Civil Procedure AMP - Discovery

Question 1

Federal Rule 33 provides that a party may send written interrogatories to:

A Potential witnesses

B Other parties

C Potential expert witnesses

D Other parties and potential expert witnesses

Answer 1

B

Federal Rule 33 provides that a party may send written interrogatories to other parties. Because interrogatories are sent and answered only among parties, potential witnesses and potential expert witnesses are both incorrect. J0813 Additional Learning

Question 2

As part of the discovery process, a party may not take more than ____ depositions without leave of court or stipulation of the parties.

A 8

B 10

C 5

D 12

Answer 2

B

As part of the discovery process, a party may NOT take more than 10 depositions without leave of court or stipulation of the parties. Therefore, 5, 8, and 12 are incorrect. Note that a party also may not depose the same person more than once without leave of court or stipulation of the parties, and a deposition may not exceed one day of seven hours without a court order or stipulation to the contrary. J0812 Additional Learning

Question 3

A court may order a mental or physical exam of a party if _______ and _______.

A There is cause for concern as to the party’s mental or physical condition; a party requests one

B There is cause for concern as to the party’s mental or physical condition; good cause is shown

C The party’s mental or physical condition is in controversy; good cause is shown

D The party’s mental or physical condition is in controversy; a party requests one

Answer 3

C

Under Federal Rule 35, a court may order a mental or physical exam of a party if the party’s mental or physical condition is in controversy and good cause is shown. It is not sufficient that there is cause for concern as to the party’s mental or physical condition; the party’s mental or physical condition must be in controversy. It is also not sufficient that a party requests an examination; the party must show good cause for the examination. J0814A Additional Learning

Question 4

_______ days before trial, a party must disclose to the other parties and file with the court a list of the witnesses she expects to call at trial.
response - incorrect

A At least 30

B At least 90

C Within 30

Answer 4

A

At least 30 days before trial, a party must disclose to the other parties and file with the court, the following: a list of the witnesses she expects to call at trial, the witnesses she will call if the need arises, the witnesses whose testimony will be presented via a deposition and a transcript of pertinent portions of the deposition, and a list of documents or exhibits she expects to offer or might offer if needed. Thus, at least 90 days is incorrect. Within 30 days is incorrect because these items must be submitted at least 30 days before the trial, not at any time within the 30 days leading up to it. J0804 Additional Learning

Question 5

Under the test stated in the Federal Rules, to obtain otherwise protected work product during discovery, a party must show that it has substantial need for the work product and cannot obtain the information _______.

A In an alternate way without undue hardship

B In any other way

C In an alternate way without incurring significant costs

Answer 5

A

To obtain otherwise protected work product during discovery, a party must show that it has substantial need for the work product and cannot obtain the information in an alternate way without undue hardship. The test in the Federal Rules is substantial need coupled with the inability to obtain the information another way without undue hardship, not without incurring significant costs. To be unable to obtain the information in any other way is a higher standard than the one in Federal Rule 26(b)—the information need not be unattainable otherwise, but it must cause undue hardship to obtain it in an alternate way. J0807A Additional Learning

Question 6

Which of the following statements concerning the disclosures required by the federal discovery rules is correct?

A Before making initial disclosures, a party must make a reasonable inquiry into the facts of the case

B A party need not disclose any information to the other party unless a discovery request has been made

C The initial disclosures required by the discovery rules are waived if the other party refuses to make its disclosures

D A party is obliged to make initial disclosures only after it has completed its investigation

Answer 6

A

Under Federal Rule 26, before making the required initial disclosures, a party must make a reasonable inquiry into the facts of the case. Federal Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request. Rule 26 requires a party to disclose all information then reasonably available that is not privileged or protected as work product regardless of whether the party’s initial investigation is complete or whether the other party refuses (or otherwise fails) to make the disclosures. J0801A Additional Learning

Question 7

Generally, as part of the discovery process, a party may depose _______ experts of opposing parties.

A Consulting but not testifying

B Neither consulting nor testifying

C Testifying but not consulting

D Consulting and testifying

Answer 7

C

Generally, as part of the discovery process, a party may depose testifying but not consulting experts of opposing parties. Experts who merely consult with a party but are not expected to testify may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts by other means. The choices that state that a consulting expert may be deposed are therefore incorrect. The choice that neither a consulting nor testifying expert may be deposed is incorrect because a testifying expert may be deposed. J0809 Additional Learning

Question 8

If a party inadvertently discloses privileged information or work product to opposing parties, the party disclosing the information:

A Waives the right to exclude the use of the disclosed information

B May still invoke a claim of privilege or work product if he can show a substantial need for doing so

C May still invoke a claim of privilege or work product protection

Answer 8

C

If a party inadvertently discloses privileged information to opposing parties, the party disclosing the information may still invoke a claim of privilege or work product protection. Once opposing parties are notified, they may not use or disclose the trial preparation material or privileged information until the claim of privilege is resolved. Opposing parties must take reasonable steps to retrieve the material if they disclosed it to others before being notified of the privilege. There is no requirement that a party show a substantial need for invoking a claim of privilege or work product. It is also incorrect to say that the disclosing party waives the right to exclude the use of the disclosed information. J0808B Additional Learning

Question 9

As part of the initial disclosures made during the discovery process, a party must provide to the other parties a copy or description of all documents within the disclosing party’s control that the disclosing party may use, unless:

A The disclosing party’s use would constitute hearsay

B The disclosing party’s use would be solely for impeachment

C The disclosing party’s use would be just partly for impeachment

Answer 9

B

As part of the initial disclosures made during the discovery process, a party must provide to the other parties a copy or description of all documents in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. Electronically stored information and tangible items that the disclosing party may use to support its claims or defenses likewise must be so disclosed. The disclosing party’s use of this material partly for impeachment (and partly as substantive evidence) would not be sufficient to exclude it from discovery. The question of whether the disclosing party’s use would constitute hearsay is an objection to be made at trial, not a reason to exclude material from discovery. J0802A Additional Learning

Question 10

Absent a showing of substantial need and undue hardship, the “work product” (a document or tangible thing) made by a party or representative of a party (such as the party’s attorney) is not discoverable:

A Under any circumstances

B If made in anticipation of litigation

C If relevant to the litigation

Answer 10

B

Generally, the work product—a document or tangible thing—made by a party or representative of a party (such as the party’s attorney) is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered. It is not the case that work product is not discoverable under any circumstances. Work product that was not made in anticipation of the litigation is obtainable. Also, work product that is relevant to the litigation may be discoverable if the work product was not made in anticipation of the litigation (or if it is not a document or tangible thing). J0807 Additional Learning

Question 11

Without a court order or stipulation, a party may serve a maximum of ____ interrogatories (including all subparts).

A 10

B 25

C 15

Answer 11

B

Without a court order or stipulation, a party may serve a maximum of 25 interrogatories (including all subparts). Therefore, 15 and 10 are incorrect. Note that 10 may sound familiar because a party may not take more than 10 depositions without leave of court or stipulation. J0813A Additional Learning

Question 12

During discovery, Party A advised Party B that certain electronically stored information could not be produced because the information is too costly to access. Party B moves to compel the disclosure of the information, and the court agrees with Party A that the information was not reasonably accessible.
Can the court still order Party A to produce the information?

A No. Once it is determined that the information is too costly to produce, the information will not be available as evidence

B Yes. For good cause, the court can order that the information be produced, and the court may impose cost shifting or sharing

C Yes. For good cause, the court can order that the information be produced, but only if Party B is willing to pay the entire cost of accessing the information

Answer 12

B

In this scenario, for good cause, the court can order that the information be produced, and the court may impose cost-shifting or cost sharing. There is no requirement that the party requesting the information (in this case Party B) be willing to pay the entire cost of accessing the information unless ordered by the court. The answer, “once it is determined that the information is too costly to produce, the information will not be available as evidence” is incorrect because the court may still order its production. J0805A Additional Learning

Question 13

Subject to the rules of evidence, if the court finds that a deposed person is at a distance greater than _____ miles away from the location of the trial (and the absence from trial was not caused by the party offering the deposition), his deposition may be used for any purpose against any party who was present at the deposition or had notice of it.

A 90

B 75

C 120

D 100

Answer 13

D

Subject to the rules of evidence, if the court finds that a deposed person is at a distance greater than 100 miles away from the location of the trial (and the absence from trial was not caused by the party offering the deposition), his deposition may be used for any purpose against any party who was present at the deposition or had notice of it. This is also true where the deponent is dead or unable to testify due to illness or age. Therefore, 75, 90, and 120 are incorrect. J0816B Additional Learning

Question 14

Unless a seasonable objection is made at the time of the taking of the deposition, an error as to _______ is deemed waived.

A The certification of the deposition

B The notice of the deposition

C The form of a question during the deposition

D The transmittal of the deposition

Answer 14

C

Unless a seasonable objection is made at the time of the taking of the deposition, an error as to the form of a question during the deposition is deemed waived. This is true of errors or irregularities with respect to the manner of taking of the deposition (e.g., issues with the form of a question, oath, conduct of the parties, etc.). An error with respect to certification of the deposition or the transmittal of the deposition would be deemed waived unless a motion to suppress is made with reasonable promptness after the error was or should have been discovered. This is the proper process whenever there is an error or irregularity with respect to the completion and return of a deposition (i.e., problems with the signing, sealing, certification or transmittal of a deposition). Where there is an issue with the notice of the deposition, prompt written notice of the objection should be given. J0817A Additional Learning

Question 15

At least 30 days before trial, a party must make disclosures generally relating to:

A Expected witnesses only

B Exhibits expected to be used at trial only

C Expected witnesses and the exhibits expected to be used at trial

D Neither expected witnesses nor the exhibits expected to be used at trial

Answer 15

C

At least 30 days before trial, a party must disclose to the other parties and file with the court a list of the witnesses she expects to call at trial, the witnesses she will call if the need arises, the witnesses whose testimony will be presented by means of a deposition and a transcript of pertinent portions of the deposition, and a list of documents or exhibits she expects to offer or might offer if needed. J0804A Additional Learning

Question 16

Generally, a deposition:

A May be recorded by stenographic means only

B May be recorded by sound, sound and visual, or stenographic means

C May not be taken by telephone

D May not be taken through remote electronic devices

Answer 16

B

Generally, a deposition may be recorded by sound, sound and visual combined, or stenographic means only. Thus, the choice limiting the recordation to stenographic means is incorrect. Depositions may be taken by telephone or through remote electronic devices. It should be noted that, under Federal Rule 31, depositions also may be made via written questions, when the witness lives a great distance from the parties. J0812C Additional Learning

Question 17

Select the option that best completes the sentence describing the scope of discovery under the Federal Rules.
Parties may obtain discovery of any _______ matter that is relevant to any party’s claim or defense and proportional to the needs of the case.

A Documentary

B Nonprivileged

C Admissible

Answer 17

B

Parties may obtain discovery of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. “Any matter” includes both documentary evidence and individuals with knowledge; thus “documentary” is not the best choice to describe the scope of discovery under the Federal Rules. As long as the information sought is reasonably calculated to lead to admissible evidence, it is not required that the information itself be admissible at trial. Therefore, “admissible” is too limiting to describe the scope of discovery under the Federal Rules. J0806 Additional Learning

Question 18

During discovery, electronically stored information need not be produced if the responding party identifies it as:

A Not easily accessible

B Not stored in the form requested

C Not accessible without incurring additional cost

D Not reasonably accessible because of undue burden or cost

Answer 18

D

During discovery, electronically stored information need not be produced if the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost. “Not easily accessible” is the incorrect standard, as is not accessible without incurring additional cost. The additional cost must be undue. The fact that the information is not stored in the form requested is not a valid excuse for failure to produce electronic data. A responding party must use the form requested by the requesting party unless the responding party makes an objection that is determined to be valid by the court. Even if the objection is valid, it merely affects the form in which the information is to be produced, not the production itself. J0805 Additional Learning

Question 19

A _______ expert may be deposed, whereas a _______ expert generally may not be deposed.

A Consulting; testifying

B Nontestifying; testifying

C Testifying; consulting

Answer 19

C

Generally, as part of the discovery process, a party may depose a testifying expert, but a consulting expert (i.e., one who is not expected to testify at trial and is thus a nontestifying expert) generally may not be deposed. The opinions and facts known by experts who consult with a party (but who are not expected to testify) may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts by other means. J0809A Additional Learning

Question 20

Under Federal Rule 35, an independent mental or physical examination of a party is available:

A When the party’s physical or mental state is in question and the court orders an exam on a showing of good cause

B Never—an involuntary mental or physical exam is never allowed

C Whenever the party’s physical or mental state is in question, but a court order is not necessary

Answer 20

A

Under Federal Rule 35, an independent mental or physical examination of a party is available when the party’s physical or mental state is in question and the court so orders an exam on a showing of good cause. Thus, the statement that an involuntary mental or physical exam is never allowed is incorrect. It is incorrect to state that a mental or physical exam of a party is available whenever the party’s physical or mental state is in question. A court order is generally required. J0814 Additional Learning

Question 21

Defendant believes that his e-mails are privileged and does not want to disclose them to Plaintiff during discovery.
What, if anything, must Defendant disclose about these e-mails?

A The content of the e-mails must be disclosed until the issue of privilege is decided

B The existence of the e-mails with enough detail to assess the validity of the claim of privilege

C Neither the existence of nor the content of the e-mails must be disclosed

Answer 21

B

When a party claims that certain discoverable information is privileged trial preparation material, the party claiming privilege must disclose the existence of the e-mails (but not the content) with enough detail to assess the validity of the claim of privilege. It is therefore incorrect to say that the content of the e-mails must be disclosed until the issue of privilege is decided or that neither the existence of nor the content of the e-mails must be disclosed. J0808A Additional Learning

Question 22

If a party has provided incomplete discovery, the other party may:

A Refuse to provide discovery

B Hold the party in contempt

C Move to compel discovery

D Consider the matters admitted

Answer 22

C

If a party has provided incomplete discovery, the other party may move to compel discovery. The moving party must certify in her motion that she made a good faith attempt to confer with her opponent to obtain the discovery without court intervention. A party may not refuse to provide discovery in response to another party’s failure to provide discovery. Holding a party in contempt and ordering that matters be treated as admitted are sanctions a court may impose in response to a party’s failure to comply with a court order to provide discovery. These are not actions that may be taken by a party. J0815 Additional Learning

Question 23

As “initial disclosures” under the federal discovery rules, parties must disclose all information that is “then reasonably available” unless:

A The opposing party has also failed to comply with discovery
Incorrect

B The attorney has failed to complete her investigation

C The material is privileged or protected as work product

Answer 23

C

Federal Rule 26(a) governs discovery. Under this rule, parties must disclose all information that is “then reasonably available” unless the material is privileged or protected as work product. A party is not relieved from the disclosure requirements merely because the attorney has failed to complete her investigation or the opposing party has also failed to comply with discovery. J0801 Additional Learning

Question 24

Subject to the rules of evidence, a deposition may be used at trial or in a hearing only against:

A A party who was present at the deposition

B The party deposed

C A party who was present at the deposition or had notice of it

Answer 24

C

Subject to the rules of evidence, a deposition may be used at trial or in a hearing only against a party who was present at the deposition or had notice of it. The person a deposition may be used against need not be the party deposed. Although a deposition may be used against a party who was present at the deposition, the use is not limited to such a party. A party who was not present but had notice of the deposition is also subject to the use of the deposition. J0816 Additional Learning

Question 25

Absent a court order or stipulation to the contrary, what is the maximum amount of time that one deposition may take?

A One eight-hour day

B Two days of eight hours each

C One seven-hour day

D Two days of seven hours each

Answer 25

C

Absent a court order or stipulation to the contrary, a deposition may not exceed one seven-hour day. Therefore, one eight-hour day, two days of seven hours each, and two days of eight hours each are incorrect. J0812B Additional Learning

Question 26

A matter that is nonprivileged and _________ may be discovered.

A Relevant to any party’s claim or defense only

B Relevant to any party’s claim or defense, proporational to the needs of the case, and admissible at trial

C Proporational to the needs of the case only

D Relevant to any party’s claim or defense and proportional to the needs of the case only

Answer 26

D

For a party to obtain discovery of a nonprivileged matter, including electronically stored information, the matter must be relevant to any party’s claim or defense. The discovery of the matter also must be proportional to the needs of the case; the court will essentially conduct a cost-benefit analysis to determine whether to order discovery of the matter. The matter need not be admissible to be discoverable. J0806B Additional Learning

Question 27

When a party claims that certain discoverable information is privileged or is trial preparation material, the party so claiming must disclose _______, so that the opposing party can assess the privilege claim.

A The existence of the material in sufficient detail to the opposing party

B The existence of the material and its contents

C The existence and source of the material

Answer 27

A

When a party claims that certain discoverable information is privileged or is trial preparation material, the party so claiming must disclose the existence of the material in sufficient detail to the opposing party, so that the opposing party can assess the privilege claim. The existence of the material and its contents is incorrect, because it requires the party claiming privilege or trial preparation material to provide access to the protected information. There is no requirement to disclose the source of the protected material. J0808 Additional Learning

Question 28

Rule 26 requires that during discovery certain disclosures be made concerning expert witnesses.
Which of the following is a true statement concerning expert witness disclosures?

A An expert witness must prepare and sign a report containing his opinions to be expressed and the basis for them
Incorrect

B The basis for an expert’s opinion need not be disclosed prior to trial

C A party must prepare and sign a report containing the opinions to be expressed by an expert witness and the basis for those opinions

D A party must prepare and sign a report stating the qualifications of an expert witness

Answer 28

A

An expert witness, not a party, must prepare and sign a report stating the expert’s qualifications, the opinions to be expressed, and the basis for those opinions. The choices stating that a party must prepare and sign a report are therefore incorrect, as is the choice that states that the basis for an expert’s opinion need not be disclosed prior to trial. J0803A Additional Learning

Question 29

Under the federal discovery rules, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan.
Unless a different time is set by court order or stipulation, within how many days after this meeting must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses?

A Within 10 days after the meeting

B Within 28 days after the meeting

C Within 14 days after the meeting

Answer 29

C

Unless a different time is set by court order or stipulation, within 14 days after the meeting the parties must provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless needed solely for impeachment). Other disclosures that must be made at this time include: (1) copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment, (2) computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and (3) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. Within 28 days after the meeting and within 10 days after the meeting are both incorrect. J0802 Additional Learning

Question 30

When a person has received a physical or mental exam under Federal Rule 35, she may request a copy of the examiner’s report and/or depose the examiner.
When she does this, she _______ with respect to other examinations for the same condition.

A Waives the medical privilege

B May, in the discretion of the court, be deemed to have waived the medical privilege

C Retains the medical privilege

Answer 30

A

When a person has received a physical or mental exam under Federal Rule 35, she may request a copy of the examiner’s report and/or depose the examiner. By doing so, she waives the medical privilege with respect to other examinations for the same condition. In fact, upon demand, she must produce copies of her own doctor’s reports of other examinations for the same condition. Retains and deemed to have waived in the discretion of the court are both incorrect. The waiver of medical privilege is not within the court’s discretion. J0814B Additional Learning

Question 31

If a party notices that the deposition of one of her experts contains information that is materially incomplete, is she required to supplement the deposition?

A Yes, she has a duty to supplement it so that the information is complete

B No, she is not required to supplement the deposition of an expert

C No, only materially incorrect information must be supplemented

Answer 31

A

If a party notices that the deposition of one of her experts contains information that is materially incomplete, she has a duty to supplement it so that the information is complete. A party must supplement (1) disclosures, (2) prior responses to interrogatories, requests for production and requests for admissions, (3) expert’s reports and (4) depositions of experts when the party learns that the information disclosed was materially incomplete or incorrect and the new information has not been made known to the other party in discovery or in writing. The statement that only materially incorrect information must be supplemented is incorrect because both materially incorrect and materially incomplete information must be supplemented. The statement that the party is not required to supplement the deposition of an expert is incorrect because expert depositions are a type of disclosure that must be supplemented in these circumstances. J0810B Additional Learning