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GOVT 407 Discovery Quiz 6 with verified solutions.
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GOVT 407 Discovery Quiz 6 with verified solutions.
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GOVT 407 Discovery Quiz 6with verified solutions
Alewife sues Dr. Perch for injuries allegedly caused by Perch’s negligence
in the course of back surgery. Her lawyer obtains a copy of the surgical
notes that indicate that Trout, a nurse, assisted at the operation. She
contacts Trout to interview him about the case, but Trout refuses to speak
to her.
a. Is Trout within his rights to refuse to speak with Alewife’s lawyer?
b. Since Trout refuses to cooperate, Alewife sends a set of interrogatories
to him. Must Trout respond to the interrogatories?
c. Advise Alewife as to how she can best obtain evidence from Trout.
a. Is Trout within his rights to refuse to speak with Alewife’s lawyer?
Yes, Mr. Trout is within his rights to refuse to speak with Alewife’s
attorney because he is a non-party witness and there is no type of court-
ordered discovery compelling Mr. Trout to do so.
b. Since Trout refuses to cooperate, Alewife sends a set of interrogatories
to him. Must Trout respond to the interrogatories?
No, it is not necessary for Mr. Trout to reply to the interrogatories that
were sent to him by Ms. Alewife. According to Rule 33(a), interrogatories
can be served to "any other party" and should be responded to by the
recipient. However, as Mr. Trout is not involved in the case and has not
been summoned before the court, as such, he is not obligated to answer
the interrogatories.
c. Advise Alewife as to how she can best obtain evidence from Trout.
The only way to force Trout to give testimony is to subpoena him for a
deposition: Rule 30(a)(1) authorizes a party to take the deposition of “any
person, including a party.”
A subpoena clearly authorizes Alewife to take Trout’s deposition. However,
it may be frustrating to have to get Trout’s story this way.
Things to consider:
(1) Trout may not be pleased to receive a subpoena, causing him to attend
the deposition reluctantly and with a predisposition against the deposing
party.
, (2) Additionally, Trout may not possess significant relevant information,
rendering the effort and expense of his deposition unproductive. It would
be preferable to have a casual conversation with Trout, but since
witnesses are not obligated to cooperate, a subpoena may be necessary to
compel their testimony.
(3) In some instances, taking a witness's deposition may still be necessary
to formally capture their testimony, even if they are willing to speak
informally.
You represent Dr. Perch. You have received a set of interrogatories for
Perch to answer. Interrogatory #12 asks “State whether, prior to
commencing the surgical incision in the operation in suit, you examined
the x-rays of the plaintiff’s back in her medical records.” In preparing
answers to the interrogatories, you sit down with Dr. Perch and ask her
whether she examined the x-rays prior to the surgery. She replies, “Well,
between you and me, I didn’t. It was a hectic morning, we had an
emergency surgery right before hers, and I just didn’t do it. I knew what
had to be done anyway.” As a medical malpractice defense lawyer, you
know that this testimony will severely damage Perch’s case, since any
expert will testify that good medical practice requires full review of the x-
rays prior to back surgery.
How do you answer the interrogatory?
Assume, on the facts of example 2, that Perch had examined the x-rays
two days before surgery. Could you answer “yes” to interrogatory #12?
How do you answer the interrogatory?
Under Fed. R. Civ. P. 33(b)(3), responses to interrogatories are to be
answered truthfully. M.R.P.C. Rule 3.3(a)(1) governs an attorney’s ethical
obligation in court, “…. an attorney cannot misrepresent the facts in
litigation.” Joseph W. Glannon, Examples & Explanations for Civil
Procedure 450 (8th ed. 2018). The Rule contemplates telling the truth, and
lying under oath, in answering an interrogatory, just as on the witness
stand, constitutes the crime of perjury.
Assume, on the facts of example 2, that Perch had examined the x-rays
two days before surgery. Could you answer “yes” to interrogatory #12?
Yes. There may be some ambiguity in the question, as is often the case.
However, if you interpret it broadly to encompass any time prior to the
surgery, you could potentially answer "yes" without revealing that Perch
did not review the x-rays that morning.
In the same set of interrogatories, the plaintiff asks the names of every
person who conducted any investigation of her surgical incident. Dr. Perch
tells you that she thinks someone from the hospital did an investigation,
but she has no idea who it was.
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