Discovery study questions II: discovery tools

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) and (d)(3).
  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).

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? Though not listed on the assignments page, take a look at 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).
  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).
  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).
  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(d).
  3. When must a court quash or modify a subpoena? See Rule 45(d)(3)(A).
  4. When may a court quash or modify a subpoena? See Rule 45(d)(3)(B).
  5. Must an unretained expert always comply with a subpoena? See Rule 45(d)(3)(B)(ii).

Updated Feb. 5, 2016