Deck 7: Discovery and Electronic Discovery: Overview and Interrogatories

Question 1

What are the basic reasons discovery requests are objectionable under Rule 26(b)(1)? Explain each objection.

Answer 1

Irrelevant; work product; privileged; vague; ambiguous; unintelligible; unduly burdensome.
Irrelevant: A question is objectionable if its ultimate aim is to elicit evidence information that is not relevant to the issues in the case.
Privileged: A question that calls for information protected by the attorney-client, husband-wife, and like privileges is objectionable.
Work product (trial preparation materials): If a question calls for the mental impressions, conclusions, legal theories, and like matters related to the attorney's preparation for trial, it need
not be answered. Objectionable questions typically ask for the names of witnesses who will be called at trial and for the names and opinions of experts who are hired as consultants and not as trial witnesses. The work product objection, however, is often invoked too broadly and abused.
Vague, ambiguous, and unintelligible: Occasionally a question is so unspecific or worded so unclearly that it requires the answering party to guess at the meaning of the question. Such a
question is objectionable. This objection may also apply to the instructions.
Too broad: A question can be so inclusive that its limits are excessive. For example, a question calling for the names of all the documents gathered over the last twenty years pertaining to the incident in question is so sweeping in its coverage that it is overly burdensome, while also calling for irrelevant material. Questions requesting information covering an unduly lengthy time span are objectionable. The scope of the question must be reasonable.
Unduly burdensome: Paragraph (c) of Rule 26 allows a party to seek a protective order from unduly burdensome or expensive discovery requests. It is a valid objection to a particular interrogatory or an entire set of interrogatories. If a question or set of questions requires a response that is excessively detailed, costly, time-consuming, or embarrassing relative to the opponent's need for the requested information, then the question or set of questions is objectionable.

Question 2

Go to the law library, Westlaw, LEXIS, or an Internet-based Web site and find at least five federal or state court decisions that found specific kinds of discovery requests not discoverable. List these and return to class ready to report the cases and the types of requests that were denied by the court.

Answer 2

This answer will vary depending on the cases chosen by the student. This will give students further insight into what the limits to discovery are under both federal and state rules. Because students are likely to come back with different cases, this assignment can serve as the basis for a good class discussion while providing students with good case references.

Question 3

What are the basic procedures that must be followed when utilizing interrogatories? What are the specific steps in planning a set of interrogatories?

Answer 3

A significant step in the planning of interrogatories is determining what information suitable for interrogatories is needed from the opponent. Ultimately the attorney will decide this issue, but you
will often have responsibility for initiating the work. The following steps provide a guideline for this task:
(a) Keep the task clearly in mind, noting any special directions. In this case the task is to draft interrogatories to be submitted to Mercury Parcel Service.
(b) Review the case file including the pleadings and any other documents exchanged, as well as information obtained through informal investigation. Note areas that need clarification or more information. Review the complaint, answer, and counterclaim found in Chapters 4 and 6. Also review the information obtained in the informal investigation stages found in Chapter 3.
(c) Review or determine the elements of the cause of action according to the method outlined in
Chapter 3. Also, know the elements of any alleged defense and counterclaim. Review the broad goals to be accomplished against the defendant at trial.

Question 4

List and define the seven discovery devices set out in the Federal Rules of Civil Procedure.

Question 5

In both the ethics and discovery sections of your systems folder, place your own restatement of the ethical principles covered in this chapter, and cite the pertinent ethical rules.

Question 6

Drawing from the discussion on the scope and limitation of disclosure and discovery plus the pertinent rules of evidence discussed in Chapter 3, indicate whether the following would be discoverable in the Ann Forrester case. If an item would be discoverable only on a showing of undue hardship, indicate that as well. The first item is completed for you as an example. D = discoverable, ND = not discoverable, R = reason not discoverable, E = exceptional circumstances, H = undue hardship.

Question 7

What are the steps to be followed in preparing answers to interrogatories?

Question 8

Drawing from the interrogatory section of the chapter and any information added in class, draft a checklist for answering interrogatories and place it in your systems folder. The checklist should cover the basic steps and techniques for preparing, drafting, serving, and updating interrogatories.

Question 9

What must be disclosed under initial disclosure? "Pretrial" disclosure? When must objections to the disclosure of any item occur?

Question 10

What kinds of information lend themselves to exploration through interrogatories?

Question 11

What are the typical divisions of and types of questions that make up a set of interrogatories?
Explain their usefulness.

Question 12

What are interrogatories, and their purpose and advantages? What federal and state rules govern interrogatories? What is the limit on the number of interrogatories for federal and your state practice?

Question 13

What reason is permitted for not producing some requested electronically sorted information under
Fed. R. Civ. P. 26(b)(2)(b)?

Question 14

What are the important ethical rules that apply to discovery? What is their significance?

Question 15

Assume that you are the paralegal whose firm is representing Carl Ameche in Case II, the campground fire case. Draft answers to several of the questions in the sample set of interrogatories (Exhibit 7.11). Also practice objections and how to respond when unsure of your information in your answers. Alternatively, answer your own interrogatories for practice and to evaluate the quality of your interrogatories. Use the requirements set out in the preceding paragraphs.

Question 16

Define the term discovery and describe its purposes in the context of litigation practice.

Question 17

In general, what kinds of information must be provided under the federal disclosure rule and under your state rule? How does your state rule differ from the federal rule?

Question 18

What is the function of a preservation letter? What are its benefits? What makes a good preservation letter?

Question 19

When must mandatory disclosure occur? What must occur before an opposing party can depose an expert under this rule?

Question 20

What is the scope of discovery as defined by Federal Rule 26(b) and parallel state rules? Has your state adopted the Federal Rules of discovery? If so, cite the statute or rule numbers.

Question 21

Assume that you are a paralegal for a firm representing Make Tracks, Inc., Case III. In the discovery stage, your attorney asks you to draft as many questions as you can because she wants to "paper the plaintiff to death." She also says answer plaintiff's questions as narrowly as possible, and respond that requested safety test reports have been temporarily misplaced, even though you saw them in the file yesterday. What specific ethical concerns arise and what rules of professional conduct apply?

Question 22

When does a party have a duty to update discovery information? What are the applicable federal and state rules?

Question 23

Identify the general discovery rules, both federal and state, and place the information in your systems folder for future reference.

Question 24

Are the federal procedure for compelling answers to interrogatories different than your state rules? If so, identify the differences.

Question 25

Justice is better served when a case is tried on its merits rather than on surprise tactics.

Question 26

Assume that you are the paralegal whose firm is representing the Briar Patch Dolls, Inc. in Case IV, the breach of contract case. Draft interrogatories to Teeny Tiny Manufacturing.
Now, answer your own interrogatories for practice and to evaluate the quality of your interrogatories. Also practice objections and how to respond when unsure of your information in your answers.

Question 27

What is the best process for updating answers to interrogatories?

Question 28

Reverse the exercise in Assignment 1 and prepare interrogatories on behalf of Teeny Tiny
Manufacturing from Case IV.

Question 29

What does the obligation to update discovery consist of? Can you play a key role here? Explain.

Question 30

Compare and contrast your state's rules regarding the preservation of electronic information with the federal rules of civil procedure.

Question 31

Determine the elements of proof for the type of discrimination case in Case V, Rakowski v. Montez
Construction Co. Place that information in your systems folder.

Question 32

What is the procedure for resolving post-production claims of privilege or protected trial preparation materials [ Fed. R. Civ. P. 26(b) (5) (B)]?

Question 33

What is the procedure for challenging interrogatories that do not comply with the rules of civil procedure?

Question 34

What should you do on receipt of the opponent's answers to a set of interrogatories?

Question 35

If your state does not have disclosure, under what circumstances are the facts known and opinions held by experts discoverable?

Question 36

What are two major limits to the scope of discovery?

Question 37

Is the fact that a party's investigation is incomplete or the other party has failed to disclose as required a legitimate excuse to withhold disclosure under the rule?

Question 38

What are the specific limits on discovery?

Question 39

Find examples that may be helpful in preparing interrogatories in the Case V, the Rakowski discrimination case. Draft five interrogatories on behalf of Darlene Rokowski to be served on Montez Construction Co.

Question 40

Discovery can lead to an early settlement.

Question 41

Confidential information from the client must be revealed if it is requested through discovery.

Question 42

Federal Rule 33 covers

A) disclosure.
B) privileged communication.
C) paralegal ethics in discovery.
D) interrogatories.

Question 43

Information requested in interrogatories must be admissible.

Question 44

Discovery of computerized information requires no more than basic word processing skills.

Question 45

The federal court may limit the volume of discovery devices if the

A) discovery requested is annoying to the opponent.
B) discovery requested is too expensive for the opponent's resources.
C) information requested is privileged.
D) parties are late in responding.

Question 46

Updating discovery information is not necessary unless it is requested by the other side.

Question 47

Federal Rule 26(b)(5) requires a party withholding privileged information to

A) provide identification of that information to the opposing party.
B) be penalized.
C) file an affidavit with the court.
D) reveal the information 30 days before trial.

Question 48

A U.S. Supreme Court decision has facilitated discovery in international cases.

Question 49

In e-discovery, a refusal to produce requested e-information is most likely to apply to

A) inexpensive production.
B) backup tapes and fragmented data.
C) business records.
D) current e-mails.

Question 50

Mandatory disclosure does not include

A) initial disclosure.
B) disclosure of information on expert testimony.
C) pretrial disclosure.
D) disclosure of trial preparation materials.

Question 51

Under Federal Rule 26(f), attorneys must meet to plan disclosure and discovery.

Question 52

The primary purpose of the preservation letter is to facilitate the return of privileged information.

Question 53

Valid objections to interrogatories include which of the following?

A) The information sought is a factual conclusion.
B) The information sought is already known by opponent.
C) Question seeks admission.
D) Question is too broad.

Question 54

Not all courts require that interrogatories be filed.

Question 55

Alerting the opposing party to how easily e-information can be destroyed and facilitating the early prevention of loss of e-information is the aim of

A) mandatory disclosure.
B) interrogatory practice.
C) the preservation letter.
D) the client communication ethics standard 1.4.

Question 56

In answering interrogatories, always

A) save time by allowing the other party to search your client's records.
B) object in general to general questions.
C) avoid distortion or misrepresentation.
D) leave blank any questions you are unsure of.

Question 57

Mandatory disclosure replaces document production in discovery.

Question 58

Information is discoverable unless it

A) is relevant.
B) will lead to admissible evidence.
C) is privileged.
D) all of the above.

Question 59

Insurance agreements likely to cover damages are revealed through discovery.

Question 60

Interrogatories incorporate all of the following components except

A) wherefore clause.
B) definitions and abbreviations.
C) summary interrogatories.
D) introductory paragraphs.

Question 61

Initial disclosure eliminates the need for

A) depositions.
B) summons and complaint.
C) early interrogatories.
D) requests for admissions.

Question 62

What are the advantages of interrogatories?

Question 63

Interrogatories should be answered

A) orally, if stipulated by all parties.
B) under oath.
C) without objection.
D) without revealing the true answer.
E) all of the above.

Question 64

In order for an item to be discoverable it must be relevant and

A) answer questions of law.
B) appear that it will lead to admissible evidence.
C) privileged.
D) authenticated.

Question 65

When produced information is found to contain privileged material, the federal rules

A) allow the receiving party to use the information.
B) allow the receiving party to inform the client but no one else.
C) require the producing party to notify the other party thirty days prior to trial.
D) require the producing party to notify the other party promptly.

Question 66

How can your understanding of the elements of the case help you in drafting interrogatories?

Question 67

Once the recipient party is notified that the opponent has produced privileged information, what are the recipient party's options under Rule 26(b)(5)?

Question 68

Mandatory disclosure is governed by

A) Federal Rule 33.
B) Federal Rule 26(a).
C) Federal Rule 18(c).
D) most state rules.

Question 69

Mandatory disclosure includes

A) only documents.
B) attorney work product.
C) information to support a defense.
D) all information connected to the case.

Question 70

Unless directed otherwise by the court, initial disclosure takes place

A) within fourteen days of the planning meeting.
B) before the scheduling conference.
C) when each party completes its investigation.
D) after a motion to disclose has been filed.

Question 71

Pretrial disclosure must be made

A) in response to a motion for disclosure.
B) at least thirty days before trial.
C) in the presence of a judge.
D) before depositions are taken.

Question 72

The preservation letter should be

A) sent by e-mail.
B) sent by certified mail.
C) sent after the parties' planning meeting.
D) accompanied by a subpoena.

Question 73

Disclosure of information on expert testimony

A) includes a statement of general viewpoints.
B) can be directed by the court or by stipulation between parties.
C) cannot reveal the amount of compensation for the testimony.
D) is a simple matter.

Question 74

You need to find out if the defendant's automobile had defects in the steering column, brakes, exhaust, or electrical circuits during the year of the accident and also during the preceding year. Write one simple interrogatory question to elicit these multiple answers.

Question 75

Why is it important to word interrogatories carefully?

Question 76

Information exchanged in disclosure could include

A) the names of attorneys for the defense.
B) a letter from the defendant to her attorney.
C) a written statement of expert witness opinion.
D) a copy of all the defendant's business records.

Question 77

When interrogatory answers are returned that need clarification, what are the options?

Question 78

A purpose of the preservation letter is to

A) prevent the loss of e-information.
B) facilitate the return of privileged information.
C) aid the court in determining what is discoverable.
D) preserve the use of interrogatories in e-discovery.

Question 79

Why is it a good idea to copy interrogatories submitted to you?

Question 80

List the seven discovery devices from Federal Rule 26.