- The bank files a motion to quash the subpoena. How is the court most likely to rule? Select one.
Answer: Grant the motion, because the request imposes an undue burden on a non-party and seeks information that is not proportional to the needs of the case.
When you encounter questions about discovery involving non-parties, focus on the heightened protections federal courts provide to entities not involved in the litigation. Under Federal Rule of Civil Procedure 45, subpoenas to non-parties face stricter scrutiny than discovery requests between parties.
The court will likely grant the motion because this subpoena violates two key principles. First, requesting ten years of banking records for a $25,000 deck dispute creates a disproportionate burden—the scope far exceeds what's necessary for the case. Second, forcing a non-party to incur $5,000 in costs (20% of the total damages claimed) constitutes an undue burden under Rule 45(d)(3)(A).
Let's examine why the other options fail: Answer A incorrectly assumes non-parties receive the same treatment as parties in discovery. This is wrong—Rule 45 specifically provides stronger protections for non-parties than Rule 26 provides for parties. Answer B suggests the court could salvage the subpoena by shifting costs, but this ignores the fundamental proportionality problem; even if costs were covered, ten years of records remains excessive. Answer C misstates the law by claiming financial records can only be obtained from parties directly. While parties' records are often sought from the parties themselves, third-party subpoenas for financial records are permissible when properly limited in scope.
Remember this pattern: when evaluating non-party subpoenas, courts balance the requesting party's legitimate discovery needs against the burden imposed on the uninvolved third party. Broad, expensive requests involving non-parties face heavy scrutiny under proportionality standards.
- The trucking company has asserted that the interview summaries are protected from discovery by the work-product doctrine. What would be the plaintiff's best argument to overcome this assertion and compel production? Select one.
Answer: The dispatchers are no longer employed by the company and cannot be located, and their accounts are essential to the plaintiff's case.
The correct answer is C. The interview summaries are classic work product, as they were prepared in anticipation of litigation. However, this is ordinary (or fact) work product, not opinion work product. It is discoverable if the requesting party shows a substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. C provides the classic example of this exception: the witnesses are now unavailable, making it impossible for the plaintiff to get the information by other means (like a deposition), thus creating substantial need and undue hardship. A is incorrect because the work-product doctrine protects materials prepared in anticipation of litigation by a party or its representative, which includes investigators, consultants, and insurers. B is incorrect because while facts themselves are discoverable, documents containing those facts prepared for litigation are protected. D states the standard for relevance, but relevance alone is not enough to overcome the work-product protection; the plaintiff must also show substantial need and undue hardship.
- Which discovery rule did the plaintiff's attorney most clearly violate? Select one.
Answer: Rule 26(e), by failing to supplement a prior discovery response that was later learned to be materially incomplete or incorrect.
The correct answer is B. FRCP 26(e) imposes a duty on parties to supplement their discovery responses in a timely manner if they learn that the original response is in some material respect incomplete or incorrect, and if the other parties have not otherwise been made aware of the new information. Here, the initial answer was materially incorrect, and the plaintiff (and her attorney) had a duty to correct it upon realizing the error. A is incorrect because Rule 11 applies to pleadings, written motions, and other papers filed with the court, not to discovery responses (which are governed by Rule 26(g)). C relates to the formal requirements of answering interrogatories, and there is no information that the response was unsigned. D is incorrect because there is no indication that there was a court order compelling discovery that was violated.
- The restaurant objects, claiming the report is protected by the work-product doctrine. Is the patron likely to succeed in a motion to compel production of the report? Select one.
Answer: No, because the report was prepared by a party's representative in anticipation of litigation.
When you encounter questions about discovery disputes involving investigative reports, focus on the work-product doctrine, which protects materials prepared in anticipation of litigation from discovery.
The work-product doctrine applies when three elements are met: (1) the materials were prepared by or for a party or their representative, (2) in anticipation of litigation, and (3) for the purpose of litigation preparation. Here, the insurance adjuster clearly acts as the restaurant's representative, the report was created immediately after the incident with litigation in mind, and its sole purpose was evaluating the claim and preparing for potential lawsuit. This qualifies for work-product protection.
Looking at the wrong answers: Answer B is incorrect because the timing of when a lawsuit is formally filed doesn't determine work-product protection—what matters is whether litigation was anticipated when the materials were prepared. Answer C misunderstands the doctrine's scope; work-product protection extends beyond attorney-prepared materials to include documents prepared by any party representative in anticipation of litigation, including insurance adjusters. Answer D confuses work-product doctrine with the qualified protection standard—while some work-product can be discovered if the requesting party shows substantial need and undue hardship in obtaining equivalent materials, this higher standard typically applies to non-opinion work product, and the question asks about the general rule.
Answer A correctly states the fundamental rule: materials prepared by a party's representative in anticipation of litigation receive work-product protection.
Remember that work-product protection doesn't require an attorney's involvement—it covers any litigation preparation materials created by or for a party, including insurance investigations conducted in anticipation of potential lawsuits.
- What is the most appropriate action for you to take immediately following the opposing counsel's last question? Select one.
Answer: Object to the question, and instruct the client not to answer on the basis of attorney-client privilege.
The correct answer is B. The question asks for the specific content of a communication between the client and their attorney made for the purpose of seeking legal advice. This is the core of the attorney-client privilege. Under FRCP 30(c)(2), an attorney may instruct a deponent not to answer a question only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to terminate the deposition for bad faith. Asserting the attorney-client privilege is one of the explicit grounds for instructing a witness not to answer. A is incorrect because the question asks for the communication itself, not just the underlying facts. C is incorrect because relevance is not a proper basis for instructing a witness not to answer; the witness must answer pending a ruling. D is inappropriate because the question is clearly improper, and the correct response is to assert the privilege on the record and instruct the client not to answer.
- How is the court most likely to rule on the motion to compel a mental examination? Select one.
Answer: Deny the motion, because a routine claim for 'garden-variety' emotional distress does not place the plaintiff's mental condition in controversy.
The correct answer is C. Under FRCP 35, a court may order a party to submit to a physical or mental examination only when that party's condition is "in controversy" and for "good cause." Courts have generally held that a claim for routine or "garden-variety" emotional distress damages incidental to a physical injury does not place the plaintiff's specific mental condition in controversy. To do so, the plaintiff would typically need to allege a specific psychiatric injury or disorder, or intend to use expert psychiatric testimony to support the claim. A is incorrect because it overstates the effect of a routine emotional distress claim. B is too broad; discovery rights are not unlimited. D is incorrect as it states a rule that is too narrow; a mental condition can be in controversy in other types of cases, but it is not in controversy here.
- The landlord's attorney objects to the deposition, arguing that the former manager is no longer an employee and his testimony cannot be imputed to the landlord. Is the former manager's testimony within the scope of discovery? Select one.
Answer: Yes, because parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense, including from non-parties.
The correct answer is C. The scope of discovery under FRCP 26(b)(1) is very broad, covering any nonprivileged matter relevant to a claim or defense. A party can seek information from anyone with relevant knowledge, not just from the opposing party or its current employees. The former manager is a non-party witness with potentially relevant information. The proper way to obtain his testimony is to serve him with a subpoena for a deposition under FRCP 45. A is incorrect because it describes the standard for who can be deposed as a corporate representative under Rule 30(b)(6), but it does not limit a party's ability to depose any individual with personal knowledge. B is incorrect because discoverability is not dependent on admissibility. D describes a procedural step (a 30(b)(6) deposition) but does not limit the right to depose a fact witness directly.
- The store objects to the interrogatory, arguing that the information is confidential and not relevant. You file a motion to compel. How is the court most likely to rule? Select one.
Answer: Deny the motion, because the burden of producing confidential financial data outweighs its likely benefit in a simple negligence case.
The correct answer is C. Under FRCP 26(b)(1), discovery must be proportional to the needs of the case. In a standard negligence case where punitive damages are not at issue, a party's general financial health is not relevant to the claims or defenses. The court will weigh the factors, including the amount in controversy ($50,000) and the issues at stake, and likely find that the request for five years of confidential financial data is not proportional because the burden and intrusive nature of the request outweigh its minimal (if any) relevance to the negligence claim. A is incorrect because ability to pay a judgment is not a basis for discovery of assets pre-judgment. B is incorrect because the facts describe a simple negligence case, for which punitive damages are typically not available, making the store's wealth irrelevant. D is incorrect as it states an overly broad rule; financial information can be discoverable pre-judgment if relevant (e.g., in a punitive damages case), though it is not relevant here.
- You are preparing to file a motion for a protective order. Which argument provides the strongest basis for the court to limit this discovery request? Select one.
Answer: The request is not proportional to the needs of the case because its burden and expense far outweigh its likely benefit.
The correct answer is D. This question directly tests the proportionality requirement of FRCP 26(b)(1). The rule requires that discovery be proportional, considering factors like the burden and expense versus the likely benefit. Here, a $2 million cost to review emails based on extremely broad and generic terms over a 15-year period is a classic example of a discovery request that is not proportional to the needs of the case, especially when weighed against its likely low benefit in identifying relevant information. A and C may be true for some of the documents, but those are grounds for redacting or withholding specific documents, not for quashing the entire request. D is the best argument for fundamentally limiting the scope of the search itself. B is a plausible argument, but some of the emails might be relevant; the stronger argument is that the method of searching for them is unduly burdensome and not proportional.
- The defense attorney moves for a protective order to prevent the depositions. What is the most likely outcome of the motion? Select one.
Answer: The motion will be granted for the specialist but denied for the local physician, because only testifying experts are typically subject to discovery.
The correct answer is C. The Federal Rules of Civil Procedure draw a sharp distinction between testifying experts and consulting experts. Under FRCP 26(b)(4)(B), a party may depose any person who has been identified as an expert whose opinions may be presented at trial (the local physician). Conversely, under FRCP 26(b)(4)(D), a party may not ordinarily discover facts known or opinions held by an expert retained in anticipation of litigation but who is not expected to be called as a witness (the specialist). Discovery from such a consulting expert is permitted only upon a showing of exceptional circumstances, which are not present here. A is incorrect because testifying experts are discoverable. B is incorrect because consulting experts are not generally discoverable. D reverses the correct rule.
- The defendant's attorney files an objection to the discovery requests. On what grounds is the objection most likely to be sustained? Select one.
Answer: The discovery requests are premature because they were served before the parties' Rule 26(f) conference.
Discovery timing under the Federal Rules of Civil Procedure follows a specific sequence designed to promote efficient case management. The key rule here is that parties must meet and confer about discovery before jumping into formal requests.
Under Rule 26(f), parties are required to hold a discovery conference within a reasonable time after the defendant is served, but no later than 21 days before a scheduling conference or scheduling order is due. During this conference, they discuss the nature of the case, settlement possibilities, and develop a proposed discovery plan. Only after this conference should formal discovery typically begin, unless the parties agree otherwise or seek early discovery under Rule 26(d).
Answer A is correct because the plaintiff served discovery requests on March 10 without any mention of the required Rule 26(f) conference taking place. This violates the standard discovery sequence and provides solid grounds for the defendant's objection.
Answer B is wrong because while scheduling orders are important, they're not a prerequisite for discovery to begin—the Rule 26(f) conference is the key trigger. Answer C incorrectly suggests that an answer must be filed first; defendants can actually engage in discovery before answering, and the answer deadline doesn't control discovery timing. Answer D creates a fictional 90-day rule that doesn't exist in the Federal Rules.
When you see discovery timing questions on the bar exam, always think "Rule 26(f) conference first" as your starting point. The meet-and-confer requirement is designed to streamline discovery and avoid exactly this type of premature, potentially burdensome discovery fishing expedition.
- The employer objects, arguing that the existence and contents of an insurance policy are not relevant to the issues of liability or the extent of the pedestrian's damages. Is the pedestrian's attorney entitled to a copy of the insurance policy at this stage? Select one.
Answer: Yes, because the existence and contents of an insurance agreement are subject to initial disclosure and are discoverable.
When you encounter discovery questions involving insurance policies, remember that Federal Rule of Civil Procedure 26(a)(1)(A)(iv) specifically addresses insurance coverage as part of mandatory initial disclosures, and Rule 26(b)(2) makes such information discoverable.
The correct answer is D because insurance agreements occupy a special position in federal discovery rules. Unlike most discovery requests that must meet relevance standards tied to claims and defenses, insurance policies are explicitly subject to both initial disclosure requirements and broad discoverability. The employer must disclose any insurance policy that might cover the incident, regardless of whether insurance relates directly to liability or damages issues.
Choice A is wrong because it misapplies the general relevance standard. While insurance coverage typically isn't relevant to liability or damages, the rules create a specific exception for insurance discovery. Choice B incorrectly suggests that insurance information is only discoverable when ability to pay is disputed. The rules don't require such a showing—insurance policies are discoverable as a matter of course. Choice C applies the wrong standard by invoking proportionality analysis. While proportionality governs most discovery disputes, insurance policies fall under the automatic disclosure and discoverability provisions that don't require this balancing test.
The timing detail—"early in the litigation, before any depositions"—reinforces that insurance disclosure happens automatically in the initial phase, not through contested discovery motions.
Study tip: Remember that insurance policies are always discoverable in federal court, regardless of relevance to the merits. This is one of the few bright-line discovery rules that bypasses normal relevance analysis.
- You are preparing a motion to compel a response to the interrogatory. What is your strongest legal argument in support of the motion? Select one.
Answer: The identity of the decision-makers is directly relevant to the central claim of discrimination and is proportional to the needs of the case.
The correct answer is B. The core standard for discoverability under FRCP 26(b)(1) is relevance to a claim or defense and proportionality. In an age discrimination case, the identity of the people who made the termination decision is not just relevant, it is essential. This information is needed to know who to depose, what their motivations might have been, and whether there was a pattern of discriminatory animus. This argument directly addresses the scope-of-discovery standard and refutes the defendant's boilerplate objection. A is true but less persuasive; merely not being privileged isn't enough to compel discovery. C is a good argument but is more about the 'burden' aspect than the 'scope' aspect, which is the primary issue. D alleges bad faith, which may be true, but it is an assertion about the defendant's motive rather than a legal argument based on the discovery standards. B is the most direct and powerful legal argument.
- Is the defendant required to respond to this request? Select one.
Answer: Yes, because a Request for Admission may properly ask a party to apply law to the facts of the case.
Requests for Admission are discovery tools that allow parties to seek admissions about facts, the application of law to facts, or the genuineness of documents. The key distinction is between pure conclusions of law (which are improper) and the application of law to specific facts (which is proper).
The correct answer is A because this request asks the defendant to apply the legal concept of fiduciary duty to the specific facts of their business relationship with the plaintiff. While "fiduciary duty" is a legal concept, the request isn't asking for an abstract legal definition—it's asking whether that duty was breached in this particular situation based on the defendant's conduct. This represents the application of law to facts, which is permissible under Federal Rule of Civil Procedure 36.
Answer B is incorrect because requests for admission can address ultimate issues in the case. There's no prohibition against seeking admissions on matters that might ultimately be decided by a jury. Answer C mischaracterizes the nature of the request—this isn't asking for a pure conclusion of law (like "define fiduciary duty") but rather asking the defendant to apply legal standards to their specific conduct. Answer D is wrong because relevance alone doesn't determine whether a party must respond; the request must also be proper in form and substance under the rules.
When you encounter Requests for Admission questions, focus on whether the request seeks: (1) factual admissions, (2) application of law to facts, or (3) pure legal conclusions. Only the third category is improper—courts want parties to take positions on how legal standards apply to their specific situations.
- The plaintiff has filed a motion to compel production of the memorandum. How should the court rule on the plaintiff's motion? Select one.
Answer: Deny the motion, because the memorandum contains the mental impressions and legal theories of an attorney and is therefore protected.
The correct answer is C. The memorandum contains the attorney's mental impressions, conclusions, opinions, and legal theories. This is known as opinion work product, which receives nearly absolute protection from discovery under FRCP 26(b)(3). Courts are extremely reluctant to order its disclosure. A is incorrect because the work-product doctrine applies equally to in-house and outside counsel. B describes the standard for overcoming protection for ordinary (fact) work product, not the much higher standard for opinion work product. D is also correct in that the attorney-client privilege likely applies as well, but C is the better answer because the work-product doctrine specifically protects materials prepared for litigation, and its near-absolute protection for 'opinion' work product is the most direct and powerful shield against discovery of this specific document.
- The plaintiff has filed a motion to compel. What is the most likely action the court will take? Select one.
Answer: Order the defendant to produce the formula, but first enter a protective order restricting its use and disclosure to the litigation.
The correct answer is C. Trade secrets do not have an absolute privilege from discovery. When they are relevant and necessary, a court can order their disclosure. However, under FRCP 26(c), a court may, for good cause, issue a protective order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. This includes protecting confidential commercial information or trade secrets. The standard procedure in such a case is for the court to order production but subject to a strict protective order that limits who can see the information (e.g., only attorneys and experts) and how it can be used (e.g., only for the current litigation). A is incorrect because there is no absolute trade secret privilege. B is incorrect because courts are required to balance the need for discovery with the harm of disclosure. D is a possible solution but less common than a protective order, which is the standard tool for this situation.
- The engineer objects, arguing the request is an unwarranted invasion of his privacy. How is the court most likely to handle the company's request? Select one.
Answer: Grant the request, but only after establishing a strict protocol to govern the search, including specific search terms and a method for filtering out personal data.
When you encounter discovery disputes involving personal electronic devices, courts must balance the legitimate need for evidence against privacy rights. This requires a careful, proportionate approach rather than an all-or-nothing decision.
The correct answer is A because courts typically grant such requests but impose strict safeguards to protect privacy. When there's a reasonable basis to believe relevant evidence exists on personal devices (here, the engineer allegedly downloaded files to a USB drive), courts will allow forensic imaging but require detailed protocols. These include using specific search terms related only to the alleged trade secrets, employing neutral computer experts, creating privilege logs, and filtering out irrelevant personal data before attorneys review anything.
Answer B is wrong because courts never grant unconditional access to personal devices. Even compelling business interests don't override privacy protections entirely—the law requires the least intrusive means necessary.
Answer C incorrectly states that discovery can't reach personal property. Discovery absolutely extends to personal devices when they potentially contain relevant evidence, regardless of whether they're personal or business property. The key is relevance, not ownership.
Answer D is wrong because courts rarely rely on self-production when dealing with alleged misconduct. Requiring the potentially wrongdoing party to search their own devices for incriminating evidence creates obvious problems with completeness and credibility. Forensic imaging provides better assurance that relevant evidence won't be overlooked or destroyed.
Study tip: In discovery disputes involving technology and privacy, look for the middle-ground answer that balances competing interests through procedural safeguards rather than absolute grants or denials.
- The corporation's attorney objects to the question on the basis of attorney-client privilege. Is the objection likely to be sustained? Select one.
Answer: Yes, because the communication was made to corporate counsel for the purpose of providing legal advice to the corporation.
The correct answer is C. Under the Supreme Court's holding in Upjohn v. United States, the attorney-client privilege in the corporate context is not limited to high-level executives (the 'control group'). It can extend to communications between corporate counsel and lower-level employees if the communications were made for the purpose of enabling the attorney to provide legal advice to the corporation. Here, the interview was part of an internal investigation by the general counsel, meeting this test. Therefore, the communication itself is privileged. A is incorrect because it applies the outdated and rejected 'control group' test. B is incorrect because the question is not asking about the underlying facts ('What did you see?'), but about the specific content of a communication with counsel ('What did you tell counsel?'). D is an incorrect statement of agency and evidence law and is not the basis for the privilege.
- The pilot has filed a motion to compel production of the text messages. What is the most likely outcome? Select one.
Answer: The motion will be granted, because the messages are discoverable if they are relevant and within the party's possession, custody, or control.
The correct answer is C. The standard for producing documents, including electronically stored information (ESI) like text messages, is whether they are within the party's "possession, custody, or control." Courts have consistently held that documents are within a party's control if the party has the legal right to obtain them. An employer generally has the right to obtain business-related communications from its employees, even if they are on personal devices. Since the text messages are between two managers discussing a company decision (the termination), they are relevant and within the airline's control. A is incorrect because 'control' is a broader concept than physical possession. B is incorrect because any privacy interest is outweighed by the need for relevant discovery in litigation, especially for business-related communications. D states a prerequisite that is already established by the facts; the managers were using their phones for business.
- The hotel objects, arguing that evidence of the cable replacement is a subsequent remedial measure inadmissible under Federal Rule of Evidence 407 to prove negligence. Is the guest entitled to discover these documents? Select one.
Answer: Yes, because information need not be admissible in evidence to be discoverable, as long as it is relevant to a claim or defense and proportional.
The correct answer is D. FRCP 26(b)(1) explicitly states that "Information within this scope of discovery need not be admissible in evidence to be discoverable." The key question is whether the information is relevant to a claim or defense and proportional. The repair documents are clearly relevant to the condition of the elevator and the hotel's maintenance practices, which are central to the negligence claim. While FRE 407 might bar admission of this evidence at trial to prove negligence, it is still discoverable. A is incorrect because it conflates discoverability with admissibility. B and C are incorrect because they focus on specific exceptions to FRE 407's rule of inadmissibility. While the information might be admissible for those purposes, its discoverability is based on the broader standard of relevance, not on whether an admissibility exception applies.
