Discovery tools, ESI and discovery motions

Discovery Devices: Match Proof to Process

Discovery is a set of different devices, and the first question is what kind of proof the device is designed to obtain. Choose the tool by asking who must respond, whether the response is testimony or a document, and whether the result merely supplies information or conclusively fixes a fact.

Tool	Who responds	What it obtains	Distinctive consequence
Oral deposition - Rule 30	A party or witness	Live sworn testimony	Counsel may examine and follow up in real time
Corporate-representative deposition - Rule 30(b)(6)	The organization	Testimony on noticed organizational matters	The organization must prepare its designee about information known or reasonably available
Written deposition - Rule 31	A party or witness through written questions	Sworn answers to served questions	No live examination; the officer records the answers
Interrogatories - Rule 33	Another party only	Written answers under oath	Ordinarily limited to 25, including discrete subparts
Requests for production - Rule 34	Another party	Documents, ESI, tangible things, or property access	Responding party produces, permits inspection, or specifically objects
Requests for admission - Rule 36	Another party only	Admissions about facts, law applied to fact, opinions, or document authenticity	An unanswered request is admitted; an admission is conclusively established unless withdrawn or amended

An oral deposition under Rule 30 is testimony, not a document request disguised as questioning. A deponent generally may be examined for one day of seven hours, subject to the rule’s exceptions, stipulation, or court order. Objections must ordinarily be stated concisely and without argument or suggestion; examination continues. The deponent may be instructed not to answer only to preserve a privilege, enforce a court-ordered limitation, or present a motion to terminate or limit the deposition under Rule 30.

A corporate deposition requires special precision. Under Rule 30(b)(6), the notice or subpoena must describe the matters for examination with reasonable particularity. The organization designates one or more persons to testify about information known or reasonably available to the organization, so it must prepare the witness. The witness need not have personally known the information before preparation, and the organization may use several designees for different matters.

A written deposition under Rule 31 is useful when sworn testimony is needed but live questioning is unnecessary. It remains a deposition, so it is not interchangeable with interrogatories: the questions are directed through a deposition officer and the answers are recorded as deposition testimony.

Interrogatories under Rule 33 may be served only on another party. The presumptive limit is 25 interrogatories, including discrete subparts, unless the parties stipulate otherwise or the court orders otherwise. The responding party must answer each separately and fully in writing under oath or state a specific objection. A corporation answers through an officer or agent, using information available to the organization. Interrogatories may seek contentions, but a contention answer is still an answer, not a license for a vague refusal.

Requests for production under Rule 34 may seek designated documents, ESI, tangible things, or permission to enter land or other property for inspection. The responding party must respond within 30 days unless a different period is stipulated or ordered. An objection must be specific and must say whether responsive material is being withheld on that basis. A request for production is not limited to paper: it is the primary device for obtaining files, emails, texts, databases, photographs, and other ESI.

Requests for admission under Rule 36 may ask another party to admit the truth of a fact, the application of law to fact, an opinion about either, or the genuineness of a document. The response is due within 30 days unless the parties or court set another time. The party must admit, specifically deny, or explain why it cannot truthfully admit or deny after reasonable inquiry. Failure to respond on time admits the matter. The admission is conclusively established in the action unless the court permits withdrawal or amendment under Rule 36(b), which requires that withdrawal or amendment promote presentation of the merits and that the court be unpersuaded it would prejudice the requesting party in maintaining or defending the action on the merits.

A physical or mental examination under Rule 35 has two conjunctive requirements: the condition must be in controversy, and the moving party must show good cause. The examination requires a court order on motion, with notice to the parties and the person to be examined. It applies to a party or a person in the custody or legal control of a party, not every witness who possesses relevant medical information. The order specifies the time, place, manner, conditions, scope, and examiner. A Rule 35 examination creates an examination and report; it is not a substitute for a request for existing medical records.

This is closed-book: you must be able to state these requirements from memory.

ESI and Metadata: Preserve, Produce, and Protect

ESI includes more than visible text. Emails, attachments, texts, spreadsheets, databases, cloud files, social-media content, photographs, and system-generated information may all be responsive. Metadata may identify authors, recipients, creation dates, revision history, comments, file paths, or other embedded information. Metadata is produced when responsive and relevant within the governing discovery limits.

Under Rule 34, the requesting party may specify the form or forms in which ESI should be produced. If the request does not specify a form, the responding party may produce ESI either in the form in which it is ordinarily maintained or in a reasonably usable form. The responding party need not produce the same ESI in more than one form. That rule does not permit a conversion that strips away responsive information or makes the material unusable. If metadata matters, the request should identify the needed form, such as native files or a format preserving searchable text and embedded information.

“Not reasonably accessible” is a burden-and-cost conclusion, not a synonym for “stored somewhere inconvenient.” Under Rule 26(b)(2)(B), a party resisting production from an identified ESI source must show that the source is not reasonably accessible because of undue burden or cost. If that showing is made, the requesting party may obtain production by showing good cause; the court may impose conditions, including limits or cost allocation. Thus, inaccessible ESI is not automatically immune.

Preservation and production are separate questions. Once ESI that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and the ESI cannot be restored or replaced through additional discovery, Rule 37(e) supplies the consequence. If the loss prejudices another party, the court may order measures no greater than necessary to cure the prejudice. If the party acted with intent to deprive another party of the information’s use in the litigation, the court may presume that the lost information was unfavorable, instruct the jury to presume that result, dismiss the action, or enter default judgment.

A privilege claim can also arise from metadata or hidden portions of a file. The producing party must claim privilege and describe the withheld material sufficiently for the other side to assess the claim without revealing the protected substance.

Discovery Disputes: Protect, Compel, or Claim Privilege

A protective order and a motion to compel address opposite procedural problems. A protective order asks the court to control or limit discovery that is oppressive or improperly burdensome. A motion to compel asks the court to require discovery that the opponent improperly withheld or answered inadequately.

Under Rule 26(c), a party or person from whom discovery is sought may move for a protective order. The movant must show good cause and must certify that it has in good faith conferred or attempted to confer to resolve the dispute without court action. To protect against annoyance, embarrassment, oppression, or undue burden or expense, the court may forbid discovery, limit its scope, specify terms or a method, designate a different place or time, require a sealed filing, or enter another appropriate order. A party may not simply ignore a request because it seems objectionable; it should make a timely objection and seek protection.

Under Rule 37(a), a party seeking disclosure or discovery may move to compel after making a good-faith effort to confer or attempt to confer. The motion should identify the disputed request and explain why the response, objection, or production is inadequate. An evasive or incomplete answer is treated as a failure to answer. The rule reaches failures involving interrogatories, requests for production, inspection, and required disclosures.

If a motion to compel is granted, Rule 37(a)(5) generally requires the court to require the party or attorney whose conduct necessitated the motion to pay the movant’s reasonable expenses, including attorney’s fees, unless the movant failed to confer, the nondisclosure was substantially justified, or another circumstance makes an award unjust. If the motion is denied, the court may require the movant to pay the responding party’s expenses unless the motion was substantially justified or an award would be unjust. Partial success may produce an apportioned award.

Under Rule 26(b)(5)(A), a party withholding information as privileged or protected must expressly make the claim and describe the nature of the documents, communications, or tangible things not produced or disclosed in a way that enables the other parties to assess the claim without revealing the privileged information. A privilege log is the usual implementation. A blanket statement that “all responsive materials are privileged” ordinarily does not satisfy the rule.

If privileged material is inadvertently produced, Rule 26(b)(5)(B) governs the immediate response. The producing party must notify the recipient. The recipient must promptly return, sequester, or destroy the specified information and any copies; take reasonable steps to retrieve it if it was shared with others; and must not use or disclose it until the privilege claim is resolved. Either side may present the issue to the court, including for determination under seal.

The order of decision matters:

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A retailer receives a request for customer emails under Rule 34, but the request specifies no production format. The retailer establishes that a legacy backup archive is not reasonably accessible because of undue burden and cost, identifies that source, and produces all responsive emails from its active system in a readable form. The backup archive contains only duplicate copies, and after a good-faith conference the requesting party moves to compel the archive without showing good cause.

Practice

Which TWO statements are most accurate?

	(A) Metadata is never discoverable because it is not visible in the text of an email.	(B) After the retailer shows that the backup source is not reasonably accessible because of undue burden or cost, the requesting party must show good cause to obtain it.	(C) Because the request did not specify a form, the retailer must produce every email in native format.	(D) The retailer may produce the ESI in the form in which it is ordinarily maintained or a reasonably usable form and need not produce the same ESI more than once.	(E) The requesting party may move to compel without conferring because the request was served within the discovery period.	(F) Once the retailer identifies the backup source as not reasonably accessible, the court is forbidden from ordering production from that source.
Your answers

Decision Triggers: Tool, Data, and Motion

Practice

A plaintiff sues a defendant for injuries allegedly caused by the defendant’s conduct. The plaintiff shows that the defendant’s physical condition is directly in controversy and presents specific reasons why an examination is necessary. The plaintiff asks the court to order a physical examination of the defendant under Rule 35. What is the best result?

A defendant accidentally produces an email containing privileged attorney-client communications and promptly notifies the plaintiff of the mistake. What must the plaintiff do while the privilege claim is being resolved?

A plaintiff serves interrogatories, and the defendant objects to every question as privileged without describing any withheld material. After attempting in good faith to confer, the plaintiff wants court relief. Which is the best step?

High-Yield Points - ⚡ Biggest Takeaways

Match each discovery tool to its target and legal consequence before analyzing compliance. Treat inaccessible ESI as conditionally protected, not permanently immune: good cause can reopen the source. A privilege claim requires an assessable description, and a motion to compel requires good-faith conferral.

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Practice Questions: Discovery tools, ESI and discovery motions

1. Using only the supplied file and legal resources, prepare a persuasive opposition outline addressing Titan Manufacturing's renewed motion for judgment as a matter of law and alternative motion for a new trial. Analyze preservation, the distinct standards for each motion, the evidentiary record, the proper scope of any new trial, and the steps counsel should take to protect Bell's position on appeal.

2. Using only the supplied file and legal resources, prepare a persuasive motion and supporting memorandum requesting the most appropriate route to a final appealable judgment on Rowan's resolved claim. Address finality, separability, reasons for and against certification, preservation, and any separate relief needed to protect Summit during appellate proceedings.

3. Using only the supplied file and legal resources, prepare an objective memorandum assessing the preclusive effect of the prior judgment on Metro Workspace's new action and recommending Harbor's most appropriate procedural response.

7. A pedestrian sued a delivery company in federal court for negligence after one of the company's vans struck her in a crosswalk. After discovery, the company moved for summary judgment and submitted an affidavit from the driver stating that the traffic signal was green for the van. The pedestrian submitted deposition testimony from an eyewitness who stated that the signal was red and that the driver was looking at a phone. Both witnesses had a clear view of the intersection, and the governing negligence law is undisputed. The company argues that its driver gave a more detailed account and has a stronger memory than the eyewitness. Is the court likely to grant the motion?

A. Yes, because a court may credit the more detailed testimony when both witnesses claim firsthand knowledge.
B. No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve.
C. Yes, because testimony from a party's employee is entitled to greater weight than testimony from an uninvolved observer.
D. No, because summary judgment is unavailable whenever a negligence claim turns partly on witness testimony.

Show answer

Answer: B. No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve.

No, because the conflicting firsthand accounts create a genuine dispute that a factfinder must resolve. - The driver said the signal was green, while the eyewitness said it was red and the driver was looking at a phone, creating a genuine dispute of material fact about negligence. - Because both witnesses had a clear view, the court cannot decide whose account is more credible on summary judgment. Yes, because a court may credit the more detailed testimony when both witnesses claim firsthand knowledge. - The driver’s greater detail and asserted stronger memory do not let the court weigh competing testimony on summary judgment. - Those arguments belong to the factfinder, which must resolve the conflicting accounts. Yes, because testimony from a party's employee is entitled to greater weight than testimony from an uninvolved observer. - The driver’s status as a company employee gives his affidavit no special weight over the eyewitness’s deposition testimony. - Both accounts concern what happened at the intersection, so the court cannot prefer one merely because of the witness’s relationship to the company. No, because summary judgment is unavailable whenever a negligence claim turns partly on witness testimony. - Negligence claims can be resolved by summary judgment when the evidence presents no genuine dispute of material fact. - Denial is warranted here because the witnesses conflict about the signal and the driver’s conduct, not because the claim involves witness testimony.

8. A customer sued a grocery store in federal court after slipping and falling on a wet floor near the produce section. The customer testified at her deposition that no warning sign was posted and that a nearby employee was texting on his phone instead of watching the area. The employee submitted a declaration stating that a warning sign was in place, that the customer was jogging through the aisle, and that he was not using his phone. The store's security video shows the fall but does not clearly show whether a sign was present or what the employee was doing with his hands. After discovery closed, the store moved for summary judgment and argued that the employee's detailed declaration was more reliable than the customer's testimony. Neither side objected to the admissibility of the cited evidence. Is the court likely to grant the motion?

A. Grant summary judgment because the employee's sworn testimony is more credible than the customer's deposition testimony.
B. Grant summary judgment because the customer bears the burden of proving negligence at trial.
C. Deny summary judgment only if the customer submits evidence conclusively proving that no warning sign was posted.
D. Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury.

Show answer

Answer: D. Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury.

Deny summary judgment because the conflicting testimony creates a genuine dispute of material fact for the jury. - The customer and employee give conflicting accounts of the warning sign and the employee’s conduct, facts relevant to whether the store acted negligently. - Because the video does not resolve those conflicts, the court must view the evidence in the customer’s favor rather than decide whose account is more credible. Grant summary judgment because the employee's sworn testimony is more credible than the customer's deposition testimony. - The employee’s declaration and the customer’s deposition are both evidence the court may consider; a declaration is not inherently more credible. - Deciding which witness to believe would improperly resolve a credibility dispute at summary judgment. Grant summary judgment because the customer bears the burden of proving negligence at trial. - The customer does bear the trial burden, but her deposition testimony supplies evidence supporting her account. - That burden does not allow the court to disregard her testimony in favor of the employee’s conflicting declaration. Deny summary judgment only if the customer submits evidence conclusively proving that no warning sign was posted. - The customer need not conclusively prove the absence of a sign to defeat summary judgment. - Her testimony that no sign was posted conflicts with the employee’s declaration, and the video does not settle the issue.

9. A consumer filed a products-liability action in federal court based solely on diversity jurisdiction. The consumer demanded a jury trial. State substantive law supplies the elements of the claim and recognizes assumption of risk as a defense. A state statute directs judges to decide disputed facts concerning assumption of risk before trial and bars submission of that defense to a jury. Federal practice, implementing the federal jury-trial right, assigns genuinely disputed factual issues on legal claims to the jury. The manufacturer asks the federal judge to follow the state statute and decide the disputed defense facts. The consumer argues that the federal allocation applies. Which of the following best states how the court should resolve the issue?

A. Apply the state rule because state law governs every issue closely connected to the elements of a state-law claim.
B. Apply the state rule because federal courts must use state procedures whenever they could affect litigation outcomes.
C. Apply the federal practice only if the manufacturer proves that the state rule was designed to discriminate against federal litigation.
D. Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court.

Show answer

Answer: D. Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court.

Apply the federal practice because federal jury-trial law governs the allocation of functions between judge and jury in federal court. - State law defines assumption of risk as a defense to the consumer’s claim. - Federal jury-trial law governs who decides genuinely disputed facts on a legal claim in federal court, so the jury decides those defense facts. Apply the state rule because state law governs every issue closely connected to the elements of a state-law claim. - The state-law source of the defense does not make its judge–jury allocation rule substantive. - The court applies state law to the defense’s elements, but federal law to the allocation of factfinding. Apply the state rule because federal courts must use state procedures whenever they could affect litigation outcomes. - Having the judge rather than the jury decide disputed defense facts could affect the outcome, but outcome effect alone does not control. - The federal interest in preserving the jury’s factfinding role on legal claims supports applying federal practice. Apply the federal practice only if the manufacturer proves that the state rule was designed to discriminate against federal litigation. - Federal jury-trial practice does not depend on proof that the state statute was intended to discriminate against federal litigation. - The disputed question is who decides the defense facts, not why the state adopted its rule.

Flashcards: Discovery tools, ESI and discovery motions

1. When may a federal court grant judgment as a matter of law (JMOL), and what is required for renewed JMOL after the verdict?

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Under Rule 50, JMOL is proper after a party has been fully heard when no legally sufficient evidentiary basis permits a reasonable jury to find for that party. A renewed JMOL motion generally requires a prior Rule 50(a) motion on the same grounds and must be filed within 28 days after judgment.

2. What is the difference between a challenge for cause and a peremptory challenge in jury selection?

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A challenge for cause requires a showing that the prospective juror cannot be impartial or is otherwise disqualified, and the number is unlimited subject to the court’s ruling. A peremptory challenge permits removal without stating a cause, but it may not be used discriminatorily under Batson.

3. What is the effect of a federal pretrial order?

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The pretrial order controls the subsequent course of the action unless the court modifies it to prevent manifest injustice. It supersedes the pleadings as the blueprint for trial and identifies the issues and evidence to be presented.

4. When must a party demand a jury trial in federal court, and what is the consequence of failing to do so?

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A party must demand a jury in writing no later than 14 days after the last pleading directed to the issue is served. Failure to timely demand generally waives the jury right, although the court may grant a jury trial on motion if no substantial prejudice results.

5. What are the principal purposes of a federal Rule 16 pretrial conference?

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The court may establish deadlines, narrow the issues, amend the pleadings, obtain admissions, address discovery and disclosure, resolve motions, discuss settlement, and formulate a trial plan. The conference may also control the sequence and conduct of trial.

6. What is the federal standard for granting summary judgment?

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The court must grant summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court views the evidence and draws reasonable inferences in favor of the nonmoving party.

7. What does Batson prohibit during jury selection?

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Batson prohibits using peremptory challenges to exclude jurors because of race, ethnicity, or sex. The objecting party must show a prima facie inference of discrimination, the striking party must give a race- or sex-neutral explanation, and the court determines whether purposeful discrimination occurred.

8. What is the federal court’s duty regarding jury instructions and objections to them?

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The court must inform the parties of its proposed instructions and allow them to object before the jury retires, stating the grounds for each objection. A party generally waives an instructional error by failing to make a timely, specific objection, subject to plain-error review.

9. What is the federal rule for the number and unanimity of jurors in a civil trial?

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A federal civil jury must have between 6 and 12 members, as specified by the court, and the verdict must be unanimous unless the parties stipulate otherwise. The jury must have at least six members to return a valid verdict.

10. When may a court modify a pretrial order?

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Under Rule 16(e), modification is allowed only to prevent manifest injustice, considering factors such as the party’s diligence, prejudice to the opposing party, and the importance of the proposed change.