March 24, 2025 • 11 mins
Welcome back to the Bar Exam Toolbox podcast! This is the second of three episodes in which we review the substantive Civil Procedure law we've covered in our "Listen and Learn" series. This time we're talking about discovery, or obtaining evidence from other parties.
In this episode, we discuss:
- Scope of discovery
- Instruments for discovering information
- Discovery disputes and resolutions
Resources:
- Private Bar Exam Tutoring (https://barexamtoolbox.com/private-bar-exam-tutoring/)
- Podcast Episode 204: Listen and Learn – Scope of Discovery and the Work-Product Privilege (https://barexamtoolbox.com/podcast-episode-204-listen-and-learn-scope-of-discovery-and-the-work-product-privilege/)
- Podcast Episode 237: Listen and Learn – Discovery (Civ Pro) (https://barexamtoolbox.com/podcast-episode-237-listen-and-learn-discovery-civ-pro/)
- Podcast Episode 302: Listen and Learn – More on Discovery (Civ Pro) (https://barexamtoolbox.com/podcast-episode-302-listen-and-learn-more-on-discovery-civ-pro/)
Download the Transcript
(https://barexamtoolbox.com/episode-305-spotlight-on-civil-procedure-part-2-discovery/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today, we have another in oursubstantive spotlight series.
This one's on Civil Procedure- specifically, discovery.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:22):
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.
You can reach us via the contactform on BarExamToolbox.com,
(00:42):
and we'd love to hear from you.
And with that, let's get started.
This is substantive spotlight, wheretoday we're diving into the world
of discovery the phase of litigationwhere parties dig for facts, uncover
(01:03):
evidence, and occasionally finda few skeletons in the closet.
Think of it as legal archaeology, whereinstead of dinosaur bones, you're hunting
for smoking guns and paper trails.
Discovery isn't just aboutsatisfying curiosity.
It's the engine thatdrives litigation forward.
Did you know that the vastmajority of cases settle during
(01:24):
or right after discovery?
That's because once all cards areon the table, parties often realize
their best move is to negotiate,rather than roll the dice at trial.
Today, we're unpacking everything youneed to know about discovery for your
Civil Procedure class and the bar exam.
So first, let's start withthe scope of discovery.
Here's a fundamental question (01:45):
What information can you actually discover?
Federal Rule of Civil Procedure 26(b)(1)tells us that parties may obtain
discovery regarding any non-privilegedmatter that is, [1] relevant to any
party's claim or defense; and [2]proportional to the needs of the case.
(02:08):
Relevance here is broaderthan what you see at trial.
Information doesn't need to be admissibleto be discoverable, just reasonably
calculated to lead to admissible evidence.
It's like casting awider net when fishing.
You might throw some catches back,but you want to survey the whole area.
(02:29):
But there are limits.
Proportionality is the brakepedal on discovery requests.
Courts consider the importance ofthe issues at stake, the amount in
controversy, parties' relative accessto information, parties' resources,
the importance of the discovery inresolving issues, and whether the
burden outweighs the likely benefit.
(02:50):
Think of proportionalityas a cost-benefit analysis.
Is what you're likely to findworth the time, effort, and
expense required to find it?
Then there are privilege limitations.
Attorney-client communications?
Off limits.
Work-product doctrine?
That shields materials preparedin anticipation of litigation.
(03:12):
It's like having certainrooms in your house declared
"private" during an open house.
Visitors can look around,but some doors remain closed.
Now let's not forget about initialdisclosures - the information parties
must share without even being asked.
Under Rule 26(a), each party mustprovide the names and contact information
(03:35):
of potential witnesses, a copy ordescription of documents they may use,
computation of damages, and insuranceagreements that might satisfy a judgment.
This automatic exchange is like everyoneplacing their opening poker chips
on the table before the game begins.
It ensures a basic level oftransparency from the outset.
(03:59):
Now that we know what's discoverable,let's talk about how to discover it.
Think of discovery tools as differentinstruments in your legal orchestra
- each has a unique sound and purpose.
First up, interrogatories.
These are written questions sent toanother party who must answer under oath.
They're perfect for getting basicinformation and positions clarified.
(04:23):
But use them wisely!
Rule 33 limits you to just25 interrogatories, including
subparts, without court permission.
It's like having a limited numberof questions for a celebrity Q&A.
Make each one count.
Next, depositions - the face-to-facequestioning of witnesses under oath.
(04:44):
These are particularly powerful,because they allow for follow-up
questions and assessment of demeanor.
Under Rule 30, each deposition islimited to one day of seven hours,
and you're capped at 10 depositionsper side without court permission.
Remember, in a deposition,there's no judge present to
rule on objections [except forprivilege], making it a relatively
(05:07):
unfettered exploration of facts.
Document requests allow you to ask forrelevant documents, electronically stored
information [ESI], or tangible things inanother party's possession or control.
With the explosion of electroniccommunications, these requests
can yield thousands of emails,text messages, and files.
(05:30):
It's like asking someone to emptytheir file cabinets, hard drives,
and phone records all at once.
Don't forget about requests for admission.
These ask another party to admitthe truth of certain statements
for purposes of the pending action.
They're great for narrowing issuesand establishing undisputed facts.
(05:50):
Think of them as trying toget an agreement on the basic
pieces of the puzzle, so youcan focus on the disputed parts.
For specialized information, Rule 35allows physical or mental examinations
of parties whose condition is incontroversy, but only with court
permission and good cause shown.
This higher threshold makes sense.
(06:12):
Medical privacy is a big deal, andcourts don't want parties subjected
to unnecessary examinations.
Now, in an ideal world, discoverywould proceed smoothly, with
everyone playing by the rules.
But in reality, let'sjust say things get messy.
When parties don't comply withdiscovery obligations, the discovery
(06:34):
dispute resolution process kicks in.
Motions to compel are the discoveryequivalent of telling the teacher
that someone isn't sharing.
If a party fails to respond properlyto discovery requests, you can
ask the court to order compliance.
But first, you must meet and confer ingood faith - no running to the judge
(06:55):
without trying to work it out yourself.
On the flip side, protective orders underRule 26(c) shield parties from discovery
that causes annoyance, embarrassment,oppression, or undue burden or expense.
It's like having a referee youcan call when the other side's
discovery requests cross the line.
Electronically stored informationpresents its own challenges.
(07:19):
When litigation is reasonably anticipated,parties must take steps to preserve
relevant ESI or risk spoilation sanctions.
Accidentally deleted those emails?
Well, the court might instructthe jury to assume they
contained damaging information.
Ouch!
Speaking of sanctions, Rule 37gives courts a range of options for
(07:40):
dealing with discovery misconduct,from ordering payment of expenses, to
striking pleadings, or even enteringa default judgment in extreme cases.
The message is clear (07:51):
Take your discovery obligations very seriously.
Now, discovery isn't justabout following the rules.
It's about strategy.
Like a chess game, your opening moves canset the tone for the entire litigation.
Consider your discovery plan carefully.
What do you need to prove your case?
(08:12):
What information does theopposing party likely have?
Which discovery tools will mostefficiently get you what you need?
Timing matters, too.
Some requests make more senseearly, while others are better
after you have basic information.
Know when to push and when to compromise.
Fighting over every document might burnbridges and goodwill with the court.
(08:34):
Remember, judges don't enjoyrefereeing discovery disputes.
They want you to workthings out like grown-ups.
For bar exam purposes, when you seea discovery question, ask yourself
these questions (08:46):
Is the information sought within the scope of discovery?
Is the discovery methodbeing used properly?
Are there any privilegeor work-product issues?
Have proceduralrequirements been followed?
If there's a dispute, what'sthe proper resolution?
Let me give you a practical example.
(09:06):
Imagine a personal injury casewhere Plaintiff Pat requests all
safety reports for the past 50years from Defendant Company.
The company objects, claiming the requestis overbroad and disproportionate.
Who's right?
The court would likely find the50-year timeframe excessive, but might
order production of a more reasonableperiod, perhaps 5 to 10 years, or
(09:28):
reports related to similar incidents.
It's all about finding thatproportionality sweet spot.
Now, discovery doesn't happen in a vacuum.
It's carefully choreographedwithin the litigation timeline.
After initial pleadings, the partiesmust meet for the Rule 26(f) conference
to develop a proposed discovery plan.
(09:49):
This happens at least 21 daysbefore the Rule 16 scheduling
conference with the judge.
Initial disclosures must be madewithin 14 days after the Rule 26(f)
conference, unless the partiesstipulate or the court orders otherwise.
Most other discovery can't beginuntil after this conference,
creating a structured approachto information exchange.
(10:13):
The court's scheduling orderwill set deadlines for completing
discovery - typically months, not years.
Once that discovery cutoff datepasses, you're generally out of
luck if you still need information.
It's like a store closing - oncethe doors are locked, you
can't get back in the shop.
For a deeper dive into thesediscovery topics, check out our
"Listen and Learn" episodes.
(10:34):
We will link to them in the show notes.
Episode 204 covers the scope ofdiscovery and work-product privilege.
Episode 237 tackles initial disclosures,Rule 26(f) conferences, and depositions.
And episodes like our DiscoveryPart 2 podcast cover motions
to compel, interrogatories, andphysical and mental examinations.
(10:54):
Until next time, this is your substantivespotlight on Civil Procedure, where
discovery reveals what really happened.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave 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 are still in law school, youmight also like to check out our popular
(11:15):
Law School Toolbox podcast as well.
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 via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today, we have another in oursubstantive spotlight series.
This one's on Civil Procedure- specifically, discovery.
Your Bar Exam Toolbox hosts are AlisonMonaghan and Lee Burgess, that's me.
We're here to demystify the barexam experience, so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:22):
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.
You can reach us via the contactform on BarExamToolbox.com,
(00:42):
and we'd love to hear from you.
And with that, let's get started.
This is substantive spotlight, wheretoday we're diving into the world
of discovery the phase of litigationwhere parties dig for facts, uncover
(01:03):
evidence, and occasionally finda few skeletons in the closet.
Think of it as legal archaeology, whereinstead of dinosaur bones, you're hunting
for smoking guns and paper trails.
Discovery isn't just aboutsatisfying curiosity.
It's the engine thatdrives litigation forward.
Did you know that the vastmajority of cases settle during
(01:24):
or right after discovery?
That's because once all cards areon the table, parties often realize
their best move is to negotiate,rather than roll the dice at trial.
Today, we're unpacking everything youneed to know about discovery for your
Civil Procedure class and the bar exam.
So first, let's start withthe scope of discovery.
Here's a fundamental question (01:45):
What information can you actually discover?
Federal Rule of Civil Procedure 26(b)(1)tells us that parties may obtain
discovery regarding any non-privilegedmatter that is, [1] relevant to any
party's claim or defense; and [2]proportional to the needs of the case.
(02:08):
Relevance here is broaderthan what you see at trial.
Information doesn't need to be admissibleto be discoverable, just reasonably
calculated to lead to admissible evidence.
It's like casting awider net when fishing.
You might throw some catches back,but you want to survey the whole area.
(02:29):
But there are limits.
Proportionality is the brakepedal on discovery requests.
Courts consider the importance ofthe issues at stake, the amount in
controversy, parties' relative accessto information, parties' resources,
the importance of the discovery inresolving issues, and whether the
burden outweighs the likely benefit.
(02:50):
Think of proportionalityas a cost-benefit analysis.
Is what you're likely to findworth the time, effort, and
expense required to find it?
Then there are privilege limitations.
Attorney-client communications?
Off limits.
Work-product doctrine?
That shields materials preparedin anticipation of litigation.
(03:12):
It's like having certainrooms in your house declared
"private" during an open house.
Visitors can look around,but some doors remain closed.
Now let's not forget about initialdisclosures - the information parties
must share without even being asked.
Under Rule 26(a), each party mustprovide the names and contact information
(03:35):
of potential witnesses, a copy ordescription of documents they may use,
computation of damages, and insuranceagreements that might satisfy a judgment.
This automatic exchange is like everyoneplacing their opening poker chips
on the table before the game begins.
It ensures a basic level oftransparency from the outset.
(03:59):
Now that we know what's discoverable,let's talk about how to discover it.
Think of discovery tools as differentinstruments in your legal orchestra
- each has a unique sound and purpose.
First up, interrogatories.
These are written questions sent toanother party who must answer under oath.
They're perfect for getting basicinformation and positions clarified.
(04:23):
But use them wisely!
Rule 33 limits you to just25 interrogatories, including
subparts, without court permission.
It's like having a limited numberof questions for a celebrity Q&A.
Make each one count.
Next, depositions - the face-to-facequestioning of witnesses under oath.
(04:44):
These are particularly powerful,because they allow for follow-up
questions and assessment of demeanor.
Under Rule 30, each deposition islimited to one day of seven hours,
and you're capped at 10 depositionsper side without court permission.
Remember, in a deposition,there's no judge present to
rule on objections [except forprivilege], making it a relatively
(05:07):
unfettered exploration of facts.
Document requests allow you to ask forrelevant documents, electronically stored
information [ESI], or tangible things inanother party's possession or control.
With the explosion of electroniccommunications, these requests
can yield thousands of emails,text messages, and files.
(05:30):
It's like asking someone to emptytheir file cabinets, hard drives,
and phone records all at once.
Don't forget about requests for admission.
These ask another party to admitthe truth of certain statements
for purposes of the pending action.
They're great for narrowing issuesand establishing undisputed facts.
(05:50):
Think of them as trying toget an agreement on the basic
pieces of the puzzle, so youcan focus on the disputed parts.
For specialized information, Rule 35allows physical or mental examinations
of parties whose condition is incontroversy, but only with court
permission and good cause shown.
This higher threshold makes sense.
(06:12):
Medical privacy is a big deal, andcourts don't want parties subjected
to unnecessary examinations.
Now, in an ideal world, discoverywould proceed smoothly, with
everyone playing by the rules.
But in reality, let'sjust say things get messy.
When parties don't comply withdiscovery obligations, the discovery
(06:34):
dispute resolution process kicks in.
Motions to compel are the discoveryequivalent of telling the teacher
that someone isn't sharing.
If a party fails to respond properlyto discovery requests, you can
ask the court to order compliance.
But first, you must meet and confer ingood faith - no running to the judge
(06:55):
without trying to work it out yourself.
On the flip side, protective orders underRule 26(c) shield parties from discovery
that causes annoyance, embarrassment,oppression, or undue burden or expense.
It's like having a referee youcan call when the other side's
discovery requests cross the line.
Electronically stored informationpresents its own challenges.
(07:19):
When litigation is reasonably anticipated,parties must take steps to preserve
relevant ESI or risk spoilation sanctions.
Accidentally deleted those emails?
Well, the court might instructthe jury to assume they
contained damaging information.
Ouch!
Speaking of sanctions, Rule 37gives courts a range of options for
(07:40):
dealing with discovery misconduct,from ordering payment of expenses, to
striking pleadings, or even enteringa default judgment in extreme cases.
The message is clear (07:51):
Take your discovery obligations very seriously.
Now, discovery isn't justabout following the rules.
It's about strategy.
Like a chess game, your opening moves canset the tone for the entire litigation.
Consider your discovery plan carefully.
What do you need to prove your case?
(08:12):
What information does theopposing party likely have?
Which discovery tools will mostefficiently get you what you need?
Timing matters, too.
Some requests make more senseearly, while others are better
after you have basic information.
Know when to push and when to compromise.
Fighting over every document might burnbridges and goodwill with the court.
(08:34):
Remember, judges don't enjoyrefereeing discovery disputes.
They want you to workthings out like grown-ups.
For bar exam purposes, when you seea discovery question, ask yourself
these questions (08:46):
Is the information sought within the scope of discovery?
Is the discovery methodbeing used properly?
Are there any privilegeor work-product issues?
Have proceduralrequirements been followed?
If there's a dispute, what'sthe proper resolution?
Let me give you a practical example.
(09:06):
Imagine a personal injury casewhere Plaintiff Pat requests all
safety reports for the past 50years from Defendant Company.
The company objects, claiming the requestis overbroad and disproportionate.
Who's right?
The court would likely find the50-year timeframe excessive, but might
order production of a more reasonableperiod, perhaps 5 to 10 years, or
(09:28):
reports related to similar incidents.
It's all about finding thatproportionality sweet spot.
Now, discovery doesn't happen in a vacuum.
It's carefully choreographedwithin the litigation timeline.
After initial pleadings, the partiesmust meet for the Rule 26(f) conference
to develop a proposed discovery plan.
(09:49):
This happens at least 21 daysbefore the Rule 16 scheduling
conference with the judge.
Initial disclosures must be madewithin 14 days after the Rule 26(f)
conference, unless the partiesstipulate or the court orders otherwise.
Most other discovery can't beginuntil after this conference,
creating a structured approachto information exchange.
(10:13):
The court's scheduling orderwill set deadlines for completing
discovery - typically months, not years.
Once that discovery cutoff datepasses, you're generally out of
luck if you still need information.
It's like a store closing - oncethe doors are locked, you
can't get back in the shop.
For a deeper dive into thesediscovery topics, check out our
"Listen and Learn" episodes.
(10:34):
We will link to them in the show notes.
Episode 204 covers the scope ofdiscovery and work-product privilege.
Episode 237 tackles initial disclosures,Rule 26(f) conferences, and depositions.
And episodes like our DiscoveryPart 2 podcast cover motions
to compel, interrogatories, andphysical and mental examinations.
(10:54):
Until next time, this is your substantivespotlight on Civil Procedure, where
discovery reveals what really happened.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave 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 are still in law school, youmight also like to check out our popular
(11:15):
Law School Toolbox podcast as well.
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 via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Las Culturistas with Matt Rogers and Bowen Yang
Ding dong! Join your culture consultants, Matt Rogers and Bowen Yang, on an unforgettable journey into the beating heart of CULTURE. Alongside sizzling special guests, they GET INTO the hottest pop-culture moments of the day and the formative cultural experiences that turned them into Culturistas. Produced by the Big Money Players Network and iHeartRadio.