M8: Discovery

Question 1

How broad is the scope of discovery under Rule 26(b)(1)?

Answer 1

“sweeping” - party can use Rule 26(b) to obtain documents, access to property, pictures, audio tapes, medical records, inspections, testimony of parties and non-party witnesses, whether or not the information would be admissible at trial.

Question 2

What is the one exception to Rule 26(b) in discoverability? Why?

Answer 2

Evidentiary privileged information: communication in confidence during the course and in furtherance of a relationship (lawyer-client, doctor-patient, priest-penitent) that society chooses to promote and protect.

This is protected against discrimination at trial and discovery.

Fifth Amendment principle: No person shall be compelled in any criminal case to be a witness against himself.

Question 3

Is privileged information self-executing?

Answer 3

No. If a party wishes to resist discovery by invoking a privilege, Rule 26(b)(5) requires that it make the claim expressly and “describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Question 4

Can a court limit discovery when the cost or burden of the proposed discovery outweighs its likely benefit?

Answer 4

Yes, this was rule established in Tucker (2012).

+ Rule 26(b)(1) broadly permits discovery of non privileged materials relevant to the claim

+ Rule 45 permits a party to obtain discovery through a subpoena

+ Rule 26(b)(2)(B) Requires a party to allow discovery of electronic records UNLESS that party can show that these records aren’t reasonably accessible, due to undue burden or cost –> broad discretion of the court to determine what’s unduly burdensome

Question 5

What are some various tests that courts may use to determine whether or not discovery is an undue burden under Rule 26(b)(2)(B)

Answer 5

1. Unreasonably cumulative or duplicated
2. Can be obtained from a more convenient source, less expensive manner
3. Burden or expense outweighs its likely benefits

Question 6

True or false: Relevancy is both a necessary and sufficient condition for discovery

Answer 6

False. Relevancy is necessary but not sufficient. The proportionality condition from Tucker places even relevant evidence out of bounds for practical reasons. In other words, it may be proper to tell a party seeking additional documents in discover, “You already have enough.”

Question 7

What are the elements necessary to invoke attorney-client privilege?

Answer 7

1) A communication
2) made between privileged persons
3) In confidence
4) For the purpose of obtaining or providing legal assistance for the client…

Question 8

True or false: Attorney-client privilege applies to communications and facts that are communicated

Answer 8

False: applies only to communication, not to the facts that are communicated

A client cannot protect facts from discovery just by telling them to his lawyer, even when he tells his lawyer for the bona fide purpose of obtaining legal advice.

Question 9

If attorney-client privilege is invoked, who has the burden a foundation for it?

Answer 9

It rests with the party invoking the privilege

Question 10

Lawyer Dickens is a business partner Harris in a hedge fund called Leverage Plus. After the fund loses a lot of money, a disappointed investor sues the fund for mismanagement and seeks discovery of emails between Dickens and Harris discussing the fund’s declining financial prospects and Dickens’s ideas about better investments. The emails are marked “privileged and confidential”

Leverage objects to this discovery, invoking lawyer-client privilege. Assuming Leverage has the burden of establishing privilege, are these emails privileged and protected from discovery?

Answer 10

1) Is Dickens acting on behalf of Leverage’s business or is he merely a business partner? Is he a privileged person within the organization? Here, it’s not completely clear. If he was the acting attorney for Leverage, he is a privileged person. If he was merely a business partner (that just so happened to be a lawyer in his other work), probably not.
2) Does the term “privileged and confidential” hold any weight here? It doesn’t always matter. Calling it so doesn’t make it so. It’s up to Leverage to show that there’s a foundation for the “privileged and confidential” nature of the emails.
3) What is the purpose of the emails? If it’s to discuss legal issues, they it is communication that is privileged and confidential. But given the facts, it was an email about investments and funding and not legal advice.

Question 11

Can a party to a lawsuit be required to produce written material that was prepared in expectation of litigation?

Answer 11

No. Attorney work product is not discoverable without a showing of necessity, prejudice, or undue burden. (Hickman v. Taylor)

Sharing facts during discovery under Rule 26 is fair game. But there are limitations to Rule 26, including privileged information. Legal strategies and attorney mental impressions are not fair game.

Question 12

If, per his lawyer’s request, a plaintiff prepares a chronology of events leading up to an accident and labels it “work product = not for disclosure” would this be considered work product that’s protected?

Answer 12

Yes, because it’s unlikely that the plaintiff would have put together this chronology of events other than to prepare for a lawsuit.

Question 13

An automobile company routinely prepares statistical summaries of dealer repair invoices to identify defects for the purpose of correcting such defects in future models. Would this be protected work product that a party suing the auto company could not obtain in discovery?

Answer 13

Even though this might help in preparing for litigation, even after the suit has commenced, is not enough to qualify it for work product protection. By definition, anything that might qualify as evidence would also be helpful in preparing for litigation.

Why was the document prepared? This was a business purpose for repairing defects, not something to prepare in advance of a potential lawsuit.

Question 14

An insurance claims adjuster prepares a report deciding whether to pay out on a claim. Is this protected work product?

Would it make a difference if the preparation of the report took place after the insurer had denied coverage on a claim?

Answer 14

Because it is the business of insurance companies to adjust claims made under their policies, this would likely not be protected work product by itself.

But if the report had been produced after a claim was denied, litigation is more likely imminent because the disappointed claimant had no other recourse against the insurer. This report was probably prepared in preparation of a lawsuit and thus is protected.

Question 15

Why are plaintiffs not granted access to non-testifying expert info during discovery?

Answer 15

If there were experts with comparable expertise, plaintiff wouldn’t need the defendant’s non-testifying expert. Plaintiff could just hire his own similar expert at his own expense. Getting discovery from defendant’s expert would be giving the plaintiff a free ride at the defendant’s expense, especially if plaintiff didn’t have to pay that expert a fee (which defendant likely did).

Question 16

True or false: Rule 26 requires parties to disclose the identity of each testifying expert and to provide a written report of their opinions and their basis, qualifications, and listing of their cases in which she has testified during the preceding four years, without need for opposing parties to request the report.

Answer 16

True.

Question 17

True or false: Rule 26 “ordinarily” prohibits discovery of non-testifying experts on the assumption that a party can find facts or opinions on the subject “by other means” (aka, hire your own expert)

Answer 17

True

Question 18

Are there exceptions to Rule 26’s “by any other means” provision with regards to non-testifying experts?

Answer 18

Yes. If there are no other experts of the same kind and your opponent hired/retained the only one in the world, the experts uniqueness is surely an exceptional circumstance to Rule 26.

Question 19

True or false: Required initial disclosures during discovery under Rule 26(a) may be delayed by agreement of the parties or court order

Answer 19

True. Under 26(a)(1) there are four categories by which discovery is required without waiting for a request. Either parties can agree to a delay or a court can order it.

Question 20

When must initial disclosures under Rule 26 be made?

Answer 20

1) Rule 26(f): parties meet and confer to discuss a discovery plan at least 21 days before a scheduling conference is held/scheduling order is due
2) Rule 16(b): Scheduling order is due within 90 days after any defendant has been served with the complaint OR 60 days after any defendant has appeared
3) Rule 26(f): Disclosures are due within 14 days after the meet and confer UNLESS a party asserts that required initial disclosures are inappropriate in the circumstances of the case

Question 21

What are options available to parties who want to hold back from initial disclosures?

Answer 21

1) Ask the other party to stipulate the delay of the required disclosure
2) Object to the disclosure during discovery conference with other party and state that the objecting in the resulted proposed discovery plan
3) Move for a court order

Question 22

What sort of evidence is required in the initial disclosure under Rule 26?

Answer 22

Information that the disclosing party ay use to support its claims or defenses. Arm parties as early as possible with basic information they need to prepare for trial to make informed decisions about settlement.

Ex: names, addresses, telephone numbers of fact witnesses, copies or descriptions of documents, materials underlying computation of damages

Question 23

DiMento sues Bashad for injuries in a motor vehicle accident. The parties exchanged required initial disclosures under Rule 26(a)(1).

Bashad’s disclosure of witnesses does not include Patrick, who was present at the time of the accident. Patrick told Bashad’s lawyer that Bashad ran a red light before he hit DiMento.

Later DiMento’s lawyer learns from his own investigation that Patrick witnessed the accident.

What happens next?

Answer 23

After required initial disclosures, DiMento’s lawyer should serve interrogatories asking for the names of witnesses because Bashad would be required to close the names of those with information DiMento could use to support his claims.

Basad did not violate the rule, so there are no sanctions. Bashad is only required to make initial disclosures of witnesses with information that HE may use to support HIS case. Here, because Patrick saw Bashad run a red light, this would be testimony against Basad’s case and he likely wouldn’t be used to support Basahd’s case.

Question 24

True or false: Rule 26 does not require disclosure of expert witnesses and their reports before trial

Answer 24

False. Expert trial witnesses and their reports are due at least 90 days before trial. At least 30 days before trial, parties make mutual “pretrial disclosures” by exchanging lists of witnesses they expect to call and exhibits they intent to introduce at trial.

Question 25

Are there sanctions for failure to give required disclosure?

Answer 25

Yes. Rule 37(c) provides a self-executing sanction, without the need for a motion, against a party who fails to make a required disclosure without substantial justification.

The party is precluded from using the undisclosed evidence or witness. Courts may also impose additional sanctions.

Question 26

During discovery, one of the parties finds a report that is essentially a “smoking gun” for the other side. Are any of these viable options to keep the information from the other side?

A) hide the report by giving it to legal representation
B) Shred the report as long as the other party hasn’t yet asked for it
C) Place the report in a folder that contains information completely unrelated to the complaint and make those files available to the other side
D) Withhold the study and say that it “counts” as work product
E) Withhold the study and if the other side asks for it, claim that it doesn’t directly related to the issue

Answer 26

NONE OF THESE!

A) Any document held by your lawyer is within your control

B) Destroying evidence is wrong and goes against the spirit of discovery as a process. It also goes against several ethical rules that lawyers must follow. This could even be a crime, depending on the rules of evidence in the court.

C) Records are to be kept “in the usual course of business” - mixing up files and hoping no one notices is not OK

D) Is this a work product? We’d need more facts, but on face value this doesn’t seem to meet the definition of protected work. Plus, knowingly disobeying rules of discovery beyond an objection is not OK.

E) Even if one party could argue that this report didn’t quite fit the ask during discovery, if the other party somehow got its hands on the report in a different request, it would look like they were hiding something.

Question 27

What three things must a party seeking adverse-inference jury instruction based on spoilage of evidence prove?

Answer 27

1) The party with control over the evidence was obligated to preserve it at the time it was destroyed
2) Evidence destroyed was a culpable state of mind (including negligence)
3) The evidence was relevant, such that a reasonable trier of fact could find that the evidence supported the party’s claims or defenses

(Zubulake)

Question 28

What is a litigation hold?

Answer 28

Zubulake: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents.

General rule: this hold does not apply to inaccessible backup tapes (retained for disaster recover), but if backup tapes are accessible such tapes would be subject to the hold.

Question 29

True or false: E-discovery imposes a continuation of duty for lawyers and not the clients

Answer 29

False. There is a continuing duty for lawyers and their clients with e-discovery and litigation holds.

Question 30

When deposing non-parties in a case during discovery, why isn’t a simple notice of the deposition sufficient to compel a non-party to attend?

Answer 30

Non-parties are not within the personal jurisdiction of a court or subject to discovery rules unless served with process.

Rule 45 authorizes the court where the action is pending to issue a subpoena and permits nationwide service. This is good for 100 miles of where the deponent resides (or if the person is a party or the party’s officer, in the the state where)

Question 31

True or false: A judge attends depositions to make determinations on objections

Answer 31

False. Rule 30(c)
A lawyer calls (“notices”) the deposition, and the lawyers conduct the examination without judicial supervision. Objections to questions may be made by opposing counsel but the examination proceeds… If the deposition is used at trial, the judge will have to rule on all objections before the testimony is admitted.

Question 32

Can institutional parties be deposed?

Answer 32

Yes. Notice would be sent to the organization’s lawyer describing the matters on which examination is requested. The organization then designates a deponent knowledgeable about those matters to testify on its behalf. Rule 30(b)(6)

Question 33

Under Rule 32, when is a deposition admissible as evidence in trial?

Answer 33

1) When it’s used against any party who was represented at the deposition or had reasonable notice of it
2) For impeaching the deponent as a witness at trial or hearing
3) Admission by a party-deponent or the institutional party for whom the deponent was an officer/director/managing agent/designated deponent
4) When the deponent is unavailable by reason of death, illness, infirmity, or location beyond range of trial subpoena.

Question 34

true or false: Rule 35 medical examinations are available against witnesses outside the custody or control of marties.

Answer 34

False - this is not available

Question 35

What is a request for admission?

Answer 35

Rule 36: A party may request that an opposing party admit or deny the truth of statements in the request or the authenticity of documents attached to it.

Question 36

Is a request for admission more of a discovery tool or pretrial tool.

Answer 36

Pretrial tool b.c. the request for admission is usually made after other discovery that is needed to frame the statement or locate the document.

Question 37

True or false: an admission conclusively establishes matter admitted and so does other information obtained during discovery

Answer 37

False: Yes, an admission conclusively establishes matter admitted (fact-finder takes it as a given) under Rule 36(b).

However other finds during discovery are not conclusive but instead evidence on which the fact-finder can use in reaching his/her own conclusion.

Question 38

How are Rules 11 and 26 similar? How are they different?

Answer 38

Both Rules 11 and 26 are certification requirements.

Rule 11 and 26 seem alike because they certify that the papers are warranted by law and have a proper purpose.

Rule 26 goes on to warrant that disclosures are complete and correct as of the time they are made and neither burdensome, nor unduly burdensome or expensive. The rule focuses on the integrity of the discovery process and supplies a basis for controlling the process.

Question 39

What would be the first motion a party could make against discovery requests that are too broad?

Answer 39

Disproportional under Rule 26(b)(1) - listing the metrics of proportionality, along with Rules 33 and 34 that require an objecting party to be specific. Spell out how the other party’s request was overly broad and disproportional depending on what was being asked.

Relevance to the claim or defense

Privileged documents (lawyer-client variety), which would have to meet the standard of Rule 26(b)(5)

Question 40

Can a party with objections to discovery responses go before the court with their issue?

Answer 40

No, requesting party must try to resolve the matter informally. If that doesn’t work, the requesting party can file a motion for court order compelling discovery under Rule 37(a). The court will rule on the validity of the responding party’s objections.

If it finds the objections invalid, a court order compelling discovery. If the objecting party defies the order, the requesting party can go back to the court with a motion for sanctions under Rule 37(b).

Question 41

How are Rules 26(g) and 37(b) different?

Answer 41

Both are for sanctions, but Rule 37 sanctions are mostly triggered by a motion of a party whereas Rule 26 sanctions may be imposed by the court on its own volition. Rule 37 gives the court more flexibility/discretion to decide the sanctions versus Rule 26 that authorizes “appropriate sanctions”

Question 42

What is a protective order and how does a party obtain one?

Answer 42

Rule 26(c): Need to protect confidential documents (trade secrets, market research, development, commercial information) during discovery that wouldn’t fall under privileged. Usually provides a guarded disclosure to a limited number of persons who are required to protect against further disclosures.

Movant must certify it has made a good faith effort to resolve a dispute without court action and show that a protective order is necessary to protect it from “annoyance, embarrassment, oppression, or under burden and expense.”

Question 43

How should a court decide a motion for a protective order when the information sought is discoverable but the party resisting discovery makes a good faith showing that it is highly sensitive or burdensome to produce?

Answer 43

Rule 26(c): Judge should compare hardships to the party against whom discovery is sought, if discovery is allowed against the hardship to the party seeking discovery if discovery is denied.

Consider the nature of the hardship as well as its magnitude and thus give more weight to interests that have a distinctively social value than to pure private matters. Consider competing interests by a thoroughly crafted protective order.

Question 44

Plaintiff has filed an unduly broad and burdensome production request for thousands of documents, vast e-records that cannot be accessed without great expense, and privileged communications between the defendant and its lawyer.

Defendant fails to produce ANY documents in response and a telephone conference between both P and D lawyers goes nowhere. Plaintiff files a motion for sanctions along with a certification that it made a good faith effort to resolve the discovery dispute with defendant.

Defendant opposes the motion, filing a brief arguing that the request is overbroad, overly burdensome ($$$), and is asking for privileged information. The only supporting documents filed is a “privilege log” supporting the invocation of the lawyer-client privilege as required by Rule 26(b)(5)(a).

What actions should the court take?

Answer 44

Grant the motion because the defendant failed to respond.

Ordering the parties to compromise wouldn’t help, as that’s already been attempted with the phone conference. The production request is improper, so denial is tempting, but the defendant didn’t meet the burden of showing that the e-data would be difficult and costly.

Even if the defendant did demonstrate that the e-data would be costly, the judge must then weigh the costs/benefits of court ordering the discovery materials.

The plaintiff doesn’t have to file a motion to compel discovery since the defendant hasn’t responded. It’s too late for the defendant to object, since they stonewalled the plaintiff’s request.

Question 45

Company is the manufacturer of off-road recreational vehicles. Driver owns a vehicle manufactured by Company. Driver was injured while driving the vehicle on the highway. Driver claims that the vehicle accelerated when it was supposed to brake, and as a result it rolled into a ditch. A State Trooper was called and arrived at the scene of the accident. Plaintiff has informed Company that he intends to file a federal action, based on diversity jurisdiction, for injuries caused by the car’s alleged product-design defects. Company wants to find out what the State Trooper knows about the accident and whether Driver behaved in any erratic or unusual way, and has filed a verified petition with the federal district court in the district in which the accident occurred to depose the State Trooper.

Does the Company have a right to depose the State Trooper?

Answer 45

No, a party may not take discovery before the commencement of a federal lawsuit absent a special need to preserve testimony that is not present on these facts.

The federal discovery rules allow a party to petition a district court for an order to perpetuate testimony before a lawsuit has commenced: Rule 27. A party seeking pre-complaint discovery must file a verified petition with the district court which shows: “(A) that the petitioner expects to be a party to an action cognizable in a United States court, but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner’s interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent.” FRCP 27(a)(1). Pre-complaint testimony “cannot be used to discover evidence for the purpose of filing the complaint.” In

Question 46

Plaintiff buys a sweater from Defendant, who runs a mail-order clothing business. After wearing the sweater, Plaintiff develops rashes and later suffers neurological damage. She sues Defendant in federal court alleging that the sweater was treated with chemicals that caused her injury. Defendant serves Plaintiff with a Request for a Physical Examination, and Plaintiff refuses to comply. Defendant moves to compel discovery.

How should the district court resolve the dispute and why?

Answer 46

The district court should deny the discovery request, because Defendant did not move for such discovery and show good cause.

Physical or mental examination of a party will take place only upon court order if the requestor is able to show good cause for the request; when the matter is contested, granting the request falls within the trial court’s discretion. As with any discovery request, the information sought must be relevant to the claims and defenses in the action. Rule 26(b).

In addition, the federal rules impose other requirements before this kind of discovery will be permitted. The physical or mental examination of a party can take place “only on motion for good cause and on notice to all parties and the person to be examined,” and must also specify, among other things, the “scope of the examination, as well as the person … who will perform it.” FRCP 35(a)(2)(A) & (B).

Question 47

Plaintiff works for Defendant, an individual who supervises a rare books store owned by Company. Plaintiff holds a master’s degree in foreign languages and accepted the position because she assumed it would lead to professional advancement. Believing she has been passed over for a promotion because of her race and gender, Plaintiff sued both Defendant and Company in federal district court alleging discrimination. The complaint survived a motion to dismiss. Plaintiff now wants to depose Defendant to ask questions about Company’s promotion practices. Defendant does not live in the judicial district in which the court hearing the case is located.

Can the Plaintiff depose the witness?

Answer 47

Yes, but must provide reasonable written notice of the time and place of the deposition.

Federal discovery rules require that a requesting party give reasonable written notice to every other party to the action to examine a witness. See FRCP 30(b)(1). This rule applies whether or not the deponent is a party. Notice to all parties is required in order to give them an opportunity to cross-examine the deponent should they choose to do so. The notice must state the time and place for the taking of the deposition, but is not required to state the subject matter of the examination.

Question 48

Plaintiff, an individual who lives and works in California, was visiting New York. He decided to take a taxi to go across town. While driving on Sixth Avenue, Taxi Driver collided with Defendant’s truck. Defendant is an individual who lives and works in New Jersey and is employed by a trucking company that is incorporated and headquartered in New Jersey. Taxi Driver lives and works in New York. Plaintiff was seriously injured and eventually sued Taxi Driver, Defendant, and Defendant’s employer in federal district court on the basis of diversity jurisdiction.

Will Plaintiff be able to discover the existence of the three defendants’ insurance coverage?

Answer 48

Yes, because the facts of insurance coverage must be disclosed even without a discovery request.

The federal discovery rules make the disclosure of insurance agreements a subject of mandatory initial disclosure without a discovery request. Under the rule, every party must provide “for inspection and copying … any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.” FRCP 26(a)(1)(A)(iv).

As with other mandatory initial disclosures, insurance information must be provided without a discovery request at or within 14 days after the required discovery meeting, see FRCP 26(f), unless otherwise ordered by the court or the parties stipulated to a different time. Keep in mind that the federal rules did not always explicitly authorize the disclosure of insurance information from an opposing party.

Question 49

An out-of-state citizen sued a police department in a federal diversity case, alleging negligent retention of an officer who had used excessive force against him. Even though discovery established this claim with undisputed evidence, the department refused to settle.

Ultimately, the court granted the citizen summary judgment, reasoning he had established all elements of his claim as a matter of law. The court then awarded the citizen attorneys’ fees on the ground that the department had defended the claim in bad faith. Under a 1973 U.S. Supreme Court decision, federal courts have inherent equitable power to award attorneys’ fees for “bad faith” litigation conduct even if no fee-shifting statute applies. The rationale is that the policies supporting the American rule, where each party pays its own attorneys’ fees, don’t apply to parties acting in bad faith, who need to be deterred and punished for such conduct.

By contrast, courts in the state where the federal court sits never award attorneys’ fees without a fee-shifting statute. If the attorneys’ fees award is challenged on appeal, how should the appellate court rule?

Answer 49

The appellate court should uphold the award, because the federal rule authorizing attorneys’ fees for bad faith litigation conduct is procedural in nature.

Under the Erie doctrine, when state and federal law conflict in a diversity case and there is no Federal Rule of Civil Procedure on point, the court must analyze whether the state practice is substantive (bound up with state-created rights and obligations) or procedural (a matter of forum and mode). If it is substantive, the state practice must prevail. If it is procedural, the analysis of which practice—federal or state—must be observed turns on the degree of outcome determination if both practices were to remain in place. Here, the issue of attorneys’ fees is not substantive. It’s not appended to any cause of action or other state-created right or obligation.

As a matter of form and mode, it’s unlikely that maintaining the federal approach alongside the state’s conflicting practice would be outcome determinative in the Erie “twin aims” sense.

Question 50

An automotive engineer employed by Ford Motor Company designed the accelerator system for the Ford Focus car. Defects in the Ford Focus accelerator system are now at issue in a federal court class action lawsuit filed by consumers harmed in accidents where the accelerator malfunctioned. May the consumers take the engineer’s deposition?

Answer 50

Yes, because the engineer is a witness with both expertise and personal knowledge of the facts relevant to the lawsuit.

The engineer may be deposed because the engineer’s testimony will consist of personal knowledge and expert opinion acquired as the accelerator designer during the design phase—not after the fact as a testifying or consulting expert. See Rule 26(b)(4)(A) and Rule 26(b)(4)(D).

Question 51

Pure Dairy, a food manufacturer, is sued in federal court under diversity jurisdiction by several consumers who experienced severe food poisoning after eating Pure Dairy’s eggs. Pure Dairy’s defense is that the consumers’ food poisoning was caused by improper cooking techniques, not impurities in the eggs. To support its defense, Pure Dairy hired a professor of food science, with whom it frequently corresponded as the litigation progressed. The correspondence began with an engagement letter that specified the professor’s fee and the scope of his work. That work included testifying at trial. Pure Dairy’s attorney also wrote to the professor about facts learned in discovery, seeking the professor’s opinion on how those facts shed light on the food poisoning’s potential causes. Based on those facts, the professor wrote a draft report stating his opinion on what caused the food poisoning, which was revised before being finalized and turned over to the plaintiffs. Which of the following pieces of information would not be discoverable under Rule 26?

Answer 51

The professor’s draft report

The food science professor is a testifying expert, and Rule 26(a)(2)(B) requires a testifying expert to produce a final report stating his or her expert opinions, the facts or data used to form them, the exhibits the expert will use, the expert’s qualifications, a list of cases in which the expert has testified, and a statement of the expert’s compensation. However, Rule 26(b)(4)(B) excludes from discovery drafts of any such report. As a result, any version that the food science professor drafted before his final report would not be discoverable.

Question 52

Toyco, a toy manufacturing company, sued one of its former employees in federal court under federal and state laws for designing and marketing a competing toy while she was still employed at Toyco. In discovery, Toyco asked the former employee to produce hard drives from any personal laptop computer she used for design purposes while working at Toyco. The former employee responded that no such hard drives existed. Later, in her deposition, the former employee testified that she had a personal laptop while she worked at Toyco but used it only for gaming, never for designing. She testified that she had cleaned the hard drive and disposed of the laptop one year after she stopped working for Toyco because she was seeking treatment for a gaming addiction—even though by then Toyco’s lawyer had threatened to sue her. Other discovery evidence corroborated that the former employee’s competing designs were composed on a work-issued computer. What sanctions, if any, should the court impose for the former employee’s failure to preserve her personal laptop’s hard drive?

Answer 52

The court should not impose sanctions, because the loss of the laptop and its hard drive did not prejudice Toyco.

Because a laptop hard drive contains electronically stored information, Rule 37(e) applies. Under Rule 37(e)(1), sanctions for non-intentional deprivation of evidence may be imposed only on a finding of prejudice to the opposing party. Nothing in the question suggests that the former employee disposed of the laptop to intentionally deprive Toyco of evidence. As to prejudice, the loss of a hard drive that would reveal gaming habits but not competing designs will not prejudice Toyco’s unfair competition claim. First, a laptop used only for gaming and not designing is not even responsive to Toyco’s discovery request for “any personal laptop computer used for design purposes.” Second, in any event, Toyco has evidence of the employee’s competing designs from another source.

Question 53

A plaintiff sued a defendant in federal district court for personal injuries arising out of a car accident. Following discovery, the defendant moved for summary judgment, arguing that the plaintiff had caused the accident when she entered the intersection after failing to stop at a northbound red light. The plaintiff cross-moved for summary judgment, arguing that the defendant had caused the accident when he entered the intersection after failing to stop at a westbound red light. No cameras had recorded the accident and no witnesses had seen the accident besides the plaintiff and the defendant.

Is the district court likely to enter summary judgment in the defendant’s favor?

Answer 53

No, because the case’s outcome rests upon the credibility of the plaintiff and the defendant.

Summary judgment is appropriate when there are no genuine disputes as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). However, summary judgment is inappropriate if a genuine dispute of material fact remains, despite both parties requesting summary judgment.

Here, the plaintiff and the defendant were the only witnesses to the accident and have presented conflicting versions of events. The defendant says that the plaintiff caused the accident by failing to stop at a red light, while the plaintiff says the defendant caused the accident by failing to stop at a red light. These conflicting versions of events pose a genuine dispute on a material fact: which driver failed to stop at the red light and, in turn, caused the accident. Resolving the factual dispute will require determining the relative credibility of the plaintiff and the defendant, which is the jury’s role at trial, not the court’s role at summary judgment. For this reason, the court will not enter summary judgment in the defendant’s favor

Question 54

A plaintiff sued a defendant for misrepresentation in federal district court. The complaint claimed that the defendant had misled the plaintiff about the value of a business that the plaintiff was purchasing from the defendant. During negotiations on the purchase, the parties had communicated through their attorneys. During discovery, the plaintiff sought production of all of the defendant’s communications with the attorney that had represented the defendant in the purchase. The plaintiff claimed that the communications were relevant to show the defendant’s intent to deceive, a required element of the plaintiff’s claim. The defendant’s attorney in the lawsuit objected that the communications were privileged and therefore not discoverable, but the plaintiff’s lawyer insisted.

Which of the following should the defendant do next?

Answer 54

Move for a protective order with the court.

When the parties are unable to resolve a discovery dispute, the party objecting to requested discovery should then move for a protective order with the court. Alternatively, the party seeking the discovery may move to compel discovery. See Fed. R. Civ. P. 26(c) (discussing protective orders); Fed. R. Civ. P. 37 (discussing procedures for motions to compel discovery).

Here, the defendant understandably does not want to produce the requested communications with its attorney, because those communications are protected by the attorney-client privilege. Because the parties have attempted to resolve the dispute and have failed, the defendant’s next step is to seek a protective order from the court. The defendant’s motion for a protective order will likely be successful, unless the plaintiff can show why the attorney-client privilege does not protect the requested communications. In general, privileged materials are outside the scope of discovery. See Fed. R. Civ. P. 26(b)(1). Note that the other option the defendant has, while not listed here, would be to simply refuse to produce the communications and let the plaintiff file a motion to compel discovery. Again, unless the plaintiff can show that the communications are not in fact privileged, the motion to compel will not be successful.

Question 55

A plaintiff sued a defendant in federal district court for trademark infringement. The defendant counterclaimed, arguing that the plaintiff’s restrictive licensing practices violated federal antitrust law. After the close of the pleadings, the defendant served discovery requests on the plaintiff, seeking production of all communications and information related to the plaintiff’s licensing practices over the past five years. The plaintiff objected to the requests as seeking irrelevant information.

Is the information requested by the defendant within the scope of discovery?

Answer 55

Yes, because the information is relevant to the defendant’s antitrust counterclaim.

To be within the scope of discovery, information must be nonprivileged and relevant to any party’s claim or defense. Fed. R. Civ. P. 26(b)(1). Here, the information the defendant has requested is relevant to its antitrust counterclaim, which challenges the plaintiff’s licensing practices. The information is therefore within the scope of discovery.

Question 56

A plaintiff served a complaint for patent infringement and 10 discovery requests on its competitor. Both the complaint and the requests were served together with the summons on the competitor’s registered agent in the state. The discovery requests sought information regarding the competitor’s product that the plaintiff accused of infringement. The competitor had maintained the details of its product as trade secrets. Altogether, the requests sought more than 10,000 pages of documents.

Does the competitor have to produce the documents?

Answer 56

No, because discovery has not yet begun.

The exact date on which discovery begins may vary from case to case, but in general, parties do not engage in much discovery before the pleadings are closed. With a few exceptions, Rule 26 of the Federal Rules of Civil Procedure prohibits a party from seeking discovery until the parties have met and conferred in an initial Rule 26(f) conference. Fed. R. Civ. P. 26(d). District courts may promulgate local rules, and individual judges may issue standing orders, which specify a more precise time frame for when discovery may begin. However, in general, discovery does not begin as soon as the plaintiff has served a complaint.

Therefore, the competitor here does not yet have to respond to the plaintiff’s discovery requests, because discovery has not yet begun. The earliest the competitor would be considered served with the requests is at the parties’ Rule 26(f) conference. See Fed. R. Civ. P. 26(d)(2).

Question 57

A plaintiff brought an employment discrimination action against her former employer in federal court. On the first day of the discovery period, the plaintiff’s attorney requested that the employer produce more than 10,000 pages of his employee payroll records. There was likely to be information in the records relevant to the plaintiff’s claims, and electronically scanned copies of the records were easily accessed on the employer’s computer. The employer’s attorney thus promptly emailed the records to the plaintiff’s attorney upon receiving the request. When the plaintiff’s attorney received the email, however, he objected to the electronic production and demanded that the employer produce hard copies of the 10,000 pages. Producing hard copies would be a significant expense and burden to the employer. The plaintiff’s attorney also stated that he planned to contact the court about a potential discovery dispute.

How should the employer’s attorney respond, if at all?

Answer 57

Explain to the plaintiff’s counsel why complying with this request would be unduly burdensome, and discourage him from contacting the court.

The court is minimally involved with the discovery process; the parties are expected to resolve disputes reasonably and ask the court to step in only if they cannot resolve the dispute or things get out of hand.

Question 58

A plaintiff sued a defendant in federal district court for patent infringement. In response to the plaintiff’s discovery request, the defendant produced quarterly revenue reports. The quarterly reports showed the number of allegedly infringing products the defendant had sold, the price of each product, and the purchasers for each product. The plaintiff planned to use the quarterly reports for its damages calculations. The plaintiff then served additional requests on the defendant, seeking production of each individual sales receipt for each allegedly infringing product sold. Like the quarterly reports, the receipts showed the number of allegedly infringing products sold, the price for each product, and the purchaser. The defendant objected to this request, as the receipts were stored in several different locations and would be difficult to gather. The plaintiff insisted, explaining that the receipts were relevant to damages. The defendant then moved for a protective order.

Which of the following best supports the district court’s decision to grant the defendant’s motion for a protective order?

Answer 58

The plaintiff already has the quarterly reports

A court must limit discovery via a protective order if it finds that (1) the discovery is unreasonably cumulative or duplicative, or can be obtained from a more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the information already; or (3) the burden or expense of discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C).

Here, the fact that the plaintiff already has the quarterly reports best supports the district court’s decision to grant the defendant’s motion for a protective order and refuse to order discovery. The information in the sales receipts is duplicative of what the plaintiff has already obtained in discovery via the quarterly reports. Therefore, the district court’s protective order is best explained by the fact that the plaintiff’s request for the receipts is unreasonably cumulative or duplicative.

Question 59

Three plaintiffs sued a cruise ship captain and related cruise line in federal district court. All three plaintiffs were injured while passengers on board a cruise ship that had entered stormy waters. The first plaintiff wanted to discover from the cruise line all policies and procedures relating to ship-route planning during significant weather events.

How should the first plaintiff make a request for production of the route-planning policies and procedures?

Answer 59

The first plaintiff should serve the request on all of the parties

Requests for documents or things must be served on the producing party or nonparty. Fed. R. Civ. P. 34(a)(1), 45. Rule 5 requires that any discovery paper required to be served on another party also be served on every party to the case, unless the court orders otherwise because there are numerous defendants. Fed. R. Civ. P. 5(a)(1)(C).

Here, the first plaintiff is requesting that the cruise line, a party, produce its routing policies and procedures. Rule 34 requires the first plaintiff to serve its request on the cruise line. Rule 5 requires that the plaintiff serve all of the other parties in the case, unless the court has ordered otherwise. Because the facts do not indicate that the court has ordered otherwise, all of the parties should be served with the first plaintiff’s request for production

Question 60

During discovery in a trademark-infringement dispute pending in federal district court, the plaintiff served a request for production of documents on the defendant. The request sought production of all sales records of the defendant’s allegedly infringing product. The defendant sold 15 different products, only one of which the plaintiff had accused of infringement. The defendant maintained only paper sales records for all of its products in a file cabinet. The records were not organized by date, product sold, or purchaser. Rather, according to the defendant’s administrative personnel, sales receipts were put in file folders when people had time to file and placed wherever there was room inside the file cabinet. In total, the file cabinet included approximately 5,000 pages of documents for sales records on all of the defendant’s products. The defendant estimated that approximately 100 of the pages included information about sales of the allegedly infringing product.

May the defendant produce the entire file cabinet of sales records?

Answer 60

No, because the defendant’s record-keeping practices are too disorganized to meet its obligations under Rule 34.

In responding to a request for production of documents, a party must produce documents as they are kept in the usual course of business, or must organize and label them to correspond to the categories in the request. Fed. R. Civ. P. 34(b)(2)(E).
One of the purposes of Rule 34’s rules regarding the form of production is to prevent a responding party from burying the proverbial needle in the haystack, by producing a small number of responsive documents inside a larger set of unresponsive documents. In general, the burden and expense of locating responsive documents within a production under Rule 34 should be substantially equal for the producing and the requesting parties.

A producing party who claims it produced documents according to how they were stored in the usual course of business has the burden of proving that its production conformed to its filing practices. However, even if a party produces documents as they were kept in the usual course of business, if its record-keeping system was so deficient as to undermine the usefulness of the production, the party has not met its obligations under Rule 34

Question 61

A plaintiff sued her former employer in federal district court for employment discrimination. The plaintiff had worked in the employer’s human resources (HR) department for the five years preceding the lawsuit. According to the complaint, male employees in HR advanced more rapidly at the former employer than similarly qualified female employees. During discovery, the plaintiff sought production of all records maintained on employee promotion and advancement.

How, if at all, should the former employer respond to the plaintiff’s request for production?

Answer 61

The former employer should object to the request as lacking reasonable particularity.

A request for production must describe with reasonable particularity each item or category of items to be inspected. Fed. R. Civ. P. 34(b)(1)(A). In general, a request with reasonable particularity should place a responding party and the court on notice about what must be produced and what need not be produced. The most important factor in determining whether a request has reasonable particularity is how familiar the requesting party is with the materials she is seeking.

Here, the former employer should object to the plaintiff’s request as lacking reasonable particularity. A request for all records relating to employee promotion and advancement is very broad. The request on its fact contains no time limit and would appear to encompass all records since the former employer began operations, not just the five years during which the plaintiff was employed.

Moreover, all records on employee promotion and advancement would appear to include any records the former employer maintained about how employees were generally promoted, as well as records on specific employees. The plaintiff worked in the HR department and would therefore possess a degree of familiarity with the kinds of records the employer kept on employee promotion and advancement. Therefore, the plaintiff is likely capable of stating her request more specifically, so that both the former employer and the court may determine what information she is seeking. For example, the plaintiff could identify a type of document (i.e., quarterly performance reviews), types of data maintained in HR (i.e., average tenure of HR employees at the time of promotion to a given position), or records maintained by a particular group or division within HR

Question 62

Under the Federal Rules of Civil Procedure, when, if ever, must a party have the court’s permission to conduct a deposition even though the parties have agreed to the deposition?

Answer 62

When the deponent is incarcerated at the time the deposition will take place.

A party must receive permission from the court to depose a witness or party if the parties have not stipulated to the deposition and (1) the party would be exceeding the permissible number of depositions under Rule 26; (2) the witness has already been deposed in the lawsuit; (3) the party wants to take the deposition before discovery starts; or, regardless of any agreement between the parties, (4) the witness to be deposed is confined in prison. See Fed. R. Civ. P. 31(a)(2)

Question 63

A plaintiff sued her former employer in federal district court in State A for violations of the Americans with Disabilities Act. The complaint alleged that the employer had failed to reasonably accommodate the plaintiff’s disability. The plaintiff’s former manager, who had supervised her during the relevant time period set out in the complaint, had since retired and moved 1,000 miles across the country to State B. Both parties wanted to depose the former manager.

Where do the Federal Rules of Civil Procedure require that the former manager’s deposition take place?

Answer 63

Within 100 miles of where the former manager lives or works