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.
