discovery Flashcards
(3 cards)
A customer choked on a bone in her fish fillet while eating at a restaurant. The restaurant’s manager, who was not in the restaurant when the incident occurred, met with the customer and the restaurant employees who witnessed the incident. As required by state law, the manager prepared a report regarding the incident and filed it with the state board of health. The manager then accepted a job in another country and moved there.
The customer subsequently commenced a civil action against the restaurant in a federal court, alleging negligence and a breach of the warranty of merchantability. The customer’s attorney served a request for all documents and reports prepared by the restaurant relating to the incident.
Must the restaurant produce the manager’s report?
A) Yes, because the manager prepared the report to comply with state law rather than to prepare for trial.
B) Yes, because the customer can establish that she has a substantial need for the report to prepare her case.
C) No, because the manager’s report is hearsay and therefore not discoverable.
D) No, because the report constitutes work product and is therefore not discoverable
The restaurant must produce the report because it is relevant, proportional to the needs of the case, and it was not prepared in anticipation of litigation. Generally, a party may obtain discovery regarding any matter that is proportional to the needs of the case and that is relevant to any party’s claim or defense, provided the matter is not subject to a privilege or to the exception for trial preparation materials, also called work product. Trial preparation materials are documents or other tangible things prepared in anticipation of litigation or for trial.
Here, the manager’s report is relevant because it contains facts relating to the incident that is the basis of plaintiff’s claim. Moreover, it is not subject to the exception for trial preparation materials because it was prepared in the ordinary course of business to comply with state law, not in anticipation of litigation. Finally, the costs of producing the report likely would not be prohibitive.
(B) is incorrect because it invokes the exception to the rule against discovery of work product, namely that work product is discoverable if the party seeking it “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” This exception is not pertinent because the manager’s report is not work product. (C) is incorrect because material need not be admissible as evidence to be discoverable. The standard is relevancy, not admissibility. (D) is incorrect because, as discussed above, the report is not work product.
A patient sued a surgeon for medical malpractice, alleging that the surgeon used an improper procedure during cardiac surgery, thereby permanently injuring the patient. The surgeon then wrote to a colleague, who was a renowned cardiologist, asking whether in her opinion the procedure was proper. In response, the colleague stated that the procedure was likely improper, but that she was unsure whether the patient’s injuries resulted from it. After receiving the colleague’s letter, the surgeon did not have any further communication with her about the matter.
Is the letter discoverable?
A) No, because the colleague did not have first-hand knowledge regarding the surgery that she was evaluating.
B) No, because the colleague will not testify at trial on behalf of the doctor.
C) Yes, because the colleague was not retained or specially employed by the doctor.
D) Yes, because the colleague is not an expert.
The letter is not discoverable because the colleague is a nontestifying expert. An expert is a person with knowledge, skill, experience, training, or education in a particular field. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed. Thus, the doctor need not produce the letter from his colleague, an expert in cardiology, because the doctor does not expect to call her as a trial witness.
(A) is incorrect because an expert need not have first-hand knowledge of facts to give an opinion based on those facts. In any event, although a fact witness’s lack of knowledge may in some circumstances provide a reason for excluding testimony at trial, it is not a valid ground for resisting discovery of relevant information. (C) is incorrect because the opinion of a nontestifying expert is nondiscoverable regardless of whether she is formally retained or not. (D) is incorrect because the cardiologist is an expert. The question states that she is a renowned cardiologist and that the doctor is consulting her about a cardiac surgery.
A car collector bought a car with gold leaf paint from a manufacturer. During the first month, all the gold leaf paint peeled off. The collector sued the manufacturer, and during discovery served an interrogatory asking the manufacturer to identify all other purchasers of the gold leaf paint over the previous 10 years. The manufacturer was aware that only about 25 of the 2 million buyers of its cars have ordered the gold leaf option. The manufacturer has retained copies of all sales forms, but has not maintained separate files of the buyers of each particular option.
In a court using the federal rules, what are the manufacturer’s obligations with respect to the collector’s interrogatory?
A) It must search its files and then disclose the information.
B) It may allow the collector to search the records himself.
C) It may respond by stating that only about 25 of the 2 million buyers ordered the option.
D) It may state that searching the records is too great a burden and so it is excused from answering the interrogatory.
Assuming the interrogatory is otherwise proper, the manufacturer may search the 2 million order forms itself or it may allow the collector access to the files. In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records. [Fed. R. Civ. P. 33]
(A) is incorrect because instead of searching the files itself, the manufacturer can allow the collector access to do it. (C) is incorrect because it is not responsive to the interrogatory. (D) is incorrect because a party is not relieved of its duty to answer just because the search is burdensome.
