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Civil Litigation, Chs. 8, 9, and 10 Fall 24

Any of these questions could be an essay question, including hypotheticals that require applying these principles.
Horizontales
The factors to be considered when an attorney must choose among discovery methods include considering the expenses involved, the time available, and which method is best suited to obtain the particular ___ in question.
FRCP 33(d) provides that ”if the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business ___ (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the ___ that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the ___ and to make copies, compilations, abstracts, or summaries.”
In most jurisdictions, interrogatories contain: Caption; Title—identifies the party serving the interrogatories, the party responding, and whether it is the first set, second set, etc. of interrogatories; ___ paragraph—which by tradition usually states, “Pursuant to Rule 33 of the Federal Rules of Civil Procedure, you are to answer…”; Definitions; Instructions; Specific interrogatories; Signature; Certificate of service.
Pursuant to FRCP 30, the ___ of deposition must set out the date, time, and place of the deposition, the name of the attorney conducting the deposition, and the name and address of the person whose deposition is to be taken.
The ___ of interrogatories are to obtain information on the basic facts in a case, including any other people who may be involved in the lawsuit; to determine the party’s contentions and to locate relevant documents; to learn the identities of both lay and expert witnesses that the other party intends to call to the stand at trial; to narrow the issues and facts in preparation for trial; to impeach a witness at the time of the trial; and to facilitate a settlement of the case. (Describing these would be a good essay question.)
___ is the legal process by which the parties to a lawsuit search for and gather facts relevant to the case; rule-governed process of information exchanged between the parties to a lawsuit using established techniques.
Several of the ___ of discovery include: to prevent one of the parties from winning the lawsuit by surprise or trickery; to determine the truth or falsity of the alleged facts that form the basis of the lawsuit; to examine the facts and weigh the advisability of proceeding with the case or settling early; to preserve testimony that might be lost should a witness disappear or become incapacitated or should records be lost or destroyed; to impeach the credibility of a witness should that witness offer testimony at trial that contradicts his or her earlier statements made during discovery. (Describing these would be a good essay question.)
New Federal Rule of Evidence 502, necessitated by the extensive use of electronically stored information (ESI), protects against the accidental waiver of the attorney–client privilege, the work product privilege, or both.
The scope of allowable discovery under the Federal Rules of Civil Procedure includes evidence relevant to the subject matter of the case and evidence that is reasonably ___ to lead to admissible evidence.
Interrogatory answers must be supplemented when a party obtains information that shows a previous response was incorrect when made, or the response, though correct when made, is ___ longer true and failure to amend would amount to “knowing concealment.”
Under FRCP 26(a)(2), at least 90 days before the trial date, the parties must disclose to one another the identity of any person who may be called to testify at trial as an ___ witness. Along with the identity of the ___, a copy of a written report prepared and signed by the witness should also be supplied.
To satisfy FRCP 26(b)(5) requirement that objections based on privilege must include a description of the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing the info, will enable the other party to assess the applicability of the privilege or protection is best complied with by producing a privilege ___ with the required information regarding the information withheld.
FRCP 26(a)(1)(A) requires that, at the beginning of the case, within 14 days of the parties' attorneys' meet-and-confer session, each party must provide to the other party their ___, including, among other things, 1. the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information 2. a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment, 3. a computation of damages, and 4. a copy of any applicable insurance policy.
Some disadvantages of the deposition discovery method include: They can be inconvenient. They can be expensive and time consuming. The deposition allows deponents to rehearse their testimony before the trial.
Some ___ of taking a deposition over using another method of discovery include: A deposition gives the attorney taking the deposition the opportunity to see how well a witness or opposing party will perform on the witness stand. The deposition commits a deponent to one version of the facts. The deposition can be used to preserve the testimony of a witness who might be unavailable to testify at trial. The attorney defending the deposition can see how well her client reacts to questions under pressure.
Some ___ of interrogatories over other discovery methods are: they are simple, inexpensive, and efficient; there’s no need to schedule a special session convenient to all those involved, avoiding logistical problems associated with depositions; Interrogatories can be much more thorough than a deposition; They must be answered and verified by the party. The verification process prevents responses such as “I don’t recall,” or “I don’t know,” which are often used in depositions; The answering party has a duty to obtain the answer to an interrogatory if that information is either in the possession or the control of that party; The responding party also has the duty to provide the identity of the person who does have custody of a document if the party does not have it; Interrogatories may also be successful in deterring the responding party from hiding behind a corporate structure and refusing to disclose requested information; Interrogatories complement and enable efficient use of other discovery techniques. (They can be used to determine the identities of future deponents. They may also reveal documents that should be included in a subsequent request for production of documents.)
Historically, the ___ of discovery is carried out by the party who must retrieve the evidence (the party responding to a particular discovery request), but in recent years courts have altered this rule with regard to costly ESI production.
Five ___ practices an attorney and attorney’s staff must guard against in the discovery process include: (i) to stop a party from obtaining evidence; (ii) to destroy evidence; (iii) to falsify evidence; (iv) to make an unwarranted discovery request; and (v) to request more information than is really necessary for the case.
The parties have a duty to ___ their disclosures where the party learns that in some material respect the information disclosed is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
Pursuant to FRCP 26(a)(3), at least 30 days before trial the parties must file and serve on the other party their ___ disclosures, including their witness and exhibit lists.
Verticales
Interrogatories designed to prepare for a document production request for ___ should include requests for descriptions of: the actual nature of the party’s computer system; the configuration of any networks; information on any upgrades, equipment changes, and reformatting; the details of any policies that mandate the preservation or elimination of certain records; information concerning any backup processes in use to save data; a description of the party’s e-mail system; and the names and responsibilities of all IT experts, their assistants, and interns involved in maintaining or servicing the party’s computer system.
A discovery method in which written questions are served on an opposing party, and the opposing party must answer these questions in writing and under oath.
Interrogatories addressed to an individual person must be answered by that individual in writing under ___.
In preparation for a deposition, the paralegal may be asked to prepare a file of any ___ written or controlled by the client.
There are various ___ that work as limitations on the information that must be produced in discovery.
One important responsibility of the paralegal after a deposition is to prepare a deposition summary, sometimes called a deposition abstract, for the attorney's later ___ in preparation for and during the trial.
During an oral deposition, a paralegal has two main duties: taking ___ and evaluating the performance of the witness.
Interrogatories addressed to a corporation may be answered by any officer, agent, or employee who has the requested ___.
The method of discovery in which the testimony of a witness or a party is taken under oath outside the courtroom before a court reporter who records in a transcript the questions and answers.
___ of interrogatories as compared to other discovery method include that: they are limited to the parties to a lawsuit; they may not eliminate the need to take depositions at a later date; they lack spontaneity, as a party responding to a set of interrogatories has the time to draft self-serving answers; they do not allow for the immediacy of any follow-up questions; they may help the opposing attorney by motivating them to begin the preparation of their case earlier than they might ordinarily be inclined to proceed; they can alert the opposition to the direction of your case.
___ for refusing to follow an order to compel discovery include a dismissal of the action, the granting of a default judgment, the granting of reasonable expenses including attorney’s fees caused by the failure to cooperate, an instruction to the jury that they may draw adverse inferences regarding what the missing information would have proved, and a contempt of court ruling against the noncomplying party.
The party or nonparty witness who is questioned during a deposition is called the ___.
Pursuant to FRCP 33, unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than ___ written interrogatories.
If during a deposition an ___ to the form of the question is not made contemporaneously, at the time of the question during the deposition, the ___ is waived. This is because you need to give the questioner the opportunity to reform, correct the question. An ___ to the form of the question may include an ___ that the question is leading, argumentative, confusing, prejudicial, compound, lack of foundation, calls for speculation.
If the responding party refuses to answer an interrogatory, or provides answers that are incomplete, unclear, evasive, or nonresponsive, pursuant to FRCP 37, the requesting party may file a motion to ___.
The specific ___ of interrogatories typically asked include: Interrogatories that identify the people with knowledge of the facts underlying the case; Interrogatories that establish facts or lead to the discovery of facts (The who, what, when, where and how); Interrogatories that identify documents concerning the facts underlying the case; Interrogatories that identify contentions (Asking the basis of the opposing party’s allegations, denials, and any defenses.)
Most parties voluntarily cooperate with the discovery process because each side knows that ___ attempt to disrupt discovery may result in a similar attempt by the other side, because the court disapproves of uncooperative attitudes, and because those parties who refuse to cooperate face severe sanctions from the court.