Civil Procedure Learning Questions - Set 3 Flashcards
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 relevant to the litigation
C
If made in anticipation of litigation
C
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).
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
Admissible
C
Nonprivileged
C
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.
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 28 days after the meeting
B
Within 14 days after the meeting
C
Within 10 days after the meeting
B
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.
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
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.
A patient sued a surgeon for medical malpractice, alleging that the surgeon used an improper procedure during cardiac surgery, thereby permanently injuring the patient. The surgeon then wrote to a colleague, who was a renowned cardiologist, asking whether in her opinion the procedure was proper. In response, the colleague stated that the procedure was likely improper, but that she was unsure whether the patient’s injuries resulted from it. After receiving the colleague’s letter, the surgeon did not have any further communication with her about the matter.
Is the letter discoverable?
A No, because the colleague did not have first-hand knowledge regarding the surgery that she was evaluating.
B No, because the colleague will not testify at trial on behalf of the doctor.
C Yes, because the colleague was not retained or specially employed by the doctor.
D Yes, because the colleague is not an expert.
B
The letter is not discoverable because the colleague is a nontestifying expert. An expert is a person with knowledge, skill, experience, training, or education in a particular field. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed. Thus, the doctor need not produce the letter from his colleague, an expert in cardiology, because the doctor does not expect to call her as a trial witness. (A) is incorrect because an expert need not have first-hand knowledge of facts to give an opinion based on those facts. In any event, although a fact witness’s lack of knowledge may in some circumstances provide a reason for excluding testimony at trial, it is not a valid ground for resisting discovery of relevant information. (C) is incorrect because the opinion of a nontestifying expert is nondiscoverable regardless of whether she is formally retained or not. (D) is incorrect because the cardiologist is an expert. The question states that she is a renowned cardiologist and that the doctor is consulting her about a cardiac surgery.QUESTION ID: MJ213
A customer choked on a bone in her fish fillet while eating at a restaurant. The restaurant’s manager, who was not in the restaurant when the incident occurred, met with the customer and the restaurant employees who witnessed the incident. As required by state law, the manager prepared a report regarding the incident and filed it with the state board of health. The manager then accepted a job in another country and moved there.
The customer subsequently commenced a civil action against the restaurant in a federal court, alleging negligence and a breach of the warranty of merchantability. The customer’s attorney served a request for all documents and reports prepared by the restaurant relating to the incident.
Must the restaurant produce the manager’s report?
A Yes, because the manager prepared the report to comply with state law rather than to prepare for trial.
B Yes, because the customer can establish that she has a substantial need for the report to prepare her case.
C No, because the manager’s report is hearsay and therefore not discoverable.
D No, because the report constitutes work product and is therefore not discoverable.
A
The restaurant must produce the report because it is relevant, proportional to the needs of the case, and it was not prepared in anticipation of litigation. Generally, a party may obtain discovery regarding any matter that is proportional to the needs of the case and that is relevant to any party’s claim or defense, provided the matter is not subject to a privilege or to the exception for trial preparation materials, also called work product. Trial preparation materials are documents or other tangible things prepared in anticipation of litigation or for trial. Here, the manager’s report is relevant because it contains facts relating to the incident that is the basis of plaintiff’s claim. Moreover, it is not subject to the exception for trial preparation materials because it was prepared in the ordinary course of business to comply with state law, not in anticipation for litigation. Finally, the costs of producing the report likely would not be prohibitive. (B) is incorrect because it invokes the exception to the rule against discovery of work product, namely that work product is discoverable if the party seeking it “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” This exception is not pertinent because the manager’s report is not work product. (C) is incorrect because material need not be admissible as evidence to be discoverable. The standard is relevancy, not admissibility. (D) is incorrect because, as discussed above, the report is not work product.QUESTION ID: MJ153
A car collector bought a car with gold leaf paint from a manufacturer. During the first month, all the gold leaf paint peeled off. The collector sued the manufacturer, and during discovery served an interrogatory asking the manufacturer to identify all other purchasers of the gold leaf paint over the previous 10 years. The manufacturer was aware that only about 25 of the 2 million buyers of its cars have ordered the gold leaf option. The manufacturer has retained copies of all sales forms, but has not maintained separate files of the buyers of each particular option.
In a court using the federal rules, what are the manufacturer’s obligations with respect to the collector’s interrogatory?
A It must search its files and then disclose the information.
B It may allow the collector to search the records himself.
C It may respond by stating that only about 25 of the 2 million buyers ordered the option.
D It may state that searching the records is too great a burden and so it is excused from answering the interrogatory.
B
Assuming the interrogatory is otherwise proper, the manufacturer may search the 2 million order forms itself or it may allow the collector access to the files. In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records. [Fed. R. Civ. P. 33] (A) is incorrect because instead of searching the files itself, the manufacturer can allow the collector access to do it. (C) is incorrect because it is not responsive to the interrogatory. (D) is incorrect because a party is not relieved of its duty to answer just because the search is burdensome.
A shopper sued a grocery store in federal court for a back injury after a fall in the store. The shopper provided the store with a medical report from his own doctor. However, the store located a physician specializing in back injuries who agreed to examine the shopper independently. The store sent a discovery notice to the shopper instructing him to call the physician to set up an appointment. The shopper declined, asserting that he would not do so without a court order. The store responded that if the shopper insisted on a court order, it will also ask the court to impose sanctions on the shopper for failing to cooperate in discovery.
Is the store’s position as to sanctions justifiable?
A Yes, because the shopper must cooperate with the store during the discovery period.
B Yes, if the physician is deemed to be a neutral physician.
C No, if the shopper’s original doctor was also a back specialist.
D No, because the shopper need not submit to an examination by a physician without a court order.
D
The store’s position as to sanctions is not justifiable. Although the shopper’s physical condition is in issue, he need not submit to an exam by another physician without a court order obtained on a showing of good cause. The shopper’s insistence on a court order thus does not constitute a failure to cooperate in discovery. [Fed. R. Civ. P. 35] For this reason, (A) is incorrect. (B) is incorrect because a court order is still required. Furthermore, there is no prohibition against the physician being employed by the requesting party. (C) is incorrect because a party may not avoid the examination by claiming that his prior examination was sufficient.
