Multiple Choice from the 2008 CivPro Exam

Updated:

2.         P is suing D in federal court for state law fraud. X is a crucial witness to the fraud. Which of the following is most likely to satisfy the federal discovery rules?

a.         P serves an interrogatory on X, under Fed. R. Civ. P. 33, asking X to recount what he remembers of the events surrounding the fraud.

b.         P serves a document request on X, without a subpoena, , under Fed. R. Civ. P. 34, asking for any non-privileged documents that X might have concerning the fraud.

c.         P serves a request for an admission on X, under Fed. R. Civ. P. 36, asking X to admit that he knew that D’s statements were false when made.

d.         P serves a document request on D, without a subpoena, under Fed. R. Civ. P. 34, asking D for a document the sole content of which is hearsay and therefore inadmissible at trial. 

e.         When examining D’s response to P’s document request, P is surprised to find that D has refused to turn over certain requested materials on the grounds that they are covered by the attorney-client privilege. P thinks that D’s objection is bogus and immediately brings a motion to compel disclosure.

 

ANSWER

a.         P serves an interrogatory on X, under Fed. R. Civ. P. 33, asking X to recount what he remembers of the events surrounding the fraud.

Wrong. Interrogatories may not be served on non-parties.

b.         P serves a document request on X, without a subpoena, under Fed. R. Civ. P. 34, asking for any non-privileged documents that X might have concerning the fraud.

Wrong. A subpoena duces tecum is needed to get documents from a non-party.

c.         P serves a request for an admission on X, under Fed. R. Civ. P. 36, asking X to admit that he knew that D’s statements were false when made.

Wrong. Admissions may not be requested of non-parties.

d.         P serves a document request on D, without a subpoena, under Fed. R. Civ. P. 34, asking D for a document the sole content of which is hearsay and therefore inadmissible at trial. 

Correct. One can request documents, without a subpoena, from a party and the fact that the content of the document requested is inadmissible hearsay does not mean that it is not within the scope of discovery, provided that the document appears “reasonably calculated to lead to the discovery of admissible evidence.” FRCP 26)b)(1).

e.         When examining D’s response to P’s document request, P is surprised to find that D has refused to turn over certain requested materials on the grounds that they are covered by the attorney-client privilege. P thinks that D’s objection is bogus and immediately brings a motion to compel disclosure.

Wrong. A motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” FRCP 37(a)(1). That requirement could not have been satisfied here.