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?
