Bar Exam (Next Generation) Quiz: Disclosures And Discovery

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Disclosures And DiscoveryQuestion 1 of 11

In a federal products-liability action, the plaintiff timely served the signed written report of its retained testifying expert, including the expert's opinions, their bases, and the compensation to be paid. The defendant moved to compel production of four items: (1) earlier drafts of the report; (2) an email from the plaintiff's attorney to the expert saying, "Do not include your views about the defendant's testing lab; cross-examination will cover that"; (3) a spreadsheet of raw test data that the plaintiff's attorney gave to the expert and the expert considered in forming the opinions in the report; and (4) the expert's invoices showing hourly rates and total fees. The plaintiff objected to all four requests.

Should the court order production of any of the requested items?

The spreadsheet and the invoices, but not the drafts or the email.

The email, the spreadsheet, and the invoices, but not the drafts.

The drafts, the spreadsheet, and the invoices, but not the email.

All four requested items must be produced.

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Bar Exam (Next Generation) Quiz

Bar Exam (Next Generation) Quiz: Disclosures And Discovery

Practice Disclosures And Discovery in Bar Exam (Next Generation) 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 Disclosures And Discovery, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Next Generation).

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

Should the court order production of any of the requested items?

The spreadsheet and the invoices, but not the drafts or the email. (correct answer)
The email, the spreadsheet, and the invoices, but not the drafts.
The drafts, the spreadsheet, and the invoices, but not the email.
All four requested items must be produced.

Explanation: Whenever you see a question about expert discovery, recall the 2015 amendments to Rule 26(b)(4). The key distinction is between protected work product/strategy and discoverable core data/compensation. Drafts of expert reports are categorically protected under Rule 26(b)(4)(B), regardless of their content. Similarly, communications between the attorney and expert are protected under Rule 26(b)(4)(C), with only three narrow exceptions: compensation, facts or data the expert considered, and assumptions relied upon. Here, the spreadsheet of raw test data falls squarely into the "facts or data considered" exception, so it must be produced. The expert's invoices showing rates and fees are the very definition of "compensation," so they are also discoverable. However, the drafts are absolutely shielded, and the email—which is a strategic instruction about cross-examination and omitting a view—is a protected communication about the expert's opinions, not a factual assumption or data set. Therefore, only the spreadsheet and invoices are compelled. Choice B wrongly forces the email, mistaking a tactical instruction for an excepted communication. Choice C wrongly forces the drafts, overlooking their absolute protection. Choice D fails entirely because it forces both the drafts and the email, ignoring the explicit protections in the rules. On exam day, if you see drafts or strategy memos, they are off-limits; if you see money, raw data, or stated assumptions, they are in-play.

Question 2

In an automobile-collision suit, the plaintiff's initial disclosures identified a witness and stated that she "observed the entire collision." At her deposition, the witness testified that she did not see the impact but saw the plaintiff's car immediately before it entered the intersection. The plaintiff did not supplement the initial disclosure. The defendant moves to exclude the witness's testimony at trial under Rule 37(c). How should the court rule?

Exclude the witness because the initial disclosure was materially inaccurate and was never corrected.
Admit the witness because the defendant learned the corrected information at the deposition, so no supplementation was required. (correct answer)
Exclude the witness unless the plaintiff shows that the inaccurate disclosure was not made in bad faith.
Admit the witness only if the defendant did not have a reasonable opportunity to question the witness about the discrepancy.

Explanation: This question tests the relationship between initial disclosures, the duty to supplement under Rule 26(e), and exclusion under Rule 37(c). Whenever you see a Rule 37(c) motion, first ask: was there actually a failure to supplement? If the other party already learned the corrected information through discovery, the duty has been satisfied. Here, the witness's deposition corrected the initial disclosure: she did not see the impact, but saw the car just before the intersection. Because the defendant heard that testimony directly at the deposition, the information was "otherwise made known" during discovery. Under Rule 26(e), no supplemental disclosure is required when the new information has already been disclosed in a deposition. Therefore, there was no Rule 26(e) violation, and Rule 37(c) exclusion is not available. The first wrong choice, excluding the witness because the initial disclosure was materially inaccurate and never corrected, misses that deposition testimony itself supplied the correction. The third choice, excluding unless the plaintiff shows the inaccuracy was not made in bad faith, confuses the standard: Rule 37(c)(1) asks whether the failure was substantially justified or harmless, and there is no failure here at all. The fourth choice, admitting only if the defendant lacked a reasonable opportunity to question the witness, inverts the logic — the defendant did have that opportunity at deposition, which is exactly why admission is proper. Study tip: for supplementation questions, remember "disclosure by deposition counts as disclosure." If the opposing party learns the truth in discovery, no separate supplement is needed.

Question 3

An employee was the only eyewitness to an explosion at the defendant's plant. After receiving a demand letter from the plaintiff's attorney, the defendant's lawyer interviewed the employee and prepared a memorandum containing the employee's verbatim account of the explosion and, in separate paragraphs, the lawyer's assessments of the employee's credibility and defense strategy. The employee died before trial. The plaintiff seeks the entire memorandum. The defendant asserts work-product protection. How should the court rule?

The entire memorandum is protected from disclosure because it was prepared by a lawyer in anticipation of litigation.
The entire memorandum must be produced because the only eyewitness is dead and the plaintiff cannot obtain the information elsewhere.
The entire memorandum must be produced because witness statements are not work product, even when prepared at counsel's request.
The court may order production of the employee's statement, but it must protect the lawyer's assessments and strategy from disclosure. (correct answer)

Explanation: Whenever you see a question about materials prepared for litigation, think about the two categories of work product: ordinary fact work product and opinion work product. The employee's verbatim account of the explosion is ordinary fact work product — it was created because of anticipated litigation, but its content is factual. The lawyer's assessments of credibility and defense strategy, however, are core opinion work product, which receives far stronger protection. The correct approach here is to split the memo accordingly. The worker is dead and was the only eyewitness, so the plaintiff has substantial need for his statement and cannot obtain its substantive equivalent through other means. That makes the factual portion discoverable — the court may order production of the employee's statement. But the lawyer's assessments and strategy are mental impressions and legal theories, so the court must protect them from disclosure, typically by ordering production of only the statement portions. Thus the answer is that the court may order production of the employee's statement but must protect the lawyer's assessments and strategy. The other choices fail because they swing too far. Saying the entire memorandum is protected ignores the plaintiff's substantial need for the factual statement of the only eyewitness. Saying the entire memorandum must be produced goes too far the other way, because opinion work product cannot be forced out merely because the underlying facts are needed. And saying witness statements are not work product is simply wrong: witness statements obtained in anticipation of litigation are protected by the work-product doctrine, even if they are factual. So when you see mixed fact/opinion documents, remember: sever the factual, protect the strategy — substantial need overcomes fact work product, but never core opinion work product.

Question 4

In a personal-injury action, the defendant moved for and obtained an order requiring the plaintiff to submit to an examination by Dr. Lane under Rule 35. The plaintiff requested and received Dr. Lane's report. The plaintiff had previously been examined by her own physician, Dr. Sims, concerning the same injuries. The defendant now moves to compel the plaintiff to produce Dr. Sims's report. The plaintiff refuses, asserting privilege. How should the court rule?

Deny the motion because Rule 35 gives only the examined person the right to obtain reports of examinations.
Deny the motion because Dr. Sims's report is privileged work product and is not subject to compelled disclosure.
Grant the motion only if Dr. Sims is expected to testify at trial or to provide an expert opinion in this case.
Grant the motion because, by requesting and obtaining Dr. Lane's report, the plaintiff waived any privilege for reports of earlier examinations of the same condition. (correct answer)

Explanation: Whenever you see a Rule 35 physical-examination question, think about the rule's built-in trade-off: you can compel your opponent to be examined, but the rule creates a symmetrical exchange of reports for the same condition. Here, the plaintiff requested and received Dr. Lane's report. Under Rule 35(b), by requesting and obtaining that report, the plaintiff waived any privilege she had—including physician-patient or work-product protection—over reports of all examinations concerning the same condition. Dr. Sims's earlier examination was of the same injuries, so the defendant may compel it. The choice saying the court should deny because Rule 35 gives only the examined person the right to obtain reports ignores that the rule also gives the examiner's party access to prior-exam reports once the examined person chooses to obtain theirs. The "privileged work product" choice fails because the Rule 35 waiver reaches protected material; also, an examining physician's report is not necessarily attorney work product. The "only if Dr. Sims is expected to testify" choice invents a limitation—Rule 35 waiver is not conditioned on trial use; it applies to all reports of the same condition. Strategy: remember Rule 35 as a "reciprocity" rule—when a plaintiff obtains a compelled exam report, the defendant gets comparable exam records of the same condition. That symmetry is the test's favorite point.

Question 5

At trial, after the defendant's expert testifies that the plaintiff's injuries were preexisting, the plaintiff seeks to call a witness who will testify that the expert, in a different case, gave testimony inconsistent with his testimony in this case. The plaintiff never identified this witness in initial disclosures or in the pretrial disclosure under Rule 26(a)(3). The defendant objects. What is the correct result?

The witness may testify because the plaintiff will use the witness solely for impeachment. (correct answer)
The witness may not testify because the plaintiff failed to disclose the witness as required by Rule 26(a).
The witness may testify only if the plaintiff shows that the failure to disclose was substantially justified or harmless.
The witness may not testify because prior inconsistent statements of an expert are substantive evidence and must be disclosed.

Explanation: Whenever you see an undisclosed witness dispute, first ask whether the disclosure rules even apply. Both Rule 26(a)(1) initial disclosures and Rule 26(a)(3) pretrial disclosures exempt witnesses who will be used solely for impeachment. Here, the plaintiff's witness is not being offered to prove the plaintiff's injuries were or were not preexisting; the witness will testify only that the defendant's expert previously gave inconsistent testimony. That is classic impeachment by prior inconsistent statement under Rule 613(b), attacking credibility rather than proving an element of the case. Because the witness is solely for impeachment, no Rule 26(a) disclosure was required, so the objection fails and the witness may testify. The choice saying the witness may not testify because the plaintiff failed to disclose the witness as required by Rule 26(a) misses that exemption. The choice requiring a showing that the failure was substantially justified or harmless invokes Rule 37(c)(1), but that remedy applies only when a party failed to disclose information required by Rule 26—which is not the case here. Finally, the choice claiming prior inconsistent statements are substantive evidence and must be disclosed gets the law confused: some prior inconsistent statements can be substantive evidence if made under oath, but a witness used purely for impeachment still falls outside the disclosure duty regardless of whether the statement might later become admissible. Study tip: on the bar exam, read "solely for impeachment" as a disclosure safe harbor. If the question explicitly limits the witness's role to impeachment, stop before imposing Rule 26 sanctions.

Question 6

The plaintiff moved to compel the defendant to answer interrogatories that were 60 days overdue. The plaintiff's attorney had twice requested the answers by letter before filing the motion. Three days after the motion was filed, the defendant served complete answers. The court then denied the motion as moot. What must the court do about the plaintiff's attorney's fees and expenses in making the motion?

Deny the plaintiff's request for expenses because the motion was denied.
Award the defendant its expenses because the plaintiff's motion became moot.
Award the plaintiff her reasonable expenses, including attorney's fees. (correct answer)
Deny both parties' requests for expenses because the court did not reach the merits.

Explanation: Whenever you see a motion to compel discovery, remember Rule 37(a)(5): if the motion is granted or the requested discovery is served after the motion is filed, the court must award the prevailing movant her reasonable expenses, including attorney's fees, unless the opposing party's position was substantially justified or an award would be unjust. Here, the defendant answered three days after the motion was filed — after the plaintiff was forced to seek judicial intervention. The court's denial as moot does not erase that trigger. So the correct result is to award the plaintiff her reasonable expenses, including attorney's fees. The court is not free to deny expenses simply because the motion became moot; the rule expressly covers discovery provided after filing. The choice saying to deny because the motion was denied confuses mootness with relief on the merits — the plaintiff no longer needs compulsion, but she still won on the discovery conduct. Similarly, awarding the defendant its expenses because the plaintiff's motion became moot flips the incentive: it was the defendant's delay that necessitated the motion, so the defendant should bear the costs, not the plaintiff. And denying both parties' requests because the court did not reach the merits ignores that the rule mandates an expense award in this procedural posture; the court need not decide whether to compel because the answers arrived, but it must still address fees. For strategy, watch for "moot" motions in discovery disputes: the plaintiff can still recover expenses when the opposing party produces answers after the motion is filed. Ask yourself, "Whose conduct made this motion necessary?" That party pays — unless substantial justification or injustice shields them.

Question 7

A plaintiff in a personal-injury action intends to call her treating physician to testify that the defendant's negligence caused her injuries and that she will need future surgery. The physician treated the plaintiff over several months and formed her opinions during that treatment; she will receive only the standard witness fee. The plaintiff did not serve a written expert report but, before the pretrial disclosure deadline, served a disclosure stating the physician's subject matter and a summary of the facts and opinions to which she will testify. The defendant moves to exclude the physician's testimony for lack of a written expert report. How should the court rule?

Exclude the testimony because any expert opinion on causation and future damages requires a written report.
Exclude the testimony because the physician is being compensated for testifying and therefore is a retained expert.
Admit the testimony because the physician was not retained or specially employed to provide expert testimony and a summary disclosure is sufficient. (correct answer)
Admit the testimony only if the physician was also identified in the plaintiff's initial disclosures as a fact witness.

Explanation: When you see a question about expert disclosures, the critical distinction is between a retained expert (hired to form opinions for litigation) and a non-retained expert (like a treating physician). Under FRCP 26(a)(2)(B), only retained or specially employed experts must file a written report. Everyone else—including treating physicians—only needs a summary disclosure under 26(a)(2)(C). Here, the physician treated the plaintiff over several months and formed her opinions during that treatment, not in anticipation of litigation. She is also receiving only the standard witness fee, which does not convert her into a retained expert. Therefore, the plaintiff's disclosure of the subject matter and a summary of facts and opinions satisfies the rule. Her testimony on causation and future damages is admissible because those opinions are grounded in her clinical care, not in litigation-driven analysis. Now, examine the traps. The choice demanding a written report for any causation or future-damages opinion is wrong because that rule applies only to retained experts—a treating physician can testify to these topics without a report. Similarly, the choice claiming the standard witness fee makes her a retained expert misreads the rule; being "retained or specially employed" means being hired specifically to testify or consult, not simply receiving a nominal statutory fee. Finally, the choice requiring her to be listed as a fact witness in initial disclosures confuses the separate disclosure requirements—expert disclosures under 26(a)(2) are independent of fact-witness identification under 26(a)(1). Strategy: On exam day, spot the phrase "treating physician" and immediately ask: Did they treat the patient, or did they examine the patient only for the lawsuit? If treatment is the source of the opinions, a summary disclosure is enough.

Question 8

A plaintiff seeks emails that the defendant stored only on backup tapes. The defendant objects, stating that restoring the tapes would require a vendor and cost more than $100,000, and refuses to produce them. The plaintiff moves to compel. Which statement correctly describes the court's analysis?

The court must order production because the emails are relevant to the plaintiff's claims and proportional to the needs of the case.
The court must first require the defendant to show that the tapes are not reasonably accessible; if that showing is made, the plaintiff may show good cause, and the court may set conditions for production. (correct answer)
The court must deny production unless the plaintiff agrees to pay the full cost of restoration in advance.
The court must order the defendant to restore the tapes and bear the cost because the burden of proving accessibility is on the plaintiff.

Explanation: When you see a discovery dispute over electronically stored information (ESI) like backup tapes, your first thought should be FRCP 26(b)(2)(B)'s two-tier framework. This rule creates a special exception to the general proportionality standard. The correct analysis begins with the defendant objecting on grounds of undue burden or cost—that is the defendant's initial burden to prove that the ESI is not reasonably accessible. Only if the defendant makes that showing does the burden shift to the plaintiff to demonstrate good cause for the production. If the plaintiff succeeds, the court may order production but is expressly permitted to set conditions, such as cost-sharing or a specified protocol for restoration. The choice stating that the court "must order production" because the emails are relevant and proportional misses the point: relevance alone does not override the accessibility hurdle—the defendant gets a chance to object first. The choice requiring the court to "deny production unless the plaintiff agrees to pay the full cost in advance" is too rigid; the court has discretion to impose conditions, not a mandatory upfront payment by the plaintiff. Finally, the choice claiming the court must order restoration with the defendant bearing the cost because the burden of proving accessibility is on the plaintiff gets the burden backwards—the defendant must first show inaccessibility, not the plaintiff. Remember the two-step dance: defendant proves inaccessibility, then plaintiff proves good cause, and the court holds the discretion to shift costs.

Question 9

In a diversity action arising from a car accident, the defendant's insurer has denied coverage, asserting that the policy excludes the accident, and has reserved its rights. The defendant nonetheless acknowledges that, if the denial is wrong, the policy would cover any judgment. When serving initial disclosures under Rule 26(a)(1), which of the following is required?

The defendant need not disclose the policy until the coverage dispute is resolved.
The defendant need not disclose the policy because the insurer is not a party.
The defendant must disclose the policy only if it intends to rely on the policy at trial.
The defendant must disclose the policy despite the pending coverage dispute. (correct answer)

Explanation: When you see a question about initial disclosures, remember that Rule 26(a)(1) is designed to force early, automatic disclosure of basic information—including any insurance agreement under which an insurer "might be liable to satisfy all or part of a judgment" or to indemnify or reimburse payments. This is true even if the insurer is disputing coverage and has reserved its rights. The defendant must disclose the policy despite the pending coverage dispute because the policy is a potential source of payment for the judgment, and the dispute does not eliminate that possibility. The rule does not require the insurer to be a party, nor does it condition disclosure on the defendant's intent to use the policy at trial—disclosure is mandatory and immediate. The choice saying "need not disclose until the coverage dispute is resolved" misreads the rule: the dispute may be relevant later, but it does not suspend the initial-disclosure obligation. The choice saying "because the insurer is not a party" confuses party status with the existence of an insurance agreement—Rule 26 explicitly covers non-party insurers. Finally, "only if it intends to rely on the policy at trial" mistakenly treats this as a trial-preparation issue; it is a discovery obligation, independent of trial strategy. On exam day, if you see "insurance agreement" in a civil procedure question, immediately recall Rule 26(a)(1)(A)(iv)—it is always disclosed, even if coverage is contested.

Question 10

A plaintiff served a request for admission asking the defendant to "admit that defendant owned the vehicle involved in the collision." Within the deadline, the defendant's attorney served a response stating: "Defendant admits that the vehicle was registered to defendant, but denies that defendant owned the vehicle." The plaintiff moves to have the matter deemed admitted. How should the court rule?

The matter is admitted because registration raises a presumption of ownership that the defendant did not rebut.
The matter is admitted because the response was signed by an attorney and not verified by the defendant.
The matter is not admitted because the defendant specifically denied the matter requested in its response. (correct answer)
The matter is not admitted only if the defendant also denies ownership under oath in a sworn affidavit.

Explanation: Whenever you see a request for admission, remember the stakes: any matter not properly answered is deemed admitted, but a specific denial creates a contested issue for trial. Here, the plaintiff asked the defendant to admit ownership. The defendant's response did not dodge the request — it directly denied ownership while conceding registration. Under Rule 36, a denial need not be perfect; it must simply fairly respond to the substance. Because the defendant denied the precise fact (ownership), the matter is not admitted. The correct answer is the response that says the matter is not admitted because the defendant specifically denied it. That response is proper even without a sworn statement, because denials in responses to requests for admission are signed by the attorney, not verified by the party. So the choice claiming the matter is admitted because the response was signed by an attorney and not verified misunderstands the rule — verification is not required for a denial. The choice about registration raising a presumption of ownership misses the point: registration may be evidence of ownership, but it does not legally compel admission. The defendant has denied ownership, so the plaintiff must prove it. Finally, the choice requiring a sworn affidavit is wrong — no oath is required for a denial. Study tip: for requests for admission, ask two questions — Did the party respond on time? If yes, did the response specifically admit, deny, or explain why it cannot admit or deny? A specific denial means "not admitted." Watch for evasive responses, which may be treated as admissions.

Question 11

After the plaintiff's retained expert submitted a written report under Rule 26(a)(2)(B), the plaintiff's attorney exchanged emails with the expert. One email said: "Please assume the vehicle was traveling 55 m.p.h." The expert used that assumption in forming his opinions. Another email said: "Do not mention the prior recall in your testimony." A third discussed the expert's hourly fee. The defendant seeks production of all three emails. Which of the following is correct?

The fee email and the speed-assumption email are discoverable, but the instruction about the prior recall is not. (correct answer)
All three emails are discoverable because attorney-expert communications are not protected after the report is served.
None of the three emails is discoverable because all communications between an attorney and a testifying expert are protected.
Only the fee email is discoverable because expert compensation is always discoverable but all other communications are protected.

Explanation: This question tests the limited discoverability of attorney–expert communications after a Rule 26(a)(2)(B) report is served. Under Rule 26(b)(4)(C), those communications are generally protected, with three narrow exceptions: communications about expert compensation, communications that identify facts or data the attorney provided and the expert considered, and communications that identify assumptions the attorney provided and the expert relied on. Draft expert reports are also protected. The speed-assumption email falls squarely into the "assumptions" exception: the attorney asked the expert to assume 55 m.p.h., and the expert used that assumption in forming opinions, so it is discoverable. The fee email is discoverable because expert compensation is always a permitted subject of discovery. The instruction not to mention the prior recall, however, is an attorney's communication about trial/testimony strategy, not about facts, data, or assumptions the expert relied on; it remains protected. Thus the correct result is that the fee email and speed-assumption email are discoverable, but the prior-recall instruction is not. The wrong choices each miss part of that framework. Saying all three emails are discoverable because attorney-expert communications are unprotected after the report is served reflects an older view; the current rule protects those communications even after service, subject to the exceptions. Saying none are discoverable overreads the protection and ignores the compensation and assumption exceptions. Saying only the fee email is discoverable also ignores that facts, data, and assumptions provided by counsel and considered if relied on by the expert are equally discoverable. On this topic, remember the Rule 26(b)(4)(C) trio: compensation, facts/data considered, assumptions relied on. If an email falls outside those three, it stays protected—even after the report is served.