HYPOT HE TI CAL QUESTI ONS AND ANSWERS

DISCOVERY
CIVIL PROCEDURE II PROF. HATFIELD

1. Grant and Hayes (doing business as City Cycle) sue Harding Cycle in an Ohio federal
court over a contract dispute involving a bicycle franchise agreement. The legal basis of
the plaintiffs' claim is a violation of the Federal Franchisee Protection Act of 1962.
Plaintiffs for several years sold more bicycles in the United States than any other retailer.
Harding Cycle was plaintiffs' wholesaler, renting the store to the plaintiffs and supplying
the bikes for the plaintiffs' retail operation. The plaintiffs allege that Harding Cycle
became jealous of their success, broke the rental agreement for leasing the store, and
persuaded the manufacturer not to renew the franchise agreement with them because it
told the manufacturer that it could sell even more bicycles than City Cycle.

Following the filing of the pleadings, what information must the parties exchange with
each other under the Federal Rules?

Suggested Answer:

Under Rule 26(a), the parties must exchange several types of information using several
different schedules. The first timeline relates to information that must be exchanged at or
within fourteen days of the Rule 26(f) discovery conference. Four types of information
must be disclosed. First, the parties must disclose the name, address and telephone
number of each person likely to have discoverable information that the disclosing party
may use to support its claims or defenses, as well as the subjects of that information.
Second, each party must exchange documents, data compilations, and other tangible
things (or at least a description of them, by category and location) that each may use to
support those claims or defenses. Third, each party must provide a computation of
damage categories, including documents supporting that computation and the nature and
extent of injuries. Fourth, each party must turn over any insurance policy that may cover
any part or all of a judgment that may be entered in the case. The trial judge may direct
other disclosures. Information and documents that would be used solely for
impeachment are exempt from this mandatory disclosure.

The second type of disclosure relates to disclosure of expert testimony. Unless otherwise
ordered or by the parties' agreement, 90 days before trial all parties must disclose the
identity of any person who may testify as an expert and that expert's report, the contents
of which are described in Rule 26(a)(2)(B).

The last type of pretrial disclosures must occur thirty days before trial, and includes
(1) the name, address, and telephone number of any person who may testify at trial as a
witness; (2) testimony that the party intends to introduce in the form of a deposition; and
(3) all exhibits that the party designates as intended for introduction into evidence, as
well as exhibits intended for introduction, if needed.

2. The defendant in Question 1 sends interrogatories and a request for production of
documents to the plaintiffs. Defendant seeks information for the previous five years
about plaintiffs' business income, business and personal expenses, financial worth, tax
returns, the identities of all legal counsel employed, the advice sought from them, and
any oral and written statements about this litigation made to legal counsel by plaintiffs or
anyone else.

Upon the defendant's request, what is the obligation of plaintiffs to disclose the
information to the defendant?

Suggested Answer:

The defendant is entitled to discover all relevant, non-privileged information. Disclosure
of any irrelevant or privileged information may be resisted by a motion for a protective
order from the court, under Rule 26(c). As for privileged information, the advice sought
by plaintiffs from plaintiffs' counsel and statements made by plaintiffs to their attorney
are privileged and not subject to discovery. Plaintiffs' attorneys' identities are
discoverable, but the attorney-client privilege limits the defendant from learning anything
else from the attorneys. Information learned by the attorneys from others will not be
protected by the attorney-client privilege, but it may be protected by the attorney work
product doctrine.

The discovery of the other information sought by the defendant may be limited by the
Rule 26(b)(1) concept of relevancy. While relevancy is broader for discovery purposes
than for trial, it still has some limits. For example, some jurisdictions limit discovery of
defendants' financial information only to cases in which punitive damages are sought.
The plaintiffs may seek a protective order or they may decide to negotiate with the
defendant about the information sought, e.g., by limiting the types of information by
category and/or by time period.

3. Pete Lilly sits forlornly in his prison dormitory, thinking of happier days in Las Vegas or
selling his wares on cable television. Lilly misses playing baseball, too, and he contacts
attorney Ruben Feline about whether a lawsuit can be filed to install a baseball diamond
at the prison. Feline files a civil rights claim in federal court in Indianapolis against the
United States Bureau of Prisons, seeking to require prison officials to institute a baseball
rehabilitation training program at Lilly's prison. Feline has a letter from Lilly outlining
the benefits of such a program as well as the logistical difficulties of installing a diamond
at the prison. Pretrial discovery ensues.

Ned Mice is the attorney for the U.S. Bureau of Prisons. He serves a timely request upon
Lilly for production of copies of "all information in your files pertaining to the
justification for this lawsuit." Must Lilly or Feline produce a copy of the letter or provide
this information to Mice?

Suggested Answer:

The letter Lilly wrote to his attorney is not discoverable, because it constitutes a
communication from the client to the attorney and is protected from discovery by
Rule 26(b)(1), which prohibits discovery of privileged material. Rule 26(b)(5) requires
Feline to identify the privilege as the reason for Lilly's refusal to turn over the letter.
Feline could also be pro-active and seek a protective order from the trial court to avoid
turning over the letter. Although the letter itself is not discoverable, the factual
information could still be discovered by Mice through properly worded interrogatories or
by taking Lilly's deposition. In addition, the phrasing of the request suggests that it is
overly broad, prompting Feline to seek a protective order from the trial court to narrow
the scope of the general request. Finally, if the purpose of the request is to have Feline
disclose any legal justification for the lawsuit, that information would not be discoverable
because it constitutes opinion work product under Rule 26(b)(3)(B), i.e., the information
sought constitutes Feline's mental impressions concerning the basis for filing the claim.


4. Paulin and Vesely witnessed an intersection vehicle collision at the corner of Third Street
and Eastern Parkway. In the subsequent case of Smith v. Jones, Jones takes Paulin's
deposition and asks, "Based on your observations at the time of the accident, who was at
faultthe driver of the VW Beetle or the driver of the Jaguar convertible?" Under
Rule 26(b)(1), is that information discoverable?

Suggested Answer:

Yes, under Rule 26(b)(1), the information sought by the party from a witness can be
discovered. It is certainly relevant to the issue of liability, and Paulin may be questioned
not only about her conclusion but about the basis of her opinion, e.g., her eyesight, her
vantage point, her relation to the parties or attorneys, etc.

5. Same facts as #4, and the next question at Paulin's deposition is, "Did you hear Vesely
express an opinion about whom she believed was at fault?" Paulin's answer would
constitute hearsay, and would not be admissible at a trial. Is the information sought
discoverable?

Suggested Answer:

Although Paulin's answer about whom Vesely believed was at fault would not be
admissible at a trial of the case because it is hearsay, it can be learned during the
discovery part of the lawsuit. As Rule 26(b)(1) states, information is discoverable even if
it is not admissible, as long as the information sought "appears reasonably calculated to
lead to the discovery of" evidence that would be admissible at trial. Based on Paulin's
answer to the question, one or both parties may decide to question Vesely about what she
saw at the time of the accident.

6. Applying the same facts as #4, Smith sends Jones an interrogatory asking, "State whether
you have automobile insurance." Is the information sought discoverable?

Suggested Answer:

Yes, but its discovery does not have to occur under Rule 26(b)(1). Recall that under
Rule 26(a)(1)(A)(iv), copies of insurance agreements which could be used to satisfy all or
part of a judgment against Jones must be disclosed. As in #5, while the insurance
agreement is not itself admissible, it could lead to admissible evidence. More important,
disclosure about insurance protection can be used to decide about whether settlement is a
feasible alternative to trial.

7. Again, same facts as #4, Jones wants to file a motion to dismiss Smith's complaint
because it fails to state a claim upon which relief can be granted. Jones has a copy of a
statement from Smith that directly contradicts one of Smith's claims. Jones sends Smith
an interrogatory asking, "State all facts which you have disclosed to your attorney and to
all other persons about your claim." How should Smith respond?

Suggested Answer:

Jones is asking for information that is relevant to his own defense, because the
Rule 12(b)(6) motion to dismiss functions as a defense to Smith's complaint. However,
problems with the request abound. First, although the information sought is relevant, the
request in part seeks the content of communications by a client to an attorney. It is
protected by the attorney-client privilege, and does not have to be disclosed, per
Rule 26(b)(1). Second, the remainder of the request may be objectionable as too
expensive or unduly burdensome to answer, per Rule 26(b)(2). Smith is being asked to
reconstruct all conversations with all persons about the facts underlying his claim. If he
has not discussed the claim with many people, the expense and burden is not great, but if
he has, the expense and burden are great.

Questions 8-11 should be done together.

8. Long before one of Paulin Electronics's drills malfunctioned in Vesely's hand in 2008,
other Paulin drills had injured consumers in 2001. Several months after they were
injured but before Vesely was injured, Paulin's President asked the production supervisor
(Prewitt) and the product designer (Christian) to send her memoranda detailing the
decision-making process by which the specific drill design was selected and the drill was
produced. Each of them drafted a long memorandum detailing the meetings with
employees and outside consultants.

Vesely's counsel now sends interrogatories to Paulin seeking all "notes, records, letters,
memoranda, or other communications concerning the Paulin Deluxe electric drill in
issue." May Paulin use Rule 26(b)(3) to avoid producing Prewitt's and Christian's
memoranda?

Suggested Answer:

The memoranda may be regarded as work product, even though they were created by one
Paulin employee for another Paulin employee. Rule 26(b)(3) explicitly applies to
documents prepared by or for another party or by or for that party's attorney. The other
concern here is that no lawsuit was pending at the time the memos were drafted.
Although there was a dispute, had others already sued or threatened to sue Paulin? Can it
be said that the memos were prepared in anticipation of litigation? Were these memos
prepared because of the prospect of litigation? Or instead, were they prepared to resolve
the dispute with Vesely rather than to pursue a lawsuit? Were the documents prepared in
anticipation of this litigation? The specific litigation the document was prepared for
should not matter. If it did, the mental impressions from one case would not be accorded
work product protection in another case.

9. Prewitt's first assistant, Henn, actually drafted the memo attributed to Prewitt. Henn no
longer works for Paulin and cannot be located. Vesely's attorney sends an interrogatory
to Paulin's President asking her to "relate the substance of any interviews you and/or your
counsel conducted with Henn concerning the Paulin Deluxe electric drill in issue."
Paulin's lawyer, Prizant, in fact had interviewed Henn before she left, but he did not
record the meeting or take notes. Must Prizant provide the requested information?

Suggested Answer:

In this case, there is not work product to be produced. Why? The only record of the
interview is Prizant's mental impression. Because Rule 26(b)(3) applies to documents
and tangible things only, the rule does not compel Prizant to create a record of the
interview and deliver it to Vesely's attorney.

10. Assume that Prizant met with Henn after Vesely's attorney had filed a lawsuit against
Paulin Electronics. Prizant took extensive notes during the interview with Henn. The
notes include factual statements made by Henn about the drill, Prizant's evaluative notes
about the credibility of Henn's statements, other evidence that might contradict what
Henn said, and problems with admissibility of the evidence. Vesely's interrogatories seek
production of "any notes, memoranda, recordings, or other records of discussions with
Henn concerning the Paulin Deluxe electric drill." Are the notes protected under Rule
26(b)(3)?

Suggested Answer:

The notes prepared by Prizant are indeed part of documents prepared in anticipation of
litigation, because they were prepared while Prizant was gathering information to ready
himself for trial. Are these notes ordinary work product or opinion work product, which
cannot be overcome by a showing of substantial need and undue hardship? Prizant's
notes about what Henn said about which evidence he believes would contradict her
statements and legal issues about the admissibility of her interview all comprise opinion
work product and are not discoverable. If it could be shown that Henn had approved or
ratified Prizant's recollections of what she had said during the interview, that part of the
notes alone could be treated as a statement and therefore characterized as ordinary work
product, subject to being overcome by the requisite showing.

11. Vesely sends the following interrogatory to Paulin Electronics: "During the time
President Paulin sought the Prewitt and Christian memos, did Prewitt, Christian, or Henn
give oral or written assurances that the Paulin Deluxe electric drill was free of any
defects?" In fact, Henn had told Prizant and Christian that the drill was free of defects.
Prizant refuses to answer, on the ground that the information is protected by the work
product privilege. Does Rule 26(b)(3) apply?

Suggested Answer:

Vesely is asking for factual information about statements made by or to these people
whose knowledge is imputed to Paulin Electronics. The information does not constitute
work product, because the interrogatory seeks factual information even if it is learned
during trial preparation.

12. Would the following document be considered something protected from discovery as
work product 'prepared in anticipation oI litigation or trial? At his lawyer's request,
Painter prepares a chronology of events leading to his accident and labels it "WORK
PRODUCTNOT FOR DISCLOSURE." He would not have prepared it but for the
possibility that he might file a lawsuit arising out of the accident.

Suggested Answer:

Although Painter is not a lawyer, he is acting at his lawyer's request in anticipation of
filing a lawsuit. There is no apparent other reason for his preparing the chronology. And
he characterizes it as "work product." An interested party's contemporaneous
characterization, of course, cannot be dispositive, but it may be taken as circumstantial
evidence of "anticipation-of-litigation" motivation for preparing the document. The
chronology should qualify as work product under any test.

Joseph W. Glannon, Andrew M. Perlman, Peter Raven-Hansen, Civil Procedure: A Coursebook,
p. 790 (1st Ed. 2011).