Discovery

Question 1

Rule 26(b)(1): Scope of Discovery

Answer 1

Unless limited by court order, discoverable information is limited to information which is non-privileged, relevant and proportional to the needs of the case. The information does not need to be admissible.

Question 2

Discoverable information must be:

Answer 2

• Non-privileged
• Relevant
• Proportional to the needs of the case

Question 3

Rule 26(b)(2)(C): Court Limits on Discovery

Answer 3

A court may limit discovery if the information is
(i) unreasonably cumulative or duplicative or can be obtained more conveniently and less costly OR
(ii) the moving party has had ample opportunity to do the discovery themselves OR
(iii) the request does not comply with Rule 26(b)(1)

Question 4

Rule 26(b)(3): Attorney Work Product

Answer 4

Attorney work product is not discoverable unless the moving party shows that it has a substantial need for the materials and it cannot obtain the materials by other means.

Question 5

Relevance

Answer 5

• Logical connection to the case
• Relevant to a party’s claim or defense or the subject matter of the action
• Allows a party to prove or disprove an issue

Question 6

Favale v. Roman Catholic Diocese

Answer 6

A party seeking to compel discovery must establish that the information is relevant to a claim or defense.

Question 7

Attorney-Client Privilege: Elements

Answer 7

Communication between an attorney and their client in confidence for the purpose of obtaining or providing legal assistance for the client.

Question 8

Limits on Attorney-Client Privilege

Answer 8

• Does not extend to underlying facts
• Does not extend to all discussions with attorney, only those about legal strategy

Question 9

Hickman v. Taylor

Answer 9

Attorney work product is not discoverable unless the opposing party can show that there is a “substantial need” and the party cannot prepare its case or gain access to the information without “undue hardship”.

Question 10

Duty to Preserve Evidence

Answer 10

Once a party should reasonably anticipate litigation, they have a duty to preserve any potentially relevant material.

Question 11

Litigation Hold

Answer 11

Key players told to preserve any relevant information. Automatic deleting systems should be stopped and any relevant hard copies put into electronic form.

Question 12

Zubulake v. UBS Warburg

Answer 12

During litigation, counsel must:
1. Institute a litigation hold and give reminders
2. Communicate directly with key players and stress the importance of the evidence
3. Instruct all employees to produce copies of relevant files and ensure there is a back up

Question 13

Proportional to the Needs of the Case Factors

Answer 13

• Importance of the issues
• Amount in controversy
• Parties’ resources
• Parties’ relative access to information
• Importance of discovery in resolving the dispute
• Whether the benefit of discovery outweighs its expense/burden

Question 14

Cerrato v. Nutribullet

Answer 14

A court may grant a motion to compel discovery but narrow its scope in terms of time, type of information, etc.

Question 15

Wagoner v. Lewis Gale

Answer 15

• When deciding whether to compel discovery of electronically stored information (ESI), the court considers whether the data are in “accessible or inaccessible format”. ESI is inaccessible if it has to be “restored, de-fragmented or reconstructed.
• Keeping an inconvenient database does not shield parties from discovery if the ESI could be easily gathered by using different software.

Question 16

Protective Order

Answer 16

A court may issue a protective order to bar discovery of certain information to protect parties from annoyance, embarrassment, oppression or undue burden or expense.

Question 17

Rengifo v. Erevos

Answer 17

Court may grant a protective order for immigration status in order to prevent the other party from intimidating or frightening the immigrant party.

Question 18

Rule 37: Discovery Sanctions

Answer 18

Sanctions may be imposed if a party fails to comply with a court order to compel discovery.

Question 19

Rule 37(e): Failure to Preserve ESI

Answer 19

Sanctions may be imposed if a party had a duty to preserve ESI but failed to take reasonable steps to preserve it, and it cannot be restored.

Question 20

Rule 37(e)(1): Discovery Sanctions

Answer 20

The court may only order measures “no greater than necessary to cure the prejudice”

Question 21

Rule 37(e)(2): Discovery Sanction Options

Answer 21

If the party acted with intent the court may (A) grant adverse inference, (B) instruct the jury that they may or must assume the lost evidence was unfavorable to the party or (C) dismiss the action to enter a default judgment.

Question 22

Spoliation

Answer 22

Failing to fulfill duty to preserve evidence, or the destruction or alteration of evidence
Elements:
1. Controlling party had a duty to preserve the evidence
2. The evidence was destroyed in a culpable mental state
3. Evidence that was destroyed was relevant

Question 23

Adverse Inference

Answer 23

The court instructs the jury that the missing evidence was in the other party’s favor.

Question 24

Mueller v. Swift

Answer 24

Adverse inference is only handed down when the court finds that the party which lost or destroyed evidence did so in bad faith.