plaintiff-employee and other employees. The request asked that these documents be produced in their native format, which means the format in which the document was created. The employer responded by producing all of the requested documents in Portable Document Format (PDF), even though that was not their native format and even though the employer ordinarily maintained all of the documents in their respective native formats. The employee objected to this form of production and after meeting and conferring with the employer, the employee filed a motion to compel production of the documents in their native format, which would consist of word processing and spreadsheet formats that would reveal information about the author, creation date, and history of each document. How is the court likely to rule on the motion to compel?
Grant the motion, because the employee is entitled to specify the form for producing electronically stored information and producing it in its native format would not be unduly burdensome.
A cellphone company initiated an action against a competitor alleging patent infringement based on the competitor’s production of a phone that had multiple design components that appeared to reflect unlicensed uses of the cellphone company’s patents. During discovery, the cellphone company requested detailed design plans of the competitor’s allegedly infringing product, information that is critical to the cellphone company’s ability to establish its claim. The competitor is concerned that such information consists of confidential trade secrets. You represent the competitor. Which of the following responses is the most likely to be successful in addressing the competitor’s concern?
Seek a protective order requiring that the trade secrets only be revealed to the judge and an attorney for the cellphone company.
An entrepreneur wanted to retain a certified public accountant (CPA) to assist him with preparation of tax return forms. Although not licensed to practice law, the CPA was a graduate of the local law school, where she had focused on all aspects of state and federal tax law. During their initial meeting, the entrepreneur asked if he had to declare income received for serving as the member of the board of directors of a company based in Bermuda. The CPA responded that he would have to report it on his state and federal tax forms. The entrepreneur decided not to retain the CPA and instead prepared the tax returns on his own. The entrepreneur did not report the Bermuda board income on either the state or federal tax returns. The Commissioner of the Internal Revenue Service initiated a tax deficiency action against the entrepreneur for taxes owed on the unreported Bermuda board income. During discovery, the Commissioner called for a deposition of the CPA. The Commissioner’s attorney asked the CPA to discuss her conversation with the entrepreneur regarding the Bermuda board income. Does the attorney-client privilege protect the CPA from answering this question?
No, because the CPA was not a licensed attorney during the conversation in question.
A passenger initiated an action in federal court against a bus company seeking damages for injuries sustained when a bus operated by the company crashed into a ravine. The driver of the bus was critically injured but survived the accident initially. Attorneys for the passenger visited the bus driver in the hospital to interview him about the accident. The attorneys took extensive notes documenting the driver’s explanation of what happened leading up to the accident. Sadly, the bus driver died from his injuries two days later. During discovery in this case, the bus company issued a request for the notes of the bus driver interview prepared by the passenger’s attorneys. After meeting and conferring about the request, the passenger filed a motion for a protective order that would permit the withholding of the notes. How should the court rule?
Deny the motion, because the bus company has substantial need for the notes (allowing that any mental impressions will be protected from disclosure).
At a cocktail party, the host asked a guest, in private, “You are a lawyer; can you tell me whether I can be held liable for any car accidents that my guests are in as they leave my party since I secretly spiked the punch with vodka?” The guest responded, “Although I am a lawyer licensed to practice in this state, I am insufficiently familiar with the law on that topic to advise you.” As it turns out, a couple was involved in a fatal accident as they were leaving the party. The surviving son of the couple initiated a wrongful death action against the host of the party. During a deposition of the guest, the attorney for the surviving son asked the guest, “You had a brief conversation with the host at the party. What did you talk about?” The attorney for the host objected to the question on the ground that answering the question would violate the attorney-client privilege of the host. Is this a valid invocation of the attorney-client privilege?
Yes; the attorney-client privilege applies because the host’s conversation with the guest was in confidence and sought legal advice from a licensed attorney.
