Disclosures and discovery - Next Generation Bar Exam

1. What must a party provide in its Rule 26(a)(1) initial disclosures?

   Its likely witnesses, documents it may use, a computation of damages, and any applicable insurance agreements. Disclosures cover information the disclosing party may use to support its claims or defenses, not impeachment material.

2. What must a retained testifying expert's written report contain?

   The opinions and their bases, facts considered, exhibits, qualifications, prior testimony, and compensation. The report must be prepared and signed by the witness.

3. What is the effect of failing to respond to a Rule 36 request for admission within 30 days?

   The matter is deemed admitted. The court may permit withdrawal or amendment of the admission if doing so promotes the merits and causes no prejudice.

4. A party serves 30 interrogatories on another party without leave of court or a stipulation. What objection is proper?

   That the interrogatories exceed the limit of 25. A party must seek leave or a stipulation to serve more than 25 interrogatories.

5. When may a party discover the facts known or opinions held by an opponent's non-testifying consulting expert?

   Only on a showing of exceptional circumstances. Consulting experts are protected to encourage candid pretrial advice.

6. Absent leave or stipulation, what limits apply to depositions under the Federal Rules?

   Ten depositions per side, each limited to one day of seven hours. A second deposition of the same person also requires leave or stipulation.

7. What must a party show to obtain a court-ordered physical or mental examination of another party under Rule 35?

   That the condition is in controversy and good cause exists. A Rule 35 examination requires a court order, not merely a discovery request.

8. Absent a stipulation or court order, when must expert disclosures be made?

   At least 90 days before the trial date. Rebuttal expert disclosures are due within 30 days after the other party's disclosure.

9. When must initial disclosures ordinarily be made?

   Within 14 days after the parties' Rule 26(f) conference. The parties may stipulate to, or the court may order, a different time.

10. What is the scope of discovery under Rule 26(b)(1)?

    Nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. Information need not be admissible in evidence to be discoverable.

11. What must a party do when it withholds otherwise discoverable information as privileged?

    Expressly claim the privilege and describe the withheld items so others can assess the claim. This description is usually provided in a privilege log.

12. What is the consequence under Rule 37(c)(1) of failing to disclose a witness as required by Rule 26?

    The party may not use the witness at trial unless the failure was substantially justified or harmless. The court may also impose other sanctions in addition to or instead of exclusion.

13. Absent leave or stipulation, how many interrogatories may a party serve on another party?

    Up to 25, including discrete subparts. Interrogatories may be served only on parties, not on nonparties.

14. When may a party obtain discovery of an opponent's ordinary work product?

    When it shows substantial need and cannot obtain the substantial equivalent without undue hardship. Mental impressions, conclusions, opinions, and legal theories of counsel remain protected even on that showing.

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