Discovery

Question 1

What rule sets the basic rules of discovery?

Answer 1

26

Question 2

Scope of Discovery

Answer 2

26(b): Parties may discover anything relevant to a claim or defense that is not privelage and is proportional to needs of the case

Question 3

What discovery tools are available for no parties?

Answer 3

Depositions, Doc production and physical and mental exams where custody or control

Question 4

Discovery method in which numbered, written questions are asked

Answer 4

Interrogatories

Question 5

How many interrogatories are generally allowed?

Answer 5

25

Question 6

How many depositions are allowed and how long are they

Answer 6

10 and 7 hours

Question 7

5 factors for determining when discovery is proportional to the needs of the case

Answer 7

1) amount in controversy
2) importance of issue
3) party’s resources
4) importance of discovery in resolving the issue
5) burden/expense as compared to benefit

Question 8

Motion to compel

Answer 8

Requires a non-cooperative party to submit to discovery

Question 9

Parties must — and — before asking for intervention of the court

Answer 9

Meet and confer

Question 10

A — — is made on the part of the responding party to prevent or limit discovery

Answer 10

Protective order

Question 11

Reasons a protective order may be granted

Answer 11

Annoyance, embarrassment, oppression, undue burden, expense

Question 12

A party may limit discovery of ESI that is

Answer 12

Not reasonably accessible
Note: ct may still allow discovery upon showing of good cause

Question 13

7 factors of cost shifting

Answer 13

1)extent to which request is specifically tailored to discover relevant info; 2) the availability of such info from other sources; 3) total cost of production compared to amount in controversy; 4) cost of production compared to resources available to parties; 5) relative ability of each party to control costs and its incentive to do so; 6) importance of the issues at stake in litigation; 7) relative benefits to the parties of obtaining info

Question 14

In order to obtain a [] under Rule 35, must show [] because it is so invasive.

Answer 14

Physical or mental exam
Good cause

Question 15

What mechanisms of discovery cannot be served on Non-parties?

Answer 15

Initial disclosures, interrogatories, requests for production, physical or mental exam, requests for admissions

Question 16

When can you obtain a physical or mental exam on a non-party?

Answer 16

When the party is in the party’s legal custody or control

Question 17

Depositions are the most through discovery mechanism, but may be disfavored because

Answer 17

They are limited in number (10), time (7 hours), and they are costly

Question 18

What discovery mechanism allows you to collect discovery from non-parties?

Answer 18

Subpoena under Rule 45

Question 19

A subpoena must be served from within

Answer 19

100 miles of the issuing court

Question 20

True or False: discovery must be turned over in the manner requested by the discovering party

Answer 20

False. It need only be reasonably accessible, but does not have to comport with a party’s request

Question 21

True or False: Metadata is discoverable

Answer 21

True

Question 22

Attorney Client privilege exists where

Answer 22

1) advice is sought 2) from a licensed attorney acting in their capacity as an advisor; 3) communication is related to purpose; 4) made in confidence 5) by client, and is 6) protected at client’s insistence 7) form disclosure; 8) unless waived

Question 23

Privilege, such as doctor pt, belongs to the [] and may . . .

Answer 23

Client
Disclosed at their discretion. A doctor cannot claim privilege if their patient brings suit.

Question 24

Work Product:

Answer 24

Documents prepared in anticipation of litigation cannot be disclosed unless it is otherwise discoverable and party shows great need. Even then, mental impressions and opinions have an absolute privilege against disclosure.

An example would be if a party collects a deposition from a witness who then dies. As the info is no longer available, a party would likely be able to discover even if it is work product.

Question 25

True or False: Misconduct during discovery is punishable by sanctions under Rule 11

Answer 25

False. Discovery sanctions can be found in Rule 26(g) for evidence spoiliation or Rule 37 for failing to comply with court ordered discovery.

Question 26

If a party knows litigation is imminent and allows otherwise discoverable info to spoil, [] may be imposed, even as extreme as []

Answer 26

Sanctions
Striking the pleadings

Question 27

Extreme sanctions for spoiliation will be awarded where

Answer 27

1) obligation to preserve; 2) culpable state of mind; 3) evidence relevant to claim or defense

Relevance and prejudice seek to ask if the evidence would support a sought inference