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?
