Civil Procedure · Discovery

high frequency

MBE Civil Procedure: Discovery

A comprehensive guide to understanding the rules and principles of discovery in civil procedure as tested on the MBE.

Overview

Discovery is a critical phase in civil litigation where parties obtain information and evidence from each other prior to trial. The Federal Rules of Civil Procedure govern discovery, emphasizing the principles of relevance, proportionality, and the ability to obtain information not privileged. Discovery tools include interrogatories, document requests, depositions, and requests for admission, and understanding how to effectively utilize these tools can significantly impact the outcome of a case.

On the MBE, discovery questions often focus on procedural rules, the appropriate use of discovery devices, issues surrounding privilege and work product protection, and the consequences of failing to comply with discovery obligations. Examinees must recognize the nuances in rules governing the scope of discovery, as well as the potential remedies for discovery violations, including motions to compel and sanctions. Mastery of these concepts is essential for success on the exam.

Key Rules
  1. Rule 26: General Provisions Governing Discovery
  2. Rule 30: Depositions by Oral Examination
  3. Rule 33: Interrogatories to Parties
  4. Rule 34: Production of Documents and Things
  5. Rule 36: Requests for Admission
  6. Rule 37: Failure to Make Disclosures or Cooperate in Discovery
Common Question Patterns
  • Questions assessing the appropriateness of specific discovery requests
  • Questions about the scope and limits of discovery
  • Questions related to privileges and protections during discovery
  • Questions about remedies for discovery disputes, including sanctions
  • Questions on the timing and sequence of discovery motions
Practice Questions

1. During a deposition, a witness refuses to answer a question arguing it is irrelevant. What should the attorney do?

A. A) Withdraw the question.

B. B) Move to compel the witness to answer the question.(Correct)

C. C) Terminate the deposition.

D. D) Rephrase the question.

Explanation: The attorney should move to compel because discovery is generally broad, and relevance is determined in the context of the lawsuit as a whole.

2. A defendant in a civil suit has not produced documents responding to a request for production after multiple requests. What is the next step for the plaintiff?

A. A) Assume the documents do not exist.

B. B) File a motion to compel production of documents.(Correct)

C. C) Dismiss the case.

D. D) Wait another 30 days.

Explanation: The plaintiff is entitled to seek a motion to compel if the defendant fails to comply with discovery requests.

3. Which of the following is NOT a valid ground to object to a request for admission?

A. A) The matter is not relevant.

B. B) The matter is a genuine issue of material fact.(Correct)

C. C) The request is overly broad.

D. D) The request seeks legal conclusions.

Explanation: A request for admission can only be denied on specific grounds. A matter cannot be denied just because it involves a genuine issue of material fact.

4. In a case involving claims of fraud, the plaintiff deposes the defendant and asks about communications with a third-party that are related to the fraud. The defendant claims attorney-client privilege. What should the plaintiff do?

A. A) Accept the privilege claim.

B. B) Demand production of the documents.

C. C) Challenge the privilege claim in court.(Correct)

D. D) Withdraw the question.

Explanation: The plaintiff may challenge the privilege claim if the communication pertains to future crimes or fraud, which is an exception to attorney-client privilege.

5. A party served interrogatories to a propounding party, but did not receive a response within the 30-day time limit. What can the propounding party do?

A. A) File a motion for summary judgment.

B. B) Move to compel a response to the interrogatories.

C. C) Assume the questions are admitted.(Correct)

D. D) Seek sanctions against the responding party.

Explanation: When a party fails to respond to interrogatories, the other party can consider the matter admitted and may also seek a motion to compel.

Test-Taking Tips
  • Read questions carefully to distinguish between relevancy and privilege issues.
  • Familiarize yourself with the specific rules of discovery and the corresponding procedures.
  • Identify the appropriate discovery method needed for different scenarios presented in questions.
  • Consider the implications of discovery violations and the potential remedies.
  • Practice recognizing the subtleties in the timing and sequence of discovery actions.

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