Discovery

Question 1

Policy Question: Why is discovery broad?

Answer 1

Discovery is broad to promote fairness by:
1. Reducing surprise in litigation
2. Narrowing the dispute by revealing matters not in controversy
3. Encouraging early resolution through motions (like summary judgment) or settlement

Question 2

What does Rule 26(a)(1) require in terms of initial disclosure?

Answer 2

Rule 26(a)(1) requires parties to disclose certain information even if the other party doesn’t request it, including documents, witnesses, and relevant facts.

Question 3

What is a deposition?

Answer 3

An oral examination of a witness under oath

Question 4

Who can be deposed?

Answer 4

1. Parties
2. Non parties through a subpoena

Question 5

What are interrogatories under Rule 33?

Answer 5

Written questions

Question 6

How many questions are allowed in interrogatories?

Answer 6

25

Question 7

Who can take part in interrogatories?

Answer 7

Parties only

Question 8

What does Rule 34 allow in terms of document requests?

Answer 8

Rule 34 allows parties to serve unlimited document requests on parties and non-parties (via subpoena)

Question 9

What are the rules around physical and mental examinations under Rule 35?

Answer 9

1. Can only demand an examination of parties only
2. A court order is required
3. Relevance alone is not enough, it must be more than just a potential discovery

Question 10

Who is allowed to demand physical or mental examinations?

Answer 10

Parties only

Question 11

What must be shown in order to be granted a court order for physical and mental examinations?

Answer 11

1. The physical or mental condition is in controversy 2. There is good cause

Question 12

What is the purpose of requests for admission under Rule 36?

Answer 12

Requests for admission allow a party to admit or deny statements with explanations.

Question 13

What happens if there is no response in requests for admission?

Answer 13

If there is no response, the request is considered admitted.

Question 14

What are the rules regarding experts? (testifying and consulting)

Answer 14

Testifying Expert: can be deposed

Consulting Expert: not expected to testify and discovery is exceptionally limited, only allowed in rare cases (ex. the test cannot be replicated)

Question 15

What are some general limitations to discovery?

Answer 15

General idea is the discovery cannot be sought when its annoying, expensive (etc. things that are common sense)

Question 16

What does attorney-client privilege protect in discovery?

Answer 16

Attorney-client privilege provides absolute protection for confidential communications between a client and their attorney made for the purpose of seeking or providing legal advice.

Question 17

What is the work product doctrine in discovery?

Answer 17

The work product doctrine protects documents and materials prepared in anticipation of litigation from being disclosed in discovery.

Question 18

What are the two types of work product?

Answer 18

Fact work product and opinion work product

Question 19

What is fact work product?

Answer 19

Fact work product refers to materials prepared by or for a party in anticipation of litigation (e.g., documents, witness statements).

Question 20

What is opinion work product?

Answer 20

Opinion work product refers to the mental impressions, conclusions, or opinions of an attorney or party’s representative regarding the litigation.

Question 21

How can fact work product be overcome?

Answer 21

Can be overcome if the requesting party shows a substantial need and that not disclosing the materials would cause undue hardship or unfairness.

Question 22

How is opinion work product treated in discovery?

Answer 22

Absolutely protected from discovery, regardless of need or hardship.

Question 23

Are underlying facts protected by the work product doctrine?

Answer 23

No

Question 24

How do the work product doctrine protections affect discovery requests?

Answer 24

Fact work product can be requested if the requesting party can demonstrate substantial need and undue hardship to obtain the materials.

Opinion work product is never discoverable, as it is given absolute protection.