Bar Exam (Uniform) Quiz: Discovery Disputes

20 questions · exam conditions

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Discovery DisputesQuestion 1 of 20

Your client, a plaintiff in a breach of contract case, sued a defendant for failing to pay for custom-made widgets. The defendant's main defense is that the widgets were defective. You served a request for inspection on the defendant, seeking to have your engineering expert inspect the widgets at the defendant's warehouse. The defendant objected, stating that the widgets are now part of a larger machine assembly and that allowing an inspection would require them to shut down their production line for a full day, causing significant financial loss.

What is your best response to the defendant's objection? Select one.

File a motion for sanctions, as the defendant is obstructing discovery by integrating the evidence into its machinery.

File a motion to compel, arguing that the inspection is essential to your case and offering to compensate the defendant for the reasonable costs of the production shutdown.

Serve a new request for production demanding that the defendant disassemble the machinery and produce the widgets at your office.

Withdraw the request and proceed to trial, where you will ask for a jury instruction that the widgets should be presumed to be non-defective.

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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Discovery Disputes

Practice Discovery Disputes in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Discovery Disputes, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

What is your best response to the defendant's objection? Select one.

File a motion for sanctions, as the defendant is obstructing discovery by integrating the evidence into its machinery.
File a motion to compel, arguing that the inspection is essential to your case and offering to compensate the defendant for the reasonable costs of the production shutdown. (correct answer)
Serve a new request for production demanding that the defendant disassemble the machinery and produce the widgets at your office.
Withdraw the request and proceed to trial, where you will ask for a jury instruction that the widgets should be presumed to be non-defective.

Explanation: The correct answer is (B). The widgets are clearly relevant and subject to inspection under FRCP 34. The defendant's objection is based on undue burden and expense. A constructive approach to resolve this discovery dispute is to acknowledge the burden but demonstrate the necessity of the inspection for your case. By offering to pay the reasonable costs associated with the shutdown, you address the defendant's main concern and show the court you are attempting to balance your discovery needs with the burden on the opposing party. This strengthens your position on a motion to compel. (A) is premature and aggressive; there's no evidence the defendant integrated the widgets in bad faith. (C) is unreasonable and likely to be denied; it shifts the entire burden and cost of disassembly onto the defendant. (D) is a last resort. Asking for an adverse inference instruction (spoliation) is only appropriate if the defendant has destroyed or altered evidence in bad faith, which is not established here.

Question 2

You are representing a plaintiff who was injured when her new lawnmower malfunctioned. You have sued the manufacturer. During discovery, you learn that after your client's accident, the manufacturer redesigned the lawnmower's safety guard. You serve a request for production seeking all documents related to the redesign of the safety guard. The manufacturer objects, arguing that evidence of subsequent remedial measures is inadmissible under Federal Rule of Evidence 407 and therefore not discoverable.

Is the manufacturer's objection likely to be sustained? Select one.

Yes, because evidence that is inadmissible at trial is not subject to discovery.
Yes, because allowing discovery of subsequent remedial measures would discourage companies from making safety improvements.
No, because the scope of discovery is broader than admissibility, and the information is relevant to issues such as feasibility of a safer design. (correct answer)
No, because the manufacturer has waived the protection of Rule 407 by putting the safety of its product at issue.

Explanation: The correct answer is (C). The scope of discovery under FRCP 26(b)(1) is not limited to admissible evidence. Information is discoverable if it is relevant to any party's claim or defense and proportional to the needs of the case. Evidence of a subsequent remedial measure, while often inadmissible to prove negligence, may be admissible for other purposes, such as proving ownership, control, or the feasibility of precautionary measures, if controverted. Therefore, information about the redesign is relevant and discoverable, even if its ultimate admissibility at trial is limited. (A) is a common misconception; discoverability is much broader than admissibility. (B) states the public policy rationale behind FRE 407, but this policy does not create a discovery privilege. (D) misstates the law; defending a product's safety does not automatically waive the protections of FRE 407.

Question 3

A plaintiff sued her former employer for wrongful termination. The plaintiff's attorney hired a private investigator to interview non-party former employees of the company who may have witnessed discriminatory behavior. The investigator prepared detailed memoranda of these interviews. The employer's counsel served a request for production seeking all notes and memoranda from the investigator's interviews. The plaintiff's attorney objected, asserting the work product doctrine.

How should the court rule on a motion to compel production of the investigator's memoranda? Select one.

Grant the motion, because the memoranda were prepared by a non-attorney investigator, so they are not protected work product.
Grant the motion, because the memoranda contain statements from potential fact witnesses that are relevant and necessary for the employer to prepare its defense.
Deny the motion, because the memoranda were prepared in anticipation of litigation by a representative of the plaintiff. (correct answer)
Deny the motion, because the memoranda are protected by the attorney-client privilege as communications from an agent of the attorney.

Explanation: The correct answer is (C). The work product doctrine, under FRCP 26(b)(3), protects documents and tangible things prepared in anticipation of litigation by or for another party or its representative. A private investigator hired by an attorney is considered a representative of the party. Therefore, the memoranda are protected as work product. (A) is incorrect for this reason. The protection extends to materials created by agents of the attorney. (B) misstates the standard for overcoming work product protection. The employer would need to show a substantial need for the memoranda and that it cannot obtain the substantial equivalent of the information without undue hardship (e.g., by deposing the same witnesses). Relevance alone is insufficient. (D) is incorrect because the communications are not between the attorney and the client; they are between the attorney's agent and third-party witnesses. Thus, the attorney-client privilege does not apply.

Question 4

A plaintiff sued a defendant for injuries sustained in an automobile accident. The plaintiff alleges the defendant was texting while driving. The defendant denies this allegation. The plaintiff served a request for production on the defendant seeking his personal cell phone for inspection, so that the plaintiff's expert could create a forensic image of the device to search for text messages sent around the time of the accident. The defendant objects, claiming the request is an invasion of his privacy and is overly broad.

What must the plaintiff demonstrate to overcome the defendant's objection and compel the inspection? Select one.

That the defendant's cell phone is the only source of information regarding his texting at the time of the accident.
That the need for the information is proportional to the needs of the case and that the inspection can be limited in scope to protect the defendant's privacy. (correct answer)
That there is probable cause to believe the defendant committed a crime by texting while driving.
That the defendant has a history of distracted driving, creating a presumption that the information is relevant.

Explanation: The correct answer is (B). The central issue is balancing the plaintiff's need for relevant discovery against the defendant's privacy interests. Under FRCP 26(b)(1), discovery must be relevant and proportional. The court will weigh the plaintiff's need for the evidence against the burden and privacy intrusion on the defendant. To succeed, the plaintiff must show proportionality and will likely need to agree to a protective order or a specific protocol (e.g., using only specific search terms, limiting the time frame) to minimize the privacy invasion. (A) is too strong a standard; while being the only source strengthens the argument, it's not a strict requirement. The standard is about need and proportionality. (C) incorrectly imports a criminal law standard (probable cause) into a civil discovery dispute. (D) is irrelevant; the defendant's history might be character evidence and inadmissible, and it does not create a presumption that overcomes a privacy objection regarding this specific accident.

Question 5

In a federal lawsuit, the plaintiff's attorney and her client had a meeting to discuss the case. The attorney's paralegal was present at the meeting to take notes. The next day, the paralegal, at the attorney's direction, drafted a memorandum summarizing the client's account of the events and outlining the attorney's initial thoughts on legal strategy. The defendant served a request for production seeking this memorandum. The plaintiff objected, asserting attorney-client privilege.

Which of the following is the most accurate statement regarding the plaintiff's claim of attorney-client privilege over the memorandum? Select one.

The privilege applies because the paralegal was acting as an agent of the attorney to facilitate the provision of legal services. (correct answer)
The privilege does not apply because the presence of the paralegal at the client meeting destroyed confidentiality.
The privilege does not apply because the memorandum was drafted by a non-attorney paralegal.
The privilege applies to the client's statements but not to the attorney's thoughts on legal strategy, which are covered by the work product doctrine instead.

Explanation: Attorney-client privilege protects confidential communications between lawyers and clients made for the purpose of obtaining legal advice. A crucial aspect of this doctrine is that the privilege extends to third parties who assist the attorney in providing legal services, as long as their presence is necessary to facilitate the representation. Answer A is correct because the paralegal was acting as the attorney's agent to facilitate legal services. The paralegal's presence at the meeting to take notes and subsequent drafting of the memorandum at the attorney's direction were both integral parts of the legal representation. Courts consistently hold that attorney-client privilege covers communications made in the presence of necessary third parties, including paralegals, secretaries, and interpreters who assist in the provision of legal services. Answer B incorrectly suggests that a paralegal's presence destroys confidentiality. This reflects a fundamental misunderstanding of privilege law—the presence of agents helping to provide legal services does not waive the privilege. Answer C wrongly focuses on who drafted the document rather than its content and purpose. The privilege protects the underlying confidential communications regardless of whether an attorney or paralegal documented them. Answer D creates an artificial distinction that doesn't exist in privilege law. While work product doctrine does protect attorney mental impressions, those thoughts can also fall under attorney-client privilege when they're part of confidential communications with the client. Remember: Attorney-client privilege extends to necessary third parties who facilitate legal representation. Don't let the involvement of support staff like paralegals lead you to conclude that privilege is automatically waived.

Question 6

A plaintiff sued his employer for age discrimination. The plaintiff's counsel believes the employer has a pattern of terminating older workers and replacing them with younger ones. To support this theory, the plaintiff serves an interrogatory asking the employer to identify every employee over the age of 50 who was terminated in the last three years, along with their age at termination and the age of their replacement. The employer objects, arguing that compiling this information would require a manual review of hundreds of personnel files and would be unduly burdensome.

The employer's objection is most likely to be sustained if the employer also does which of the following? Select one.

Specifies that the records from which the answer may be derived are available and gives the plaintiff a reasonable opportunity to examine and audit them. (correct answer)
Files a motion for a protective order to shift the cost of compiling the information to the plaintiff.
Argues that the information is irrelevant because the circumstances of other employees' terminations have no bearing on the plaintiff's case.
Asserts that the personnel files contain confidential information protected by the privacy rights of the other employees.

Explanation: When facing discovery objections based on burden, you need to understand Federal Rule of Civil Procedure 33(d), which provides a specific alternative to directly answering burdensome interrogatories. This rule allows a responding party to avoid the burden of compilation while still providing access to the requested information. Answer choice A is correct because Rule 33(d) explicitly permits a party to respond to an interrogatory by specifying the records containing the answer and giving the requesting party reasonable opportunity to examine them. This is a complete defense to a burden objection—the employer can avoid manually reviewing hundreds of files by simply directing the plaintiff to examine the personnel records themselves. Choice B is wrong because you cannot shift discovery costs to the requesting party through a protective order unless there are extraordinary circumstances, which aren't present here. The burden alone doesn't justify cost-shifting. Choice C fails because the information is clearly relevant—evidence of a pattern of age discrimination directly supports the plaintiff's theory and is discoverable under the broad relevance standard of Rule 26(b)(1). Choice D is incorrect because privacy concerns don't automatically protect employment records in discrimination cases. Courts typically address privacy through protective orders limiting use and dissemination, not by blocking discovery entirely. Remember this pattern: when you see a discovery burden objection, look for Rule 33(d) as a solution. Rather than blocking discovery, courts prefer alternatives that balance the requesting party's need for information against the responding party's burden concerns.

Question 7

You represent a defendant in a complex commercial litigation case. The plaintiff noticed a 30(b)(6) deposition of your corporate client, listing ten topics for examination. Your client designates an employee who is well-prepared on eight of the topics. However, for the remaining two topics, which concern technical specifications from ten years ago, no current employee has personal knowledge. The information exists only in archived company documents.

What is your best course of action to respond to the two topics for which no employee has knowledge? Select one.

Object to the two topics as overly broad and unduly burdensome because no current employee has knowledge.
Allow the designated witness to be deposed and instruct her not to answer any questions on the two topics, stating a lack of personal knowledge.
Designate the archived documents themselves as the deponent for the two topics under FRCP 30(b)(6).
Prepare the designated witness to testify about the information contained in the archived documents, even though she lacks first-hand personal knowledge. (correct answer)

Explanation: The correct answer is (D). A corporation has an obligation under FRCP 30(b)(6) to produce a witness who can testify about information known or reasonably available to the organization. This duty includes educating the witness on matters they do not personally know by having them review documents, speak with former employees, or otherwise gather the reasonably available corporate knowledge. The witness's testimony is on behalf of the corporation, not based on personal knowledge. (A) is a weak objection because the corporation has a duty to prepare a witness. (B) is improper; instructing the witness not to answer is not allowed, and the witness's lack of personal knowledge is not the standard. (C) is incorrect; a party cannot designate documents as a deponent. The rule requires a person to be produced to give live testimony.

Question 8

You are defending a technology company in a patent infringement lawsuit. The plaintiff has served a request for production of all internal emails from the past five years that contain the keyword "Project X," which relates to the technology at issue. Your client informs you that this search will yield over two million emails, and the cost of collecting, processing, and reviewing this data for relevance and privilege would exceed $500,000. The plaintiff argues the emails are essential to proving willful infringement.

What is your strongest objection to this discovery request? Select one.

The request is not relevant because internal project names are not determinative of patent infringement.
The request seeks documents protected by the attorney-client privilege, as many of the emails likely involved in-house counsel.
The request is not proportional to the needs of the case, considering the expense of the discovery outweighs its likely benefit. (correct answer)
The request is procedurally improper because electronically stored information must be sought through a separate, specific request.

Explanation: The correct answer is (C). Under FRCP 26(b)(1), the scope of discovery is limited by proportionality. Courts must consider factors including the importance of the issues, the amount in controversy, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Arguing that a $500,000 discovery cost is disproportionate is a strong objection, especially in the context of ESI. (A) is a weak argument; emails about "Project X" are almost certainly relevant to a patent suit concerning that technology. (B) is a valid reason to withhold specific documents after they are reviewed, but it is not an objection to the entire request itself. The company would have to review the emails and produce a privilege log, which is part of the expense the company is trying to avoid. (D) is incorrect; FRCP 34 explicitly governs requests for production of electronically stored information, and there is no requirement for a separate type of request.

Question 9

In a commercial dispute, the defendant produced a privilege log that lists 30 withheld emails. For each email, the log provides the date, the author, the recipients, and the subject line. For the privilege asserted, every entry simply states, "Attorney-Client Privilege." The plaintiff believes this log is insufficient to assess the claims of privilege.

What is the plaintiff's best course of action to challenge the defendant's privilege claims? Select one.

Immediately file a motion for sanctions against the defendant for failing to produce the documents.
File a motion to compel the production of the documents, arguing that the inadequate log constitutes a waiver of the privilege.
First, meet and confer with the defendant's counsel to request a more detailed privilege log, and if that fails, file a motion to compel a proper log. (correct answer)
Serve interrogatories asking for the specific legal advice sought or given in each of the 30 withheld emails.

Explanation: The correct answer is (C). FRCP 26(b)(5) requires a party withholding information under a claim of privilege to describe the nature of the documents in a manner that, without revealing the privileged information itself, will enable other parties to assess the claim. A log that merely states "Attorney-Client Privilege" is likely insufficient. However, before filing a motion to compel, FRCP 37(a)(1) requires the moving party to certify that it has in good faith conferred or attempted to confer with the opposing party to resolve the dispute without court action. Therefore, the proper first step is to meet and confer. If that is unsuccessful, the appropriate motion is to compel a more detailed log, not necessarily the documents themselves yet. (A) is premature; sanctions are typically available only after a party violates a court order. (B) is a possible outcome if the deficient log is not corrected, but courts are often reluctant to find a complete waiver and will usually first order the party to produce a sufficient log. (D) is improper as it directly asks for the content of the privileged communications.

Question 10

In a personal injury lawsuit, the plaintiff claims to have suffered a severe traumatic brain injury (TBI) that has permanently impaired his cognitive functions. The defendant's attorney doubts the severity of the injury. The defendant moves for a court order compelling the plaintiff to submit to a mental examination by a neuropsychologist chosen by the defendant.

To succeed on the motion, what must the defendant show? Select one.

That the plaintiff's mental condition is relevant to the case and that the chosen examiner is a licensed professional.
That the plaintiff has waived any psychotherapist-patient privilege by filing the lawsuit.
That there is no less intrusive means of obtaining the information about the plaintiff's mental condition.
That the plaintiff's mental condition is in controversy and that there is good cause for the examination. (correct answer)

Explanation: When you encounter questions about court-ordered medical examinations, focus on the specific legal standard that courts must apply before compelling such invasive discovery. Under Federal Rule of Civil Procedure 35 and similar state rules, courts can order a party to submit to a physical or mental examination, but only when two key requirements are met. First, the party's physical or mental condition must be "in controversy" in the case—meaning it's a central disputed issue, not just tangentially relevant. Second, the requesting party must demonstrate "good cause" for the examination, showing that the examination is necessary and proportionate to the case's needs. Answer D correctly identifies both required elements: the mental condition must be in controversy and there must be good cause. Here, the plaintiff's cognitive impairment from TBI is clearly the central issue in this personal injury case, and the defendant has good cause to verify the claimed severity through independent examination. Answer A is incomplete because mere "relevance" is too low a standard—the condition must be "in controversy," which is a higher threshold than simple relevance. Answer B incorrectly focuses on privilege waiver, which isn't the controlling legal standard for court-ordered examinations. Answer C misstates the test by requiring proof that no "less intrusive means" exist, which isn't part of the Rule 35 analysis. Remember this pattern: Court-ordered medical examinations require the two-part test of "in controversy" plus "good cause." Don't be distracted by related concepts like privilege or general relevance standards.

Question 11

A corporation is sued in federal court. The plaintiff serves a request for production on the corporation seeking a specific internal report. The corporation objects, claiming the report is protected by the work product doctrine. The plaintiff files a motion to compel. The trial court, after reviewing the report in camera, finds that the report is protected work product and denies the motion to compel. The plaintiff, believing the ruling is a critical error that will prevent him from proving his case, immediately files a notice of appeal of the discovery order.

What is the most likely outcome of the plaintiff's appeal? Select one.

The appellate court will review the order for abuse of discretion and likely affirm the trial court's ruling.
The appellate court will review the order de novo because it involves a question of law.
The appellate court will issue a writ of mandamus ordering the trial court to compel production of the document.
The appellate court will dismiss the appeal because discovery orders are generally not immediately appealable. (correct answer)

Explanation: When you encounter appeals questions, always start by asking whether the order is immediately appealable. Most trial court rulings must wait until final judgment, and discovery orders fall squarely into this category. The correct answer is D because discovery orders are generally interlocutory (non-final) and therefore not immediately appealable under the final judgment rule. Even though the plaintiff believes this ruling will prevent him from proving his case, federal courts require parties to wait until after final judgment to appeal most discovery disputes. This promotes judicial efficiency and prevents piecemeal appeals that would fragment litigation. Choice A is wrong because while abuse of discretion would be the correct standard of review if the appeal were proper, the appellate court never reaches the merits since the appeal itself is improper. The standard of review becomes irrelevant when there's no appellate jurisdiction. Choice B incorrectly assumes the appeal is proper and misidentifies the standard. Even if appealable, discovery rulings on work product protection typically receive abuse of discretion review, not de novo review, because they involve case-specific factual determinations. Choice C suggests mandamus relief, but this extraordinary remedy requires showing the trial court clearly exceeded its authority and the appellant has no other adequate remedy. Here, the plaintiff has an adequate remedy—appealing after final judgment—and work product determinations are within the trial court's discretionary authority. Study tip: Remember the general rule that only final judgments are appealable, with narrow exceptions. When you see discovery disputes on appeals questions, your first instinct should be that immediate appeal is likely improper.

Question 12

In a lawsuit against an insurance company for bad faith denial of a claim, the plaintiff seeks discovery of the insurance company's claim file. The insurance company withholds certain documents from the file, asserting they are protected by the attorney-client privilege. These documents consist of communications between the non-attorney claims adjuster who handled the plaintiff's claim and the insurance company's in-house legal department. The communications occurred before the company made its final decision to deny the claim.

The plaintiff moves to compel production of these communications. What is the plaintiff's strongest argument for why the privilege should not apply? Select one.

The communications are not privileged because the claims adjuster is not an attorney.
The communications are discoverable because the insurance company waived the privilege by asserting a defense of good faith.
The communications are not privileged because any communication made before the final denial of a claim is considered part of the ordinary course of business.
The communications are not privileged if the attorney was acting in a business capacity as a claims investigator rather than in a legal capacity. (correct answer)

Explanation: Attorney-client privilege protects confidential communications between a client and attorney made for the purpose of obtaining legal advice. The key issue here is determining whether the attorney was acting in a legal capacity or a business capacity when communicating with the claims adjuster. Answer D correctly identifies the strongest argument because it goes to the heart of the privilege's purpose. If the in-house attorney was functioning as a claims investigator rather than providing legal advice, the communication falls outside the privilege's protection. Courts scrutinize the attorney's role carefully - was the attorney wearing a "lawyer hat" or a "business hat"? Insurance companies often use attorneys in claims investigation roles where they're essentially performing business functions rather than legal analysis. Answer A is wrong because the claims adjuster doesn't need to be an attorney - the privilege can protect communications between non-attorney employees and company counsel when seeking legal advice. Answer B misunderstands waiver doctrine; asserting good faith as a defense doesn't automatically waive privilege over pre-litigation communications - waiver typically requires more explicit disclosure of privileged materials or advice. Answer C creates a false rule about timing; there's no blanket exception for pre-denial communications being "ordinary course of business." The timing of communication doesn't determine privilege - the purpose does. When you encounter attorney-client privilege questions involving in-house counsel, always ask: "What was the attorney's primary function in this communication - legal advisor or business operator?" Insurance companies frequently blur these lines, making this a common battleground in discovery disputes.

Question 13

You are representing a defendant corporation in a trade secret misappropriation case. The plaintiff has noticed the deposition of your client's Chief Executive Officer (CEO). Your client's CEO has no direct, first-hand knowledge of the specific technical or factual issues underlying the lawsuit. You believe the plaintiff is noticing the deposition solely to harass the CEO and disrupt the company's business. You have offered to produce three other lower-level employees who have direct knowledge of the facts.

What is the best procedural step to take to prevent the CEO's deposition? Select one.

File a motion to dismiss for failure to state a claim, arguing that the plaintiff lacks sufficient evidence to proceed.
Instruct the CEO not to appear for the deposition and file for sanctions against the plaintiff's counsel for harassment.
File a motion for a protective order under Rule 26(c) to quash the deposition notice, arguing that it causes annoyance and undue burden. (correct answer)
Serve a notice of non-appearance on the plaintiff, stating that the CEO is unavailable and that other witnesses will be produced in her place.

Explanation: The correct answer is (C). The appropriate mechanism to prevent or limit a deposition that a party believes is improper is to move for a protective order under FRCP 26(c). In this motion, the defendant would argue that deposing a high-level executive with no personal knowledge of the relevant facts (often called an "apex" deposition) constitutes annoyance, oppression, or undue burden, especially when the information can be obtained from other, less-intrusive sources. (A) is incorrect; a motion to dismiss attacks the sufficiency of the pleadings, not a discovery dispute. (B) is improper and risky. Unilaterally failing to appear for a properly noticed deposition could subject the client and attorney to sanctions under Rule 37(d). (D) is not a recognized procedural device; a party cannot simply refuse to produce a noticed witness without seeking court intervention through a protective order.

Question 14

In a federal diversity action, a plaintiff served a request for production of documents on the defendant. In its response, the defendant's counsel inadvertently produced an email chain between the defendant and its attorney concerning the litigation. A week later, the defendant's counsel realized the error and immediately sent a letter to the plaintiff's counsel, demanding the return of the documents and asserting they were protected by attorney-client privilege. The plaintiff's counsel refused, arguing the privilege was waived by disclosure.

What is the defendant's counsel's best argument that the privilege was not waived? Select one.

The disclosure does not operate as a waiver because the documents were produced in a federal action, where inadvertent disclosure is never a waiver.
The disclosure does not operate as a waiver because the attorney took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error. (correct answer)
The disclosure operates as a waiver, but it is limited to the email chain itself and does not extend to the entire subject matter of the communication.
The disclosure operates as a waiver only if the plaintiff's counsel can show that they have already relied on the privileged information to their detriment.

Explanation: The correct answer is (B). Under FRCP 26(b)(5)(B) and Federal Rule of Evidence 502, an inadvertent disclosure of privileged material does not operate as a waiver in a federal proceeding if the holder of the privilege (1) took reasonable steps to prevent disclosure, and (2) promptly took reasonable steps to rectify the error, including notifying the receiving party. The defendant's counsel's prompt letter is evidence of the second element. The argument would depend on showing the first element was also met. (A) is incorrect because inadvertent disclosure can be a waiver under federal rules if the conditions of FRE 502 are not met. (C) describes the scope of waiver if one is found, not an argument that no waiver occurred. (D) states an incorrect legal standard; detrimental reliance is not the test for whether an inadvertent disclosure constitutes a waiver.

Question 15

What is your best course of action to respond to the two topics for which no employee has knowledge? Select one.

Object to the two topics as overly broad and unduly burdensome because no current employee has knowledge.
Allow the designated witness to be deposed and instruct her not to answer any questions on the two topics, stating a lack of personal knowledge.
Designate the archived documents themselves as the deponent for the two topics under FRCP 30(b)(6).
Prepare the designated witness to testify about the information contained in the archived documents, even though she lacks first-hand personal knowledge. (correct answer)

Question 16

In a personal injury case, the defendant's attorney took the deposition of the plaintiff's treating physician. During the deposition, the defendant's attorney asked, "Doctor, in your expert opinion, what is the plaintiff's long-term prognosis?" The plaintiff's attorney immediately objected and instructed the physician not to answer the question, stating that the question called for an expert opinion that had not been disclosed in a Rule 26(a)(2) report.

The defendant's attorney has filed a motion to compel the physician to answer the question. Is the court likely to grant the motion? Select one.

Yes, because an instruction not to answer is only proper when necessary to preserve a privilege, enforce a court-ordered limitation, or present a motion to terminate the deposition. (correct answer)
Yes, because a treating physician is not considered a retained expert and is therefore exempt from the written report requirement of Rule 26(a)(2).
No, because the defendant failed to subpoena the treating physician for the deposition, making any testimony involuntary.
No, because the question improperly seeks to elicit expert testimony beyond the scope of the physician's treatment of the plaintiff.

Explanation: The correct answer is (A). Under FRCP 30(c)(2), an instruction not to answer a question during a deposition is improper unless it is to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3) to terminate or limit the deposition due to bad faith or harassment. An objection based on the scope of expert disclosure is not one of these enumerated grounds. The proper procedure is to state the objection on the record and allow the witness to answer the question, preserving the objection for a later motion in limine at trial. (B) is a correct statement of law but is not the primary reason the motion would be granted; the procedural impropriety of the instruction is the key issue. While treating physicians are generally not required to produce a full expert report, they must still be disclosed as potential expert witnesses, and the scope of their testimony can be explored. (C) is factually unsupported by the stem and irrelevant to the propriety of the instruction. (D) relates to the merits of the objection itself, but it does not justify the attorney's instruction not to answer, which is the central procedural flaw.

Question 17

To succeed on the motion, what must the defendant show? Select one.

That the plaintiff's mental condition is relevant to the case and that the chosen examiner is a licensed professional.
That the plaintiff has waived any psychotherapist-patient privilege by filing the lawsuit.
That there is no less intrusive means of obtaining the information about the plaintiff's mental condition.
That the plaintiff's mental condition is in controversy and that there is good cause for the examination. (correct answer)

Question 18

The employer's objection is most likely to be sustained if the employer also does which of the following? Select one.

Specifies that the records from which the answer may be derived are available and gives the plaintiff a reasonable opportunity to examine and audit them. (correct answer)
Files a motion for a protective order to shift the cost of compiling the information to the plaintiff.
Argues that the information is irrelevant because the circumstances of other employees' terminations have no bearing on the plaintiff's case.
Asserts that the personnel files contain confidential information protected by the privacy rights of the other employees.

Question 19

What is the best procedural step to take to prevent the CEO's deposition? Select one.

File a motion to dismiss for failure to state a claim, arguing that the plaintiff lacks sufficient evidence to proceed.
Instruct the CEO not to appear for the deposition and file for sanctions against the plaintiff's counsel for harassment.
File a motion for a protective order under Rule 26(c) to quash the deposition notice, arguing that it causes annoyance and undue burden. (correct answer)
Serve a notice of non-appearance on the plaintiff, stating that the CEO is unavailable and that other witnesses will be produced in her place.

Question 20

You represent a plaintiff in a medical malpractice action. You hire two experts: a board-certified surgeon to testify at trial about the standard of care, and a retired physician to act as a non-testifying consultant to help you understand complex medical issues. The defendant serves discovery seeking the identity of all experts you have consulted and a copy of any report prepared by them. You object to providing any information about the retired physician.

How is a court most likely to rule on the defendant's motion to compel discovery regarding the retired physician? Select one.

The court will compel disclosure of the physician's identity and any report he prepared, because all experts consulted must be disclosed.
The court will not compel discovery because the facts known and opinions held by a non-testifying expert are not discoverable.
The court will compel discovery only if the defendant can show exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means. (correct answer)
The court will compel disclosure of the physician's identity but will protect any reports he prepared as opinion work product.

Explanation: The correct answer is (C). FRCP 26(b)(4)(D) governs discovery of non-testifying experts who are retained or specially employed in anticipation of litigation. The rule states that a party may not discover facts known or opinions held by such an expert, except upon a showing of "exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means." This is a very high bar. (A) is incorrect because the rules explicitly distinguish between testifying and non-testifying experts for discovery purposes. (B) is an overstatement; while discovery is heavily restricted, it is not absolutely barred, as the "exceptional circumstances" exception demonstrates. (D) is incorrect because the protection is not based on the work product doctrine but on a specific rule for consulting experts, and it protects both identity and opinions absent the required showing.