302: Listen and Learn -- More on Discovery (Civ Pro)

Episode Transcript
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Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today, as part of our "Listen andLearn" series, we're discussing
Civil Procedure - specifically, thefollowing topics related to discovery:
motions to compel, interrogatories,and physical/mental examinations.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study

(00:24):
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.

(00:44):
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
Hello, and welcome back to the"Listen and Learn" series from
the Bar Exam Toolbox podcast.
Today we're discussing Civil Procedure.
And specifically we are, again,diving into the topic of discovery.

(01:08):
In this podcast, we will discussspecific discovery topics of
motions to compel, interrogatories,and physical/mental examinations.
First off, we want to let you know thatwe already have a couple of "Listen and
Learn" episodes covering discovery topics.
Those episodes cover the scope ofdiscovery and the work-product privilege,
and the additional discovery topics ofinitial disclosures, Rule 26(f) "meet

(01:31):
and confer" conferences, and depositions.
Be sure to check out those twoexcellent episodes, as they will
serve as great complements andbuilding blocks for this podcast.
We will link to them in the show notes.
As a quick refresher, in a civil lawsuit,discovery occurs before the trial begins,
as the attorneys prepare for trial.

(01:52):
It is the process through which theparties exchange information with each
other, especially about evidence andwitnesses they may present at trial.
But not everything is discoverable.
Civil procedure provides a set ofrules so each party knows what they
must provide and what they do nothave to provide to the opposing party.
So, let's dive into our first discoverytopic, which is interrogatories.

(02:16):
Interrogatories are governed bythe Federal Rule of Civil Procedure
33, and they are written questionssent by one party to another,
which the responding party mustanswer in writing and under oath.
An interrogatory may relateto any discoverable matter.
As a short refresher on the scope ofdiscoverable information in federal

(02:37):
court, a party in a civil action mayobtain discovery of all non-privileged
information that is, [1] relevantto any party's claim or defense; and
[2] proportional to the needs of thecase, considering factors such as the
importance of the issues at stake,the amount in controversy, the party's
relative access to relevant informationand resources, the importance of the

(02:59):
discovery, and the burden expense versusthe likely benefit of the discovery.
Now let's discuss some specificrules related to interrogatories.
First, there is a limit to the numberof interrogatories for each party.
Unless leave of court is obtained,each party is allowed to serve only
25 interrogatories upon any otherparty, including all subparts.

(03:24):
Second, interrogatorieshave a timing requirement.
Unless leave of court is obtained,interrogatories cannot be served prior
to the parties' initial "meet andconfer" conference, under FRCP 26[f].
There are also specific rulesgoverning how a receiving party
may respond to interrogatories.

(03:45):
A party responding to interrogatoriesmust serve its answer and any
objections within 30 days after beingserved with the interrogatories.
Each interrogatory must be answeredseparately and fully in writing and under
oath, to the extent it is not objected to.
And each objection to an interrogatorymust be stated with specificity.

(04:06):
Any ground not stated in atimely objection is waived.
Before turning to a hypo involvinginterrogatories, let's cover one more

discovery topic first (04:15):
motions to compel.
A motion to compel is a motion that allowsa party to move for an order compelling
disclosure of a discovery response.
The motion must, [1] provide notice toall other parties and affected persons;
and [2] include a certification thatthe movant has in good faith conferred,

(04:38):
or attempted to confer, with theperson or party failing to provide
the discovery at issue in an effortto obtain it without court action.
The second requirement is commonlyreferred to as the "meet and confer"
requirement for filing a motion to compel.
Further, there are twotypes of motions to compel.
The first is a motion to compela disclosure, and the second is a

(05:00):
motion to compel a discovery response.
For motions to compel a disclosure, if aparty fails to make a required disclosure,
such as initial disclosures, pre-trialdisclosure, or expert disclosures, then
any other party may move to compel thedisclosure and for appropriate sanctions.
For motions to compel a discoveryresponse, if a party failed to make

(05:21):
a proper discovery response, such asfailing to answer a question asked at
a deposition, or failing to answer aninterrogatory, then the party seeking the
discovery may move to compel a response.
And that covers motions to compel.
Now that we have covered the requirementsfor interrogatories and motions
to compel, let's examine a hypo tosharpen our understanding of the topic.

(05:45):
This hypo is adapted from theJuly 2019 California bar exam:
"Plaintiff Pam was shopping at DefendantDiscount Grocer's store when a large
display of soda cans fell on her,bruising her head and entire body.
Following the incident, Pamfiled a complaint in federal
court against Discount Grocer fornegligently maintaining the display.

(06:06):
And she sought damages formedical expenses, pain and
suffering, and lost wages.
Accompanying Pam's complaint was a setof 26 interrogatories, which included the

following interrogatory (06:16):
'Interrogatory number 26
training manual Discount Grocer has usedin training its employees.' Discount
Grocer provided the following responseto Interrogatory number 26: 'Objection.
Exceeds the limit for thenumber of interrogatories.
In addition, the interrogatoryis premature in light of

(06:36):
the stage of the case.'
Upon receiving the response,Pam immediately filed a motion
to compel a further responseto Interrogatory number 26.
Should the federal courtgrant Pam's motion to compel?"
The answer is "no".
The court should deny Pam's motionto compel for multiple reasons.
First, the court should deny itbecause Pam failed to comply with

(06:57):
the "meet and confer" requirementfor filing a motion to compel.
Pam immediately filed her motionto compel, without first meeting
and conferring in good faithwith Discount Grocer and its
response to the interrogatory.
Second, the court should deny themotion to compel because the court
should sustain Discount Grocer'stwo objections to the interrogatory.
Discount Grocer properly objectedto Interrogatory number 26 on the

(07:21):
grounds that it exceeds the limiton the number of interrogatories
that may be served by a party.
Each party is only permittedto serve 25 interrogatories.
So, Interrogatory number26 exceeded that limit.
In addition, Discount Grocer properlyobjected to the timing of Interrogatory
number 26 on the ground that it wasserved at a premature stage of the case.

(07:45):
Interrogatories cannot be served priorto the parties' initial conference, under
Federal Rule of Civil Procedure 26[f].
The fact pattern states that Interrogatorynumber 26 was attached to Pam's
complaint at the start of the lawsuit.
Thus, both of Discount Grocer's objectionsto the interrogatory were proper.

(08:05):
Before we leave this hypo, it isworth noting that Discount Grocer also
might have objected to Interrogatorynumber 26 on the grounds that it was
overbroad because it broadly soughtcopies of every training material
Discount Grocer has used, insteadof being limited to training manuals
related to erecting product displays.

(08:25):
However, because Discount Grocer didnot raise this specific objection
in its response, the district courtcould not have considered it in
deciding Pam's motion to compel.
Each objection to an interrogatorymust be stated with specificity,
and any ground not stated ina timely objection is waived.
Now let's turn to our final discoverytopic for today, which is requests

(08:50):
for physical or mental examination.
In federal court, a court may ordera party to submit to a physical or
mental examination by a suitablelicensed or certified examiner
if three requirements are met.
First, a motion is made withnotice to all other parties
and the person to be examined.
Second, the person's physical ormental condition is in controversy.

(09:13):
And third, good cause is shown.
The court's order requiring theexamination must specify the time,
place, manner, conditions, andscope of the examination, as well
as the person who will perform it.
Now that we have covered therequirements for requests for physical
and mental examinations, let'sexamine a hypo related to that topic.

(09:33):
This hypo was adapted from a question fromthe February 2023 California bar exam:
"Defendant Drop Tires manufacturers andinstalls specially coded automotive tires.
Drop Tires advertises thatits tires will not go flat for
the first 7,000 miles of use.
Plaintiff Parker purchased fournew tires from Drop Tires and had

(09:55):
them installed by the company.
Parker drove 100 miles on the tires, andthen one tire went flat causing Parker
to swerve and crash into another car.
Parker was not physicallyinjured in the accident.
Following the accident, Parker filed andproperly served a complaint in federal
court against Drop Tires, alleging claimsfor breach of warranty and negligent

(10:17):
installation and manufacture of the tires.
In his complaint, Parker alleged that hesuffered property damages and emotional
distress as a result of the accident.
During the discovery phase of thecase, after meeting and conferring
with Parker, Drop Tires filed andserved a motion to compel for Parker
to submit to a physical examination.

(10:37):
Should the court grant DropTires' motion to compel?"
The answer is "no".
Here, Drop Tires is specificallyrequesting for Parker to submit
to a physical examination.
In order to be entitled to suchan examination, Parker's physical
condition must be in controversy.
The facts in the hypo statethat Parker was not physically
injured in the accident.

(10:57):
In addition, Parker did notseek any damages for physical
injuries in his complaint.
He only sought property damagesand emotional distress damages.
Therefore, Parker's physical conditionis not at controversy in the case.
Because Parker's physical conditionis not at issue, the court
should deny Drop Tires' motion tocompel the physical examination.

(11:18):
Before we finish with this hypo, it isworth noting that had Drop Tires filed
a motion to compel Parker to submit toa mental examination, that motion would
likely have been granted by the court.
The fact pattern explains thatParker is seeking emotional distress
damages as a result of the accident.
Therefore, unlike his physicalcondition, Parker's mental condition

(11:41):
is in controversy in the case.
And that wraps up our discussion of thediscovery topics of interrogatories,
motion to compel, and requests forphysical and mental examination.
Hopefully you found these hypos helpfulexamples of how to work through any
discovery-related question on your exam.
If you enjoyed this episode of theBar Exam Toolbox podcast, please take

(12:03):
a second to leave her a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus on our website contact
form at BarExamToolbox.com.

(12:23):
Thanks for listening, and we'll talk soon!

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