Discovery study questions I: scope of discovery

FRCP 26 – Scope of discovery

  1. What is the scope of discovery under Rule 26(b)(1)?
  2. If something is not admissible in court, can it still be discovered? See 26(b)(1).
  3. What is the “proportionality” requirement in Rule 26(b)(1)? How does it differ, if at all, from the limitation guidelines in Rule 26(b)(2)(C)? For additional guidance, see the 2015 comments to the amendments to Rule 26, available here, pp. 16-25.

Attorney-Client Privilege & Work Product Doctrine:

  1. Provide a definition of the attorney-client privilege and the work product doctrine. Distinguish the purposes of the two doctrines.
  2. When the client is a corporation, how do you determine whether attorney conversations with employees are privileged?
  3. When is attorney-client privileged material discoverable? When is work product discoverable?
  4. Can the work of a non-lawyer investigator be treated as work product under Rule 26(b)(3)? Under Hickman?
  5. Provide examples of things that would be: a) protected as work product, but not under the attorney-client privilege; and b) protected under the attorney-client privilege, but not the work product doctrine.
  6. Can a lawyer use the work product doctrine to refuse to give a copy of a signed statement to the witness or opposing party who signed the statement? See Rule 26(b)(3).
  7. How does a party assert a privilege or claim of work product? See Rule 26(b)(5).
  8. If privileged or work product information is erroneously disclosed, can it be recalled? See Rule 26(b)(5). Does Rule 26(b)(5) determine whether the privilege or protection for such information is preserved or lost?

Updated Feb. 5, 2016