Friday, March 15, 2024

For Wednesday

Friday audio--Section A, Section B. Essay # 4 posts at noon next Wednesday; Essay # 3 due at the beginning of class Wednesday.

Someone made a good point after class: The 26(f) conference, discovery plan, and initial Rule 16 conference may streamline this process. The parties would identify the dispute over the formulae during the conference, flag the dispute as part of the discovery plan, and address it with the court at a conference, probably through cross-motions. That gets us to the point we reached--the parties present the dispute to the court, the court decides the formula is discoverable and orders production, Coca Cola resists (loudly) the order, and the court imposes sanctions. It skips the intermediate steps of Bottler having to make requests and Coca Cola having to object to set-up the motions. This reflects FRCP 26(f) streamlining the process--as it is designed to do. By the way, I have done this problem with a room full of lawyers--and no one identified that idea.

We move to Summary Judgment: Standards and Procedures. Prep everything assigned.

    • What is the connection between discovery and summary judgment?

    • How does summary judgment differ from 12(b)(6) and 12(c)? What will the court consider on a motion for summary judgment? What is a stipulation?

    • What is an affidavit or declaration (and how are they different)? How else can a party preview a witness' testimony besides an affidavit or declaration? What is the difference and when will the party choose one or the other?

    • Break down the elements of FRCP 26(a) and the meaning of each key term. Think of how these terms apply in Scott, Adickes, and Celotex. How does the court decide each of these terms without acting as factfinder?

    • What is direct evidence? What is circumstantial evidence?

    • What is the burden of persuasion? What is the burden of production?

Note that Salazar-Limon is not a case to read but another problem that I will give you on the blog.

Thursday, March 14, 2024

For Friday

Thursday audio--Section A, Section B. My apologies for those of you in Section A who had LSV at 11:20; I did not realize we were running into class time.

We will have a few final words on sanctions. We know the goal is the minimum sanction to ensure compliance. What fact(s) should the court consider in figuring out what that is (hint: they were all things that some of you mentioned). On the question of available sanctions, see FRCP 37(b)(2)(B) for sanctions for violating FRCP 35 and FRCP 45(g) for sanctions for violating a subpoena. Why the unique treatment of contempt in both of those?

We then get to Coca Cola. Remember, one person can only speak 3 times. So everyone on each side must be ready to participate or this will come to a screeching halt. I reserve the right to cold-call.

Both sections: One person can speak no more than three times in working the problem; that means I expect everyone to participate in this discussion. I reserve the right to cold call.

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms? What can either party do if it disagrees with that resolution?

        • What can Coca do if the court orders it to provide the formulae? What can the court do in response? What choices does Coca have?

 I hope to at least begin Summary Judgment: Standards and Procedures. For tomorrow, review FRCP 56(a), (b), and (c), along with FRCP 12(d).

    • What is the connection between discovery and summary judgment?

    • How does summary judgment differ from 12(b)(6) and 12(c)? What will the court consider on a motion for summary judgment? What is a stipulation?

    • What is an affidavit or declaration (and how are they different)? How else can a party preview a witness' testimony besides an affidavit or declaration? What is the difference and when will the party choose one or the other?

Wednesday, March 13, 2024

For Thursday

Wednesday audio--Section A, Section B. Essay # 3 posted at noon today.

We continue with both sections in Discovery; please review assigned rules.

   • Where does the obligation for parties to comply with discovery rules come from? What about non-parties?

    • What is the process for seeking, obtaining, and responding to discovery?

    • When and how does the court become involved?

    • How does the court ensure compliance with discovery obligations when it becomes involved?

Discovery Review will involve Coca Cola Bottling Co. v. Coca Cola Co. You should be able to prepare for it for tomorrow. In Section A, the side of the room closest to the door represents the Bottler; the other side represents Coca Cola.

Both sections: One person can speak no more than three times in working the problem; that means I expect everyone to participate in this discussion. I reserve the right to cold call.

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms?

        • What can Coca do if the court orders it to provide it? What can the court do in response?

 

Essay # 3

COLLEGE REPUBLICANS   )

OF STATE UNIVERSITY       )

OF NEW YORK-                     )

BINGHAMTON,                      )

               Plaintiff                      )

      v.                                         )

BRIAN ROSE, IN HIS             )

OFFICIAL CAPACITY            )

AS VICE PRESIDENT FOR    )

STUDENT AFFAIRS AT          )

SUNY-BINGHAMTON, and    )

IN HISINDIVIDUAL               )

CAPACITY, et al.                      )

            Defendants                     )

 

 

* * *

 

Count I: Violation of First Amendment

(v. Brian Rose in his Official Capacity)

 

* * *

 

Count II: Violation of First Amendment

(v. Brian Rose in his Individual Capacity)

 

 

 

The claims arise from two incidents at the State University of New York (SUNY)-Binghamton, in which ideologically adverse campus groups disrupted the College Republicans’ expressive events and university officials failed to protect the group’s speech. The first was a “tabling” event on November 14, 2021 promoting an upcoming lecture by renowned economist and president adviser Dr. Arthur Laffer (“Tabling Event”). The second was Dr. Laffer’s lecture days later (“Laffer Event”), which ended after fifteen minutes when protesters prevented Laffer from being heard and he left the stage. Plaintiff alleges that Rose (and other university officials named as defendants, who are not important for present purposes) allowed the events to be interrupted; did nothing to protect plaintiff from the disrupting crowd or to ensure its expressive events could continue; encouraged the disruptions; and pushed the Republicans and their invited speaker to end both events.

 

Rose moves to dismiss under FRCP 12(b)(6). The court issues the following order:

 

      1) Rose Motion to Dismiss Count I--the official-capacity claim--is DENIED; Count I may proceed. College Republicans of Binghamton sufficiently pleaded that its First Amendment rights were violated because university officials failed to stop disruption of the Tabling Event and disruption of the Laffer Event and failed to protect plaintiff in the exercise of its First Amendment rights. The complaint sufficiently pleads an ongoing violation and a risk of future violations of plaintiff’s First Amendment rights by Rose in his official capacity.

      2) Rose Motion to Dismiss Count II--the individual-capacity claim--is GRANTED; Count II is DISMISSED. As described above, plaintiff sufficiently pleaded that its First Amendment were violated by the disruption of the two events; that fconclusion applies to the individual-capacity claim and the official-capacity claim. (See Order ¶ 1). But to hold a government-official defendant personally liable in an individual capacity for damages, plaintiff must plead and prove an additional element—that the government official, through that official’s own individual actions, violated the Constitution. Tangretti v. Bachmann (2d Cir. 2020). Plaintiff fails to allege sufficient nonconclusory facts about Rose’s personal actions with respect to either the Tabling Event or the Laffer Event to plausibly show Rose’s individual connection to those violations. Count II is DISMISSED WITHOUT PREJUDICE; plaintiff may move to amend if discovery reveals Rose’s personal involvement in the constitutional violations.

 

Rose files an Answer to the official-capacity claim (Count I).

 

A Rule 16(b) Scheduling Order provides in relevant part:

 

      1.   Discovery closes 90 days after all depositions have been taken.

 

      2.   Parties may seek leave to amend at any time until 30 days after completion of the final deposition.

 

      3.   The court does not set a date for trial at this time. The court will confer with the parties to set a trial date following the close of discovery, resolution of dispositive motions, and completion of settlement efforts.

 

 

The case proceeds to discovery. Plaintiff takes its final deposition on November 24, 2023; defendant takes its final deposition on December 30, 2023.

 

On January 15, 2024, plaintiff moves for leave to amend to add a claim for damages against Rose in his individual capacity. The motion states that documents obtained in discovery and deposition testimony from several witnesses provide new information linking Rose to the Tabling and Laffer events and thus supporting an individual-capacity claim.

 

The proposed Amended Complaint (attached to the motion) repeats all factual allegations of the original Complaint. It adds the individual-capacity claim as Court II and includes the following new allegations:

 

      52.     Rose personally traveled to the Tabling Event but chose not to intervene when protesters disrupted the event.

 

      53. To the contrary, Rose told several disruptive students and groups that he would not stop their disruptive actions so long as no one was physically injured.

 

      * * *

 

      91.     Rose told the chief of campus police to confront the speaker at the Laffer Event and to encourage him to return to his plane and cancel the event.

 

      92.     The chief of police, who reports to and is supervised by Rose in the university hierarchy, followed those instructions.

      * * *

 

      102.   Rose observed the Laffer Event from a conference room in university-police headquarters, saw the disruption occurring, but did nothing to intervene.

 

 

Rose opposes the motion for leave to amend.

 

 

For the court, decide the motion.

Tuesday, March 12, 2024

Sample Discovery Documents

Purely to demonstrate how they look and sound. We are not going to dig into these cases. Here, here, and here.

Friday, March 8, 2024

For Wednesday

Friday audio--Section A, Section B. Essay # 3 will post at noon Wednesday.

We continue on Wednesday, Thursday, and Friday with Discovery. Review Discovery Process, then prep Enforcing and Avoiding Obligations, which adds FRCP 37 (all) and 45(a), (d), (e), and (g), as well as Seattle Times to the prior reading.

    • Why have the proportionality requirement in the rule? How does FRCP 26(b)(2) relate to 26(b)(1)?

    • Review the rules relating to the various discovery devices. Is there a particular order in which to use each device?

    • What is unique about FRCP 35 compared with other rules? What does Schlagenhauf tell about the scope and meaning of FRCP 35?

    • Where does the obligation for parties to comply with discovery rules come from? What about non-parties?

    • What is the process for seeking, obtaining, and responding to discovery? When and how does the court become involved? How does the court ensure compliance?

Discovery Review (probably for later Thursday or Friday) will involve Coca Cola Bottling Co. v. Coca Cola Co. (You probably cannot fully analyze the problem until we get through Wednesday and Thursday materials, but you have it).

    Coca Cola Bottling Co. (Bottling) contracts with Coca Cola Co. (Coca) to bottle Coca Cola. Coca sends pre-mixed syrup to the bottler; the bottler mixes the syrup with carbonated water, bottles it, and ships it. The contract sets a price at which Bottler purchases syrup for "Coca Cola." The formula for Coca Cola is among the best-kept trade secrets in American business, particularly the composition of the mystery ingredient known as "Merchandise 7X." Two  people in the company at any time know the forumla for Merchandise 7X. The written formula is locked in a bank vault that can be opened only on resolution of the company Board of Directors (which requires a meeting and a vote, which takes some time but is not burdensome).

    Coca introduces "New Coke" and "Diet Coke" as new products. The secret ingredient in those products is "7X-100." As with 7X, two people in the company know the 7X-100 formula, the written formula is locked in a vault and opening the vault requires a resolution of the Board of Directors. Coca sells the syrup for New Coke and Diet Coke to Bottler, but at a substantially higher price than the contract price.

    Bottler sues Coca for breach of contract, arguing that Coca must sell New Coke and Diet Coke syrup at the contract price for Coca Cola. Bottler seeks to obtain discovery of the formulae for Merchandise 7X and 7X-100; Coca does not want to turn this information over.

    Be prepared to litigate for both sides:

        • Was Coca required to disclose under 26(a)?

        • How can Bottler seek the formula and how can Coca resist?

        • Must the formulae be provided and on what terms?

        • What can Coca do if the court orders it to provide it? What can the court do in response?

Thursday, March 7, 2024

For Friday

Thursday audio--Section A, Section B. Essay # 3 will be posted next Wednesday.

We are now done with pleading, so you should review the flow charts and put all the pieces together.

We move to Managerial Judging and Discovery: Discovery Process. For discovery, focus on the assigned pieces of FRCP 26, FRCP 30(a)-(d), 33, 34, 35, and 36, along with the Glannon reading.

    • What is managerial judging and how does FRCP 16 contribute to that? What does FRCP 16 require or allow the judge to do?

    • How does discovery square with the adversary system? How does adverseness work into discovery? How do the rules attempt to reduce adverseness?

    • Why would a party object in a deposition? How can a party protect its interests while responding to a Rule 34 document request?

    • What is the connection between discovery and notice pleading?

    • What is disclosure and what is the standard for disclosure? How is that different than the ordinary standard for what is discoverable? Why a different standard for disclosure?

    • Think about the various discovery devices (in FRCP 30-36), how they fit together, what information they provide, and a rough order in which to employ the devices.

Wednesday, March 6, 2024

For Thursday

Wednesday audio--Section A, Section B. Essay # 3 will post next Wednesday, March 13 and will be due the following Wednesday, March 20 (I understand you all have LSV papers this weekend). Many people still need to pick up Essays ## 1 and 2.

We continue with Amendments and Relation Back.

    • What is imputed or constructive notice? Key emphasis on "impute"--what does that word mean and how does that explain "imputed knowledge?" How can the to-be-added party get either actual or imputed notice? What are the timing requirements for that notice?

    • What is a "mistake concerning the proper party's identity," according to the 1966 Committee notes, Krupski, and Herrera? Why no relation back of a Doe defendant? What is the argument that Krupski allows Doe relation back?

Then move to Managerial Judging, focused on FRCP 16.

    • What is managerial judging and how does FRCP 16 contribute to that? What does FRCP 16 require or allow the judge to do?

Then we may hit the very beginning of Discovery: Discovery Process. Just for tomorrow, prep FRCP 26(f), 30, and 34.

    • How does discovery square with the adversary system? How does adverseness work into discovery?

    • Why would a party object in a deposition?

    • What is the connection between discovery and notice pleading?

Sample Answer--Essay # 2

Section A: Median: 14; Mean: 14.7

Section B: Median: 17.5; Mean: 15.6

Sample Answer--Essay # 1

Section A: Median: 23; Mean: 21.8

Section B: Median: 20; Mean: 20