Civil Procedure
Professor Nathenson
QUESTIONS THAT MAY BE RELEVANT TO CHAPTER 21:
SCOPE OF DISCOVERY
Note to students: I used these questions with my previous Civil Procedure class when we used the Marcus casebook. I have re-organized them to correspond roughly with the ordering of materials in chapters 21, 22, and 23 in the Glannon casebook. However, in class we will focus on the assigned materials in Glannon and not these questions.
Regardless, I thought you might find it helpful to have my old questions in case you find them to be helpful.
To be clear, these questions are not assigned and we will not refer to them expressly in class. You may also note that some of the questions concern matters that may fall outside of the scope of the assigned materials from Glannon : as noted, this is because they were developed for another casebook.
FRCP 26 – Scope of discovery
1.
What is the scope of discovery under Rule 26(b)(1)?
2.
If something is not admissible in court, can it still be discovered? See 26(b)(1).
Attorney-Client Privilege & Work Product Doctrine:
1.
Provide a definition of the attorney-client privilege and the work product doctrine.
Distinguish the purposes of the two doctrines.
2.
When the client is a corporation, how do you determine whether attorney conversations with employees are privileged?
3.
When is attorney-client privileged material discoverable? When is work product discoverable?
4.
Can the work of a non-lawyer investigator be treated as work product under Rule
26(b)(3)? Under Hickman ?
5.
Provide examples of things that would be: a) protected as work product, but not under the attorney-client privilege; and b) protected under the attorney-client privilege, but not the work product doctrine.
6.
Can a lawyer use the work product doctrine to refuse to give a copy of a signed statement to the witness or opposing party who signed the statement? See Rule
26(b)(3).
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7.
How does a party assert a privilege or claim of work product? See Rule 26(b)(5).
8.
If privileged or work product information is erroneously disclosed, can it be recalled?
See Rule 26(b)(5). Does Rule 26(b)(5) determine whether the privilege or protection for such information is preserved or lost?
FRCP 26 – Timing and of discovery and Rule 26(f) conference
1.
As a general matter, when may discovery begin? See Rule 26(d)(1) for a start.
2.
Do the Rules require that discovery proceed in a particular order? See Rule 26(d)(2).
3.
What must be discussed at the Rule 26(f) discovery conference? See Rule 26(f).
4.
When must the discovery conference take place? See Rule 26(f).
5.
Who must appear at the discovery conference? See Rule 26(f).
6.
Must a written discovery plan be submitted to the court? When? See Rule 26(f).
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Professor Nathenson
QUESTIONS THAT MAY BE RELEVANT TO CHAPTER 22:
DISCOVERY TOOLS
FRCP 26(a) – Mandatory disclosures; duty to supplement
1.
What is the difference between disclosures and discovery? Compare, e.g., Rule
26(a)(1) with Rule 26(b)(1).
2.
To what types of actions do initial disclosures apply? See Rule 26(a)(1).
3.
If a party does not request initial disclosures, must the opposing party provide disclosures? See Rule 26(a)(1).
4.
What must be disclosed initially? See Rule 26(a)(1).
5.
When must initial disclosures be made? See Rule 26(a)(1).
6.
Suppose a defendant to a negligence claim knows of two witnesses, one who will support the defendant’s defense and one who will support the plaintiff’s case. Who must be disclosed (if any) and why? See Rule 26(a)(1)(A).
7.
What must be disclosed pre-trial? When must it be disclosed? See Rule 26(a)(3).
8.
What is the scope of the duty to supplement disclosures and discovery responses?
See Rule 26(e).
FRCP 27, 28, 30, 31, 32 – Depositions
1.
What is an oral deposition? See Rule 30.
2.
Are depositions taken under oath? See Rule 28(a), Rule 30(b)(5), Rule 30(f)(1).
Why are oaths important?
3.
Rule 28(c) states that “A deposition must not be taken before a person . . . .” Who is the “person” Rule 28(c) is talking about?
4.
Can a deposition be “taken before” the attorney’s mother? What about “taken before” the defendant’s employee? See Rule 28(c).
5.
May a person take a deposition before an action is filed? See Rule 27.
6.
May depositions be taken upon written questions? See Rule 31. What is the difference between Rules 31 and 33?
7.
What is the default maximum number of depositions? See Rule 30(a)(2).
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8.
What is the default maximum length of a deposition? See Rule 30(d)(1).
9.
May a deposition be taken of a witness who is not a party? See Rule 30(a).
10.
What type of notice is required? To whom should it be sent? See Rule 30(b).
11.
What techniques may be used to record the deposition? See Rule 30(b)(3).
12.
Can a deposition be done over the phone? Videoconference? See Rule 30(b)(4).
13.
What if a plaintiff wants to depose the “key person” at a defendant corporation who can explain how the defendant’s computer systems works. What should plaintiff do?
See Rule 30(b)(6).
14.
If counsel reasonably objects to a party’s conduct, or to the qualification of the officer taking the deposition, may the deposition be terminated? See Rule 30(c), Rule
30(d)(3).
15.
When can counsel instruct a deponent not to answer a question? See Rule 30(c)(2).
FRCP 33 – Interrogatories
1.
What is an interrogatory? To whom may an interrogatory be directed? See Rule
33(a).
2.
What is the default maximum number of interrogatories? See Rule 33(a).
3.
May a party serve 10 interrogatories, each with three subparts? See Rule 33(a).
4.
Who signs the answers to interrogatories? Under oath? Who signs any objections to interrogatories? Under oath? See Rule 33(b).
5.
May an interrogatory request the opposing party to state their legal interpretation regarding the facts of the case? See Rule 33(a).
6.
Instead of answering an interrogatory, may a party refer the requesting party to the answering party’s business records? Under what circumstances? See Rule 33(d).
FRCP 34 – Production of documents & things
1.
Which of the following may be discovered or requested under Rule 34: 1) paper documents; 2) a rock; 3) a painting; 4) the plaintiff’s hard drive; or 5) a visit to the defendant’s place of business? See Rule 34(a).
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2.
May a party use Rule 34 to request things not in the possession, custody, or control of the other party? See Rule 34(a).
3.
May the requesting party identify specific documents by name? Must it? See Rule
34(b).
4.
May a responding party throw all the requested documents in a big box, shake the box vigorously, and produce the documents in that manner? If not, in what order should the documents be produced? See Rule 34(b)(2).
FRCP 26, 34 – Electronic discovery
1.
May a party who requests electronically stored information (“ESI”) request the form or forms in which the ESI is to be produced? See Rule 34(b)(1).
2.
Suppose a party requests ESI, but does not specify the form or forms in which it wants the information. What should the opposing party do? See Rule 34(b)(2).
3.
Suppose a party refuses to produce ESI on the basis of undue burden or cost. Can the requesting party move to compel discovery? See Rule 26(b)(2)(B).
4.
In a dispute over electronic discovery, what showing must the objecting party make before the court? What showing must the requesting party make before the court?
See Rule 26(b)(2)(B).
5.
When producing ESI is unduly burdensome or expensive, must the court deny such discovery? See Rule 26(b)(2)(B) and (C).
FRCP 35 – Physical or mental examinations
1.
When is a mental or physical examination appropriate? See Rule 35(a).
2.
Who is subject to a physical or mental examination? See Rule 35(a).
3.
Is a court order required? See Rule 35(a).
4.
Provide an example of a case in which an exam would be appropriate, and an example of a case in which an exam would be inappropriate. See Rule 35(a).
FRCP 36 – Requests for admission
1.
What is a request for admission? See Rule 36(a).
2.
What subject matter is appropriate in requests for admissions? See Rule 36(a).
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3.
What happens if the responding party never responds to a request for admission? See
Rule 36(a).
4.
What is the effect of an admission? See Rule 36(b).
5.
Can an admission in a lawsuit be used in a subsequent lawsuit? See Rule 36(b).
FRCP 45 – subpoenas
1.
Can a party obtain depositions or document production from a non-party witness?
Can a party obtain both? How? See Rule 45.
2.
Under what circumstances can a person served with a subpoena serve written objection? If written objection is served, what recourse exists for the party serving the subpoena? See Rule 45(c).
3.
When must a court quash or modify a subpoena? See Rule 45(c)(3)(A).
4.
When may a court quash or modify a subpoena? See Rule 45(c)(3)(B).
5.
Must an unretained expert always comply with a subpoena? See Rule 45(c)(3)(B)(ii).
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Professor Nathenson
QUESTIONS THAT MAY BE RELEVANT TO CHAPTER 23:
DISCOVERY CONTROL AND ABUSE
Control
1.
Can courts alter the default limits on the number of certain discovery requests? See
Rule 26(b)(2)(A).
2.
May a court limit the extent or frequency of discovery methods? In limiting discovery, may a court act on its own initiative or must it wait for a motion? What bases permit a court to limit discovery? See Rule 26(b)(2)(C).
3.
Under what circumstances may a party request a protective order? What is the procedure for requesting a protective order? See Rule 26(c).
Certification
1.
Must disclosures, discovery requests, responses, or objections be signed? See Rule
26(g).
2.
What is certified by a signature on a disclosure? See Rule 26(g)(1)(A).
3.
What is certified by a signature on a discovery request, response, or objection? See
Rule 26(g)(1)(B).
4.
Must a party respond to an unsigned discovery request? See Rule 26(g)(2).
5.
May a discovery request be stricken if unsigned? See Rule 26(g)(2).
6.
What is the sanction for improper certification? See Rule 26(g)(3).
Enforcement & sanctions
1.
When and under what circumstances may a party move for an order compelling disclosure or discovery? See Rule 37(a).
2.
If a party makes an evasive initial disclosure, can the opposing party seek a motion to compel? See Rule 37(a)(3)(A), 37(a)(4).
3.
What should the court do if it wants to grant a motion to compel? What if it wants to deny? What if it wants to grant in part and deny in part? See Rule 37(a)(5).
4.
How does Rule 37(b) differ from Rule 37(a)?
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5.
Under what circumstances may a court sanction a party pursuant to Rule 37(b)?
What sanctions are available? Are sanctions mandatory or discretionary?
6.
What sanctions are permitted against a party who fails to make an initial disclosure, required supplementation, or amendment of a discovery response? See Rule 37(c)(1).
7.
What sanctions are possible if a party fails to admit the genuineness of a document under Rule 36, and the document’s genuineness is later proven in court? See Rule
37(c)(2).
8.
What sanctions are permitted against a party who fails to appear for a deposition, fails to answer interrogatories, or fails to respond to a request for inspection? See Rule
37(d).
9.
Can the court sanction a party for failing to provide electronically stored information lost through accidental but routine good faith operation of the party’s computer systems? See Rule 37(f) and the excerpt from the Advisory Committee Notes for
Rule 37(e) (formerly Rule 37(f)).
* * * *
Excerpt from the Advisory Committee Notes for the 2006 amendments to the FRCP regarding Rule 37(e) (which was formerly 37(f)).
Note to Subdivision (f) [which is now 37(e)]. Subdivision (f) is new. It focuses on a distinctive feature of computer operations, the routine alteration and deletion of information that attends ordinary use. Many steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Under Rule 37(f), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.
Rule 37(f) applies only to information lost due to the "routine operation of an electronic information system"--the ways in which such systems are generally designed, programmed, and implemented to meet the party's technical and business needs. The
"routine operation" of computer systems includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents. Such features are essential to the operation of electronic information systems.
Rule 37(f) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party's intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in
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Professor Nathenson the case. The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a "litigation hold." Among the factors that bear on a party's good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.
Whether good faith would call for steps to prevent the loss of information on sources that the party believes are not reasonably accessible under Rule 26(b)(2) depends on the circumstances of each case. One factor is whether the party reasonably believes that the information on such sources is likely to be discoverable and not available from reasonably accessible sources.
The protection provided by Rule 37(f) applies only to sanctions "under these rules." It does not affect other sources of authority to impose sanctions or rules of professional responsibility.
This rule restricts the imposition of "sanctions." It does not prevent a court from making the kinds of adjustments frequently used in managing discovery if a party is unable to provide relevant responsive information. For example, a court could order the responding party to produce an additional witness for deposition, respond to additional interrogatories, or make similar attempts to provide substitutes or alternatives for some or all of the lost information.
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