Helix BBQ: Civil Procedure- Pretrial Procedures Discovery Rules with Explanations

Which of the following is a party’s strongest argument against complying with an opposing party’s request to produce electronically stored information?

D.The party cannot reasonably access the information without unduly burdening the party.

Solution: The correct answer is D.

Answer option D is correct. A party need not produce electronically stored information if the source of the information is not reasonably accessible because of undue burden or cost. In such a case, however, the court may order production upon a showing of good cause by the opposing party and set specific conditions for discovery (Rule 26).

A court may enter a default judgment against a defendant for losing discoverable electronically stored information in the defendant’s possession, provided that the court finds which of the following?

B.That the defendant acted with intent to deprive the opposing party of the information.

Solution: The correct answer is B.

Answer option B is correct. If a party loses discoverable electronic stored information because it failed to take reasonable steps to preserve it, and the data cannot be restored or replaced, the court may order measures necessary to cure the prejudice to the opposing party from the loss of that information. However, where the court finds that the party acted with the intent to deprive the opposing party of the use of that information, the court may presume that the lost information was unfavorable to the party who acted with such intent and either: (1) instruct the jury that it may or must presume the information was unfavorable to that party, or (2) dismiss the action or enter a default judgment against that party (Rule 37).

 If a party fails to identify a witness as required by the discovery rules, which of the following is NOT a sanction that the court may impose?

B.Find the party in contempt of court.

Solution: The correct answer is B.

Answer option B is correct. Failure to identify a witness as required by the discovery rules may lead the court to: (1) disallow the party to use that information or witness in a motion, at a hearing, or at trial (the default sanction), unless the party can show that the failure to do so was substantially justified or harmless; (2) order payment of reasonable expenses, including attorney’s fees and costs; (3) inform the jury of the party’s failure; and/or impose other sanctions for violating the discovery rules. Contempt of court would be an available sanction only if the party fails to comply with a court order.

 Which of the following is NOT a proper basis for a party opposing disclosure to file a motion for a protective order?

C.The requested discovery pertains to a matter of no substantial importance.

Solution: The correct answer is C.

Answer option C is correct. A party opposing disclosure may file a motion for a protective order that argues the requested discovery is outside the scope of mandatory disclosure, subject to privilege, or an abuse of the discovery process.