- In drafting your objection, which revision to the plaintiff's request would you propose in your response as a reasonable alternative?
Answer: An offer to produce marketing documents that feature the specific product line and logo alleged to be infringing, for the period beginning two years before the alleged infringement began.
Objecting to a request as overly broad is proper, but to be constructive and comply with the spirit of cooperation in discovery, it is often wise to propose a reasonable limitation. Choice B is an excellent example of this. It properly narrows the request by time and subject matter to the actual dispute, making it relevant and proportional. Choice A is uncooperative. Choice C is likely insufficient. Choice D, while an option under the rules, is still overly broad and shifts the burden unfairly without first narrowing the scope.
- To succeed, the defendant's motion must be accompanied by a draft order and must demonstrate which two essential elements required by FRCP 35?
Answer: That the plaintiff's physical condition is in controversy and that there is good cause for the examination.
When you encounter questions about court-ordered physical examinations, focus on Federal Rule of Civil Procedure 35, which governs when a defendant can compel a plaintiff to undergo medical examination by a doctor of the defendant's choosing.
FRCP 35 establishes two mandatory requirements that defendants must satisfy in their motion. First, the plaintiff's physical condition must be "in controversy" - meaning the physical condition is genuinely disputed and central to the case. In personal injury lawsuits where the plaintiff claims severe back injury, this element is typically satisfied since the extent and nature of injuries directly impact damages. Second, the defendant must show "good cause" for the examination, demonstrating that the examination is necessary and reasonable under the circumstances.
Option A is incorrect because permanency of injury and board certification, while potentially relevant factors, are not the two essential FRCP 35 requirements. Option B fails because "reasonable suspicion of fraud" isn't a Rule 35 standard - the rule uses "good cause" instead, and proper service is a procedural requirement, not a substantive element for granting the motion. Option C misses the mark entirely, as availability of other medical records and pain levels during examination aren't the core Rule 35 elements.
Remember this formula: FRCP 35 = Controversy + Cause. When you see physical examination questions on the bar exam, immediately think "Is the physical condition disputed?" and "Is there good cause for this specific examination?" These two elements form the foundation of any successful Rule 35 motion.
- In addition to objecting to the request on the grounds of privilege, what must your discovery response include to comply with the Federal Rules of Civil Procedure?
Answer: A description of the nature of the documents withheld, sufficient to enable the plaintiff to assess the claim of privilege, commonly known as a privilege log.
Under FRCP 26(b)(5)(A), when a party withholds information otherwise discoverable by claiming that it is privileged, the party must expressly make the claim and describe the nature of the documents, communications, or tangible things not produced in a manner that will enable other parties to assess the claim. This is accomplished by providing a privilege log. While a motion for a protective order (A) or an affidavit (C) might become necessary later, the initial required step is the privilege log. Producing a redacted version (D) is one option, but the rules first require describing what is being withheld on a privilege log.
- Which of the following is the best-drafted contention interrogatory for this purpose?
Answer: State every fact, identify every witness, and identify every document that supports your denial of paragraph 15 of the complaint.
Contention interrogatories are a powerful discovery tool that force the opposing party to reveal the factual basis for their positions in the case. When you're trying to pin down what facts support an opponent's denial of your allegations, you need an interrogatory that demands comprehensive disclosure of their evidence.
Answer D is correct because it properly requests three essential categories of information: facts, witnesses, and documents. This comprehensive approach forces the defendant to reveal the complete foundation for their denial. The phrase "every fact" ensures nothing is left out, while requiring identification of "every witness" and "every document" gives you concrete leads for further discovery. This interrogatory will either reveal weaknesses in their position or provide you with a roadmap of their defense strategy.
Answer A fails because "why" questions are improper in interrogatories—they call for legal conclusions and argument rather than factual information. Answer B is flawed because it's essentially asking the defendant to restate what they've already said in their answer, plus it uses "explain why," which again seeks legal reasoning rather than facts. Answer C is completely improper because it's not even an interrogatory—it's a request for admission disguised as an interrogatory, and it improperly characterizes the opponent's mental state as "bad faith."
When drafting contention interrogatories, remember the three pillars: facts, witnesses, and documents. Always ask for all three categories to get the complete picture of your opponent's position. This approach maximizes the discovery value and prevents the opposing party from hiding behind vague denials.
- Which discovery tool should you draft and serve to most effectively and efficiently obtain this compiled data?
Answer: A set of interrogatories directed to the corporation.
Interrogatories are often the best tool for obtaining objective, compiled data from an organization. Under FRCP 33, the responding party has a duty to make a reasonable inquiry and provide information that is within its possession, custody, or control, which includes compiling data from its records. A 30(b)(6) deposition (B) can be useful, but it is less efficient for purely data-driven questions. An RFA (C) is used to establish undisputed facts, not to gather raw data. A subpoena (D) is for non-parties.
- Which document should you draft and serve on the former auditor to obtain these documents?
Answer: A subpoena duces tecum under FRCP 45, directing the former auditor to produce the specified documents.
Under FRCP 45, a subpoena is the proper tool to compel a non-party to produce documents. A subpoena duces tecum specifically commands the person to produce designated documents, ESI, or tangible things. Interrogatories (B) and Requests for Production (A) can only be served on parties to the lawsuit. A notice of deposition (D) does not automatically include a demand for documents; a subpoena duces tecum must be served along with the notice if documents are sought from a non-party deponent.
