Ch 7: Pretrial Procedure and Discovery

Question 1

What does Rule 26(a) require parties to make?

Answer 1

Certain mandatory disclosures including initial disclosures, disclosures of expert testimony 90 days before trial, and pretrial disclosures 30 days before trial

These disclosures must be made in writing, signed, and served, even if not requested by the opposing party.

Question 2

What are initial disclosures under Rule 26(a)(1)?

Answer 2

Initial disclosures include:
* Names and contact information of individuals likely to have discoverable information
* Copies or descriptions of documents and tangible things
* Computation of damages claimed
* Any insurance agreements relevant to the case

Question 3

What is the standard for initial disclosures under Rule 26(a)(1)(E)?

Answer 3

A party must make initial disclosures based on information that is reasonably available to it

A party is not excused from making disclosures due to incomplete investigations or challenges to another party’s disclosures.

Question 4

What categories of proceedings are excluded from initial disclosure requirements under Rule 26(a)(1)(B)?

Answer 4

Exclusions include:
* Actions for review on an administrative record
* Forfeiture actions in rem
* Petitions for habeas corpus
* Actions without an attorney by a person in custody
* Actions to enforce or quash an administrative summons
* Actions by the United States to recover benefit payments
* Actions to collect on a student loan
* Ancillary proceedings in another court
* Actions to enforce an arbitration award

Question 5

When must initial disclosures be made according to Rule 26(a)(1)?

Answer 5

Within 14 days after the parties’ Rule 26(f) conference unless otherwise stipulated or ordered by the court

Question 6

What does Rule 26(a)(2) require regarding expert testimony?

Answer 6

Parties must disclose identities of expert witnesses and produce an expert report for each

The report must include opinions, facts considered, exhibits, qualifications, publications, compensation, and prior cases.

Question 7

When must expert testimony disclosures be made?

Answer 7

At least 90 days before trial or as ordered by the court

If intended solely to rebut another party’s expert, disclosure must be made within 30 days after the opposing party’s disclosure.

Question 8

What must parties disclose under Rule 26(a)(3) regarding pretrial disclosures?

Answer 8

Parties must disclose:
* Names and contact information of witnesses
* Designation of witnesses whose testimony will be presented by deposition
* Identification of documents or other exhibits expected to be offered

Question 9

When must pretrial disclosures be made?

Answer 9

At least 30 days before trial unless otherwise ordered by the court

Question 10

What can a party do within 14 days after pretrial disclosures?

Answer 10

Serve and file objections to the use of depositions and admissibility of disclosed documents

If objections are not made, they may be waived unless excused by the court.

Question 11

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

Answer 11

Discovery is permitted regarding any nonprivileged matter relevant to any party’s claim or defense and proportional to the needs of the case

Question 12

What factors do courts consider when allowing discovery?

Answer 12

Courts consider:
* Importance of the issues
* Amount in controversy
* Parties’ access to information
* Parties’ resources
* Importance of discovery in resolving issues
* Burden vs. benefit of proposed discovery

Question 13

Is information required to be admissible to be discoverable?

Answer 13

No, information within the scope of discovery need not be admissible to be discoverable

Question 14

What does Rule 26(b)(2) state about electronically stored information?

Answer 14

A party is not required to provide discovery of electronically stored information from sources identified as not reasonably accessible due to undue burden or cost

Question 15

What is spoliation of evidence?

Answer 15

The negligent or intentional destruction or significant alteration of evidence required for discovery

Spoliation may result in sanctions under Rule 37.

Question 16

What are the sanctions for intentional destruction of evidence?

Answer 16

Sanctions may include:
* Presumption that destroyed information was unfavorable
* Jury instruction regarding presumption of unfavorable information
* Entry of default judgment against the party

Question 17

What limited protection does Rule 26(b)(3) provide?

Answer 17

Limited protection for trial-preparation materials and attorney work product, unless substantial need and undue hardship are shown

Question 18

What must a party do when withholding information due to privilege under Rule 26(b)(5)(A)?

Answer 18

State the claim of privilege and describe the materials not produced to enable assessment of the privilege

Question 19

What is required for each initial or pretrial disclosure under the signature requirement?

Answer 19

Must be signed by at least one attorney of record or the party personally if unrepresented, certifying completeness and correctness

Question 20

What must a disclosure be regarding its completeness?

Answer 20

It must be complete and correct as of the time it is made.

Question 21

What are the requirements for a discovery request response?

Answer 21

• Consistent with the Rules
• Warranted by existing law or a nonfrivolous argument for law modification
• Not for improper purpose
• Neither unreasonable nor unduly burdensome

Question 22

What happens if a certification violates Rule 26(g)?

Answer 22

The court must impose an appropriate sanction on the signer or the party represented.

Question 23

What is the purpose of a protective order under Rule 26(c)?

Answer 23

To protect parties from annoyance, embarrassment, oppression, or undue burden or expense.

Question 24

What is required if a disclosure or response is materially incomplete or incorrect?

Answer 24

The party must supplement or correct the disclosure or response in a timely manner.

Question 25

What is the timing requirement for a Rule 26(f) discovery conference?

Answer 25

It must occur at least 21 days before a scheduling conference or a scheduling order is due.

Question 26

What is the purpose of a Rule 26(f) discovery conference?

Answer 26

* Consider claims and defenses * Make automatic disclosures * Discuss preserving discoverable information * Develop a proposed discovery plan

Question 27

What must be included in the discovery plan developed in a Rule 26(f) conference?

Answer 27

* Views on necessary discovery * Schedule for discovery * Modifications to disclosures * Issues about electronically stored information * Proposed scheduling or protective orders

Question 28

What are the consequences of failing to participate in the framing of the discovery plan under Rule 37(f)?

Answer 28

The court may require payment of reasonable expenses incurred because of such failure.

Question 29

What are the two forms of depositions mentioned?

Answer 29

* Oral depositions * Written depositions

Question 30

When can an oral deposition be taken according to Rule 30?

Answer 30

At any time after the discovery conference pursuant to Rule 26(f).

Question 31

What is required for notice of deposition?

Answer 31

Written notice stating the time, place, and deponent's name and address must be given to every other party.

Question 32

What is the limitation on the number of depositions without court leave?

Answer 32

Limited to 10 depositions by each group of plaintiffs, defendants, and third-party defendants.

Question 33

What must happen if a party fails to attend a deposition?

Answer 33

They may be subject to a court order requiring payment of reasonable expenses.

Question 34

What is the maximum duration for a deposition under Rule 30(d)(1)?

Answer 34

One day of seven hours unless agreed otherwise.

Question 35

What are interrogatories under Rule 33(a)?

Answer 35

Written questions served by one party on another, limited to 25 interrogatories.

Question 36

What is the requirement for answering interrogatories?

Answer 36

Must be answered fully and separately under oath within 30 days.

Question 37

What is an option for producing business records in response to an interrogatory?

Answer 37

The responding party may answer by specifying the business records from which the answer can be derived.

Question 38

What does Rule 34 allow parties to do?

Answer 38

Issue discovery requests for the inspection of documents, tangible things, and land.

Question 39

What items can be included in a request to produce documents?

Answer 39

* Writings * Drawings * Graphs * Charts * Photographs * Sound recordings * Images * Other data compilations

Question 40

What is required for a party to enter another party's land for inspection?

Answer 40

A request must be served to inspect, measure, survey, photograph, test, or sample the property.

Question 41

What types of materials can be produced in discovery?

Answer 41

* Writings * Drawings * Graphs * Charts * Photographs * Sound recordings * Images * Other data or data compilations ## Footnote These materials are included under discovery requests for evidence gathering.

Question 42

What does a request to inspect land allow?

Answer 42

It allows a party to enter another party’s land to inspect, measure, survey, photograph, test, or sample the property relevant to the action. ## Footnote This is governed by Rule 34(a)(2).

Question 43

What must a request to produce include?

Answer 43

* Describe each item or category with reasonable particularity * Specify a reasonable time, place, and manner for inspection * May specify the form for electronically stored information ## Footnote These requirements are outlined in Rule 34(b)(1).

Question 44

What is the general timeline for responding to a request to produce?

Answer 44

The party must respond in writing within 30 days after being served, unless otherwise stipulated or ordered by the court. ## Footnote This is specified in Rule 34(b)(2)(A).

Question 45

What happens if a party fails to comply with a document request?

Answer 45

The requesting party may move to compel under Rule 37(a). ## Footnote This applies if the party fails to respond or allow inspection.

Question 46

What is required if a party opts to produce documents instead of permitting inspection?

Answer 46

The production must be completed by the time specified in the request or another reasonable time specified in the response. ## Footnote This is governed by Rule 34(b)(2)(B).

Question 47

What is the purpose of Rule 35(a)?

Answer 47

It allows the court to order a physical or mental examination if the condition of a party is in controversy. ## Footnote This includes examinations by suitably licensed or certified examiners.

Question 48

What must be included in the examiner's report?

Answer 48

* Results of all tests * Diagnoses * Conclusions * Reports of earlier examinations of the same condition ## Footnote These requirements are outlined in Rule 35(b).

Question 49

What is the effect of an admission under Rule 36?

Answer 49

It is conclusively established unless permitted to be withdrawn or amended by the court. ## Footnote The court may allow this if it promotes the presentation of the merits of the action.

Question 50

What can a subpoena command a nonparty to do?

Answer 50

* Attend and testify * Produce designated documents or tangible things * Permit the inspection of premises ## Footnote This is outlined in Rule 45.

Question 51

What is the geographic limit for compliance with a subpoena?

Answer 51

A subpoena may command attendance only within 100 miles of where the person resides, is employed, or regularly transacts business. ## Footnote This is specified in Rule 45(c).

Question 52

What must a motion to compel include?

Answer 52

It must be served on all parties and accompanied by a certificate of good faith effort to confer with the opposing party. ## Footnote This requirement is outlined in Rule 37(a)(1).

Question 53

What sanctions can be imposed for failing to comply with a court order regarding discovery?

Answer 53

* Directing that matters be established for the action * Prohibiting support for designated claims or defenses * Striking pleadings * Staying further proceedings * Dismissing the action * Rendering a default judgment * Treating as contempt of court ## Footnote These sanctions are detailed in Rule 37(b)(2).

Question 54

True or False: A deposition can be used against a party who was not present at the deposition.

Answer 54

False ## Footnote Depositions may generally be offered against parties present or represented at the deposition.

Question 55

What is required for a party to use a deposition taken in a prior action?

Answer 55

It must have been lawfully taken and filed in any federal or state action involving the same subject matter between the same parties. ## Footnote This is specified in Rule 32(a)(8).

Question 56

Fill in the blank: Under Rule 33(c), an answer to an interrogatory may be used as a _______.

Answer 56

[party admission] ## Footnote However, it could also constitute hearsay if offered against another party.

Question 57

What are the types of sanctions that a court may impose under Rule 37(b)(2)?

Answer 57

* Striking pleadings in whole or in part * Staying further proceedings until the order is obeyed * Dismissing the action in whole or in part * Rendering a default judgment against the disobedient party * Treating as contempt of court the failure to obey any order ## Footnote The list is not exhaustive; the court may impose any sanction that is 'just.'

Question 58

What can the court require from a disobedient party under Rule 37(b)(2) regarding monetary sanctions?

Answer 58

The court may require the disobedient party or their attorney to pay the movant's reasonable expenses, including attorney's fees, unless the failure was substantially justified or imposing fees would be unjust. ## Footnote This can be in lieu of or in addition to other sanctions.

Question 59

Under Rule 37(c)(1), what happens if a party fails to make or supplement its automatic disclosures?

Answer 59

The party will not be permitted to use the undisclosed documents or call the undisclosed witnesses unless the nondisclosure was substantially justified or harmless. ## Footnote This applies to trial evidence and motions but not to impeachment evidence.

Question 60

What occurs if a party fails to admit a matter requested under Rule 36?

Answer 60

The party proving the matter true at trial can move for the award of reasonable expenses incurred in proving the matter. ## Footnote This is specified under Rule 37(c)(2).

Question 61

What sanctions may be imposed if a party fails to attend their deposition under Rule 37(d)(1)(A)(i)?

Answer 61

The court may impose sanctions for failing to appear unless the party has a pending motion for a protective order. ## Footnote Proper notification is required for the deposition.

Question 62

What sanctions can be imposed for failing to answer interrogatories or serve a response to requests under Rule 37(d)(1)(A)(ii)?

Answer 62

The court may impose sanctions if a party fails to answer or object to properly served interrogatories or fails to serve a written response to a request for production. ## Footnote The moving party must certify good faith efforts to confer with the opposing party.

Question 63

What happens if electronically stored information is lost due to a party's failure to preserve it?

Answer 63

The court may order measures to cure prejudice or presume the lost information was unfavorable to the party. ## Footnote This is governed by Rule 37(e).

Question 64

What standard is used to review sanctions imposed by a court?

Answer 64

Sanctions are reviewed under the abuse-of-discretion standard. ## Footnote This standard is highly deferential to trial judges' discretionary rulings.

Question 65

What is the purpose of pretrial conferences under Rule 16(a)?

Answer 65

* Expediting disposition of the action * Effective case management * Facilitating settlement ## Footnote A represented party must authorize an attorney to make stipulations at the conference.

Question 66

What must a scheduling order include according to Rule 16(b)(3)?

Answer 66

* Limitations on joining parties * Amendments to pleadings * Completion of discovery * Filing motions * Dates for pretrial conferences and trial ## Footnote The order can also address electronically stored information.

Question 67

What factors does the court consider for voluntary dismissal under Rule 41(a)(2)?

Answer 67

* Defendant’s efforts and funds towards trial preparation * Plaintiff’s delay or lack of diligence * Plaintiff’s explanation for dismissal * Duplicative expenses in a second suit * Dismissal to avoid adverse determination * Loss of beneficial discovery rulings * Claim's vexatious nature ## Footnote These factors help determine if dismissal would prejudice the defendant.

Question 68

What is the definition of a dismissal without prejudice?

Answer 68

A dismissal that allows the plaintiff to sue the defendant on the same claim in the future. ## Footnote If a prior action was dismissed based on the same claim, a subsequent dismissal will be with prejudice.

Question 69

What is the general rule regarding setting aside an entry of default?

Answer 69

An entry of default may be set aside for good cause, considering factors like willfulness, prejudice to the plaintiff, and whether the defendant has a meritorious claim. ## Footnote This is governed by Rule 55(c).

Question 70

What is required for a court to enter a default judgment according to Rule 55(b)(1)?

Answer 70

The relief sought must be a sum certain or an amount that can be made certain by computation, and the defendant must not be a minor or incompetent person. ## Footnote The default judgment must be entered by the court clerk on the plaintiff's request.

Question 71

What must a plaintiff do to obtain a default judgment against a party that has appeared?

Answer 71

The plaintiff must apply to the court and serve written notice of application at least seven days before the hearing. ## Footnote The court may conduct a hearing to determine damages or establish the truth of allegations.

Question 72

What is the standard for granting a motion for summary judgment under Rule 56?

Answer 72

Summary judgment must be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Question 73

What is the standard for a motion for summary judgment under Rule 56?

Answer 73

A motion for summary judgment must be granted if: * There is no genuine dispute as to any material fact * The movant is entitled to judgment as a matter of law ## Footnote A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Question 74

What must the court do when ruling on a motion for summary judgment?

Answer 74

The court must: * Construe all evidence in the light most favorable to the nonmoving party * Resolve all doubts in favor of the nonmoving party

Question 75

Who has the burden of proof on a motion for summary judgment?

Answer 75

The movant has the burden of persuasion.

Question 76

What happens to the burden of proof once the movant makes a prima facie showing?

Answer 76

The burden shifts to the opposing party to provide specific evidence showing the existence of a genuine issue of fact for trial.

Question 77

What types of materials must the court consider in a motion for summary judgment?

Answer 77

The court must consider: * Affidavits * Documents * Electronically stored information * Pleadings * Deposition transcripts * Interrogatory answers * Admissions * Stipulations filed by the parties

Question 78

What are the requirements for supporting and opposing affidavits?

Answer 78

Affidavits must: * Be made on personal knowledge * Set out facts admissible in evidence * Establish the affiant’s competency to testify

Question 79

What is an unsworn declaration, and how does it relate to affidavits?

Answer 79

An unsworn declaration made under penalty of perjury has the same force and effect as an affidavit if it meets specific requirements and is signed and dated.

Question 80

What must an opposing party provide in response to a motion for summary judgment?

Answer 80

The opposing party must provide specific facts showing a genuine dispute for trial, not merely rely on allegations or denials.

Question 81

Is there an explicit requirement in Rule 56 that discovery must be complete before summary judgment?

Answer 81

No, but granting summary judgment is generally improper unless the nonmovant has had sufficient opportunity to obtain discovery.

Question 82

What can the court do if the opposing party shows they cannot present facts essential to oppose the motion?

Answer 82

The court may: * Defer considering the motion or deny it * Provide time to obtain affidavits or conduct discovery * Issue any other appropriate order

Question 83

What is a partial summary judgment?

Answer 83

A partial summary judgment is a court’s judgment for one party on one or more—but not all—issues without a full trial.

Question 84

What is the time frame for filing a motion for summary judgment?

Answer 84

A party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Question 85

Can a grant of full summary judgment be appealed?

Answer 85

Yes, it is a final disposition on the merits and is subject to appeal.

Question 86

Is an order denying summary judgment a final disposition?

Answer 86

No, it is generally not a final disposition and is not subject to immediate appeal.

Question 87

What is a declaratory judgment?

Answer 87

A declaratory judgment is a ruling where the court clarifies the rights, responsibilities, or obligations of parties without awarding damages.

Question 88

Under what circumstances do parties generally seek a declaratory judgment?

Answer 88

To resolve uncertainty and avoid the possibility of a future lawsuit.

Question 89

What does the federal Declaratory Judgment Act allow?

Answer 89

It allows federal courts to award declaratory relief in actions within the court’s original jurisdiction, with exceptions.

Question 90

What types of actions are generally excluded from declaratory relief under the federal Declaratory Judgment Act?

Answer 90

Certain actions concerning taxes, bankruptcy, free trade, or drug patents.

Question 91

What is the time frame for initial disclosures after the initial planning conference?

Answer 91

Within 14 days after the initial planning conference ## Footnote Initial disclosures include individuals with discoverable information, documents supporting claims or defenses, and any relevant insurance agreement.

Question 92

What must the court issue after a defendant has been served with a complaint?

Answer 92

A scheduling order as soon as practicable, but no more than 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared ## Footnote This is outlined in the scheduling rules.

Question 93

What is the scope of discovery?

Answer 93

Discovery is permitted regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case ## Footnote The information sought need only be relevant—not admissible—to be discoverable.

Question 94

What is required to discover documents prepared in anticipation of litigation?

Answer 94

A party must show substantial need for the materials and that they cannot obtain a substantial equivalent by other means without undue hardship ## Footnote This is governed by the Work Product Rule.

Question 95

What is the purpose of a Rule 26(f) discovery conference?

Answer 95

To consider claims and defenses, arrange initial disclosures, discuss preserving discoverable information, and develop a proposed discovery plan ## Footnote The conference must occur at least 21 days before a scheduling conference.

Question 96

What is the limit on the number of depositions each party can take?

Answer 96

Each party is limited to 10 depositions unless good cause is shown ## Footnote This is part of the discovery devices available.

Question 97

What must a party do within 30 days of service regarding interrogatories?

Answer 97

Provide written responses under oath unless timely objected to with specificity ## Footnote A party may serve no more than 25 written interrogatories.

Question 98

What happens if a party fails to appear for their own deposition?

Answer 98

The court may impose sanctions ## Footnote Sanctions can also be imposed for failing to respond to interrogatories or requests for production.

Question 99

What is the requirement for a plaintiff to voluntarily dismiss a claim without court leave?

Answer 99

By filing a notice of dismissal at any time before the opposing party serves an answer or a motion for summary judgment ## Footnote Alternatively, a stipulation of dismissal signed by all parties is also valid.

Question 100

What constitutes an involuntary dismissal?

Answer 100

A dismissal sought by a defendant when the plaintiff fails to prosecute its case or comply with the Federal Rules or a court order ## Footnote If granted, the dismissal is with prejudice.

Question 101

What is the standard for granting a motion for summary judgment?

Answer 101

No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law ## Footnote The evidence must be viewed in the light most favorable to the nonmovant.

Question 102

Fill in the blank: A deposition of an adverse party is admissible as a _______ statement.

Answer 102

opposing party’s ## Footnote This applies to depositions used in trial contexts.

Question 103

What must a party do if they wish to compel disclosure or discovery?

Answer 103

File a motion to compel against a party who failed to make automatic disclosures or respond to discovery requests ## Footnote This includes evasive or incomplete disclosures.

Question 104

What is the function of protective orders in discovery?

Answer 104

To protect parties from annoyance, harassment, embarrassment, oppression, or undue burden or expense resulting from discovery ## Footnote These can be entered upon a showing of good cause.

Question 105

What must be shown for a court to order the production of electronically stored information?

Answer 105

That reasonable steps were taken to preserve the information ## Footnote If lost due to negligence, the court may order measures to cure the prejudice.

Question 106

True or False: A party can serve an unlimited number of requests for admission.

Answer 106

True ## Footnote Responses to requests for admission must be made within 30 days.