Discovery Tools
Discovery is the phase where the parties pry the facts out of each other before trial, and the outline gives you three primary tools to keep straight.
14. Discovery Tools
Primary discovery tools include oral depositions, interrogatories, and requests for production.
- Oral depositions involve opportunities for all parties to examine a witness under oath.
- Interrogatories are written questions that can be posed only to parties. Parties answer these questions under oath and must respond as completely as possible based on a reasonable investigation.
- Requests for production can reach documents, tangible things, and electronically stored information.
- When responding to any of these forms of discovery, parties must raise any objections based on privilege and withhold the information until a judge adjudicates the privilege claim. If they provide information without asserting a privilege, they waive the privilege.
- If a party fails to make disclosures or cooperate in discovery, the court may order sanctions. Those sanctions are distinct from those that may be issued under Rule 11 (concept 11).
- The Nevada FLE does not require test-takers to recall the specifics of how sanctions may be imposed for discovery violations.
- The exam does not require recall of details related to other discovery tools (written depositions, requests for inspection, requests for mental or physical examination, and admissions).
There are three primary tools, each with its own reach: depositions, interrogatories, and requests for production. A cross-cutting rule applies to all three: if you produce material without objecting on privilege grounds, you waive the privilege.
Discovery is the phase where the parties pry the facts out of each other before trial, and the outline gives you three primary tools to keep straight.
- 1Oral deposition. A witness is questioned under oath while all parties get the chance to examine that witness. The key word is witness: a deposition can reach a party or a non-party, anyone with relevant knowledge.
- 2Interrogatories. These are written questions, and here is the line that gets tested the most: interrogatories can be posed only to parties. You cannot serve interrogatories on a non-party witness. The party who receives them answers under oath, and answers as completely as a reasonable investigation allows.
- 3Request for production. This one reaches documents, tangible things, and electronically stored information. Think files, objects, and data.
Now the rule that cuts across all three. When you respond to any of these tools and you want to hold something back as privileged, you have to say so. You raise the privilege objection and you withhold the material until a judge rules on the claim. If you simply hand the information over without asserting the privilege, the privilege is gone. You waived it. Producing under protest after you object is fine; producing silently is fatal.
Finally, if a party refuses to make disclosures or refuses to cooperate, the court may order sanctions, and those discovery sanctions are a separate track from the sanctions a court can impose for frivolous filings.
You only need to know the bare fact that discovery sanctions exist; the mechanics of how they are imposed are off the table. The same goes for the other discovery devices the outline lists as excluded, such as written depositions, requests for inspection, mental or physical examinations, and admissions. Those are outside the tested universe here.
Three primary tools, three reaches: deposition reaches any witness (party or non-party), interrogatories reach only parties, production reaches documents, tangible things, and esi. The trap lives in the interrogatory-only-to-parties line.
Privilege is use-it-or-lose-it: object and withhold until a judge rules, or hand it over silently and waive it.
Producing under protest is fine; producing without objecting waives.
Sanctions exist but the mechanics do not test.
The excluded tools (written depositions, inspections, exams, admissions) are off the page, so a No that turns on one of them is a distractor.
A plaintiff wants to lock down facts known by a former bookkeeper who no longer works for the defendant company and is not a party to the suit. The plaintiff serves the bookkeeper with a set of written questions to be answered under oath and demands a complete response. The bookkeeper objects that this device cannot be used against her.
Suppose the recipient of those written questions is the defendant company itself, a party. The questions are proper, the company answers under oath, and it must respond as completely as a reasonable investigation allows. And if any answer would reveal privileged material, the company has to raise the privilege objection and withhold that piece until a judge rules; if it simply answers without objecting, the privilege is waived.
An option that misstates which tool reaches which recipient: interrogatories aimed at a non-party witness, or a deposition described as reachable only against a party, or a request to produce described as covering only paper.
Match the tool to its reach. Interrogatories run only to parties; depositions examine any witness, party or non-party; a request to produce reaches documents, tangible things, and ESI.A true but irrelevant or out-of-scope fact: an option turning on an excluded device (written deposition, inspection, mental or physical exam, admissions), on good faith, or on the specifics of how a sanction is imposed.
The tested universe is the three primary tools, the privilege-waiver rule, and the bare existence of discovery sanctions. Excluded devices and sanction mechanics are off the page.An absolute: a request to produce reaches 'anything,' a responding party must produce 'every item without exception,' or a privilege 'can never' be asserted.
The printed rules have boundaries. Privileged material is withheld after an objection, and production is defined by documents, tangible things, and ESI.An option whose falsity rests on an unprinted federal-procedure framing rather than the printed discovery scope, such as confining all sanction authority to the frivolous-filing rules.
Decide on the printed discovery rules. Discovery sanctions are a distinct track from frivolous-filing sanctions; do not import an unstated structural premise.the stem hands you a party trying to extract facts and names a specific discovery device, then either points it at the wrong recipient (interrogatories served on a non-party witness, or a claim that a deposition cannot reach a non-party), or shows a party handing over material it now wants back as privileged.
The instant you see a named tool, ask the matching question.
Is it an interrogatory?
Then the recipient must be a party.
Is it a deposition?
Then any witness, party or non-party, is fair game.
Is it a request for production?
Then it reaches documents, tangible things, and esi.
And whenever a party produced information without first objecting on privilege grounds, the privilege is waived.
If a distractor turns on an excluded tool (written deposition, inspection, mental or physical exam, admissions) or on the specifics of how sanctions are imposed, it is out of scope and you can drop it.
A plaintiff in a federal civil action wanted to obtain sworn factual answers from a former employee of the defendant company. The former employee was not a party to the lawsuit but had relevant knowledge about the events at issue. The plaintiff served the former employee with a set of written questions and demanded that she answer them in writing under oath. The former employee objected that this particular device could not properly be directed at her.
Is the former employee correct that this device may not be used against her?
A defendant in a federal civil action needed sworn testimony from a neighbor who had witnessed the events but was not a party to the suit. The defendant wanted every party to the lawsuit to have the chance to question the neighbor under oath. The plaintiff argued that a non-party witness could not be compelled to give sworn testimony in discovery at all.
Is sworn testimony from the non-party neighbor available to the defendant in discovery?
An opposing party served a request that sought internal files, a physical sample product, and the data stored on a company server. The responding company gathered the materials but argued that one category fell outside the reach of this discovery tool, contending that data kept only in electronic form on a server was not something the tool could compel.
Does this discovery tool reach the electronically stored data on the server?
A defendant responding to a discovery request had several documents it reasonably believed were protected by a privilege. Without raising any objection, the defendant simply included those documents in the materials it handed over to the opposing party. Later, realizing what it had disclosed, the defendant tried to claw the documents back and assert the privilege over them.
May the defendant still assert the privilege over the documents it produced?
Throughout a federal civil action a party repeatedly ignored proper discovery requests, refused to make required disclosures, and would not cooperate with the opposing side's legitimate efforts to obtain information. The opposing party asked the court to do something about the obstruction. The obstructing party argued that a court has no authority to respond to a failure to cooperate in discovery.
May the court order sanctions for the party's failure to cooperate in discovery?