For Wednesday

Friday audio--Section B (Section A didn't record--don't worry, same material).

Upcoming key dates:

    • No class next Thursday.

    • Essay # 4 due on Wednesday.

    • Essay # 5 due on Friday.

    • Prelim Exam posted on Thursday; due on March 20.

    • Essay # 6 will post on Thursday, March 20.

Review both sections of Discovery--everything we have looked at so far, plus FRCP 37 and 45 and Seattle Times. 

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

    • How does the exchange of information work? What does each party do? When and how does the court become involved?

    • What is the mechanism for enforcing discovery obligations?  What sanctions are available and how does the court decide on a sanction? Note the special treatment for sanctions for violation FRCP 35 and 45.

I hope to get to Coca Cola by late Wednesday; if not, this will be our focus on Friday.

    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 # 5 (Both Sections) Posted

Download Regular Type; Download Large Type. This one is too large and has too many pieces to post here. Due in class on Friday, March 14.

My apologies for not posting this as planned.

For Friday

Thursday audio--Section A, Section B. Section A meets in RDB 1000. Only 70 minutes tomorrow.

We continue with Discovery Process; plus, read FRCP 45 in addition to reviewing everything else.

Here, here, and here are some sample discovery documents, just to give you a picture of how they look and sound.

    • Why have the proportionality requirement in Rule 26(b)(1)? 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?

We will not get to Coca Cola until Wednesday of next week, but reminder of the problem. 

    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?

 

For Thursday

Wednesday audio--Section A, Section B. Essay # 4 posted today and is due next Wednesday. Essay # 5 will post at 12:30 tomorrow and is due outside my office next Thursday. Prelim Examn will post next Thursday and is due in class on Thursday,  March 20.

Quick point on the role of the 4(m) period in FRCP 15(c): The issue is the period of time, not service. The plaintiff must serve the original complaint on any properly named defendants; that is what 4(m) is about. Rule 15(c) is concerned with whether the amendment will relate back; it uses the 4(m) period as the period in which the to-be-added defendant must have received any notice. So in analyzing whether a pleading relates back, the question is "did the to-be-added defendant receive the notice required by (C)(i) and (ii) within the 4(m) period (whatever days that entails."

Also, on suing early in John Doe cases: The point was to explore the plaintiff's strategy in dealing with the fact that lack of notice is not a mistake so you can't relate a Doe pleading back. If you know you must sue Doe and you can't relate back, what can you do in your lawsuit that will allow you to identify Doe and amend? This is independent of the ability to sue anyone else (such as the City); any claim against the city is separate from the claim I want to bring against the officer once I learn his name and amend.

We turn to Managerial Judging, then Discovery Process for tomorrow; prep all of that for the next two days.

    • 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 parties protect their interests within discovery? Consider the example of making and responding to document requests under Rule 34 and objecting in a deposition. How might you, as plaintiff, frame a document request in Godin or in Morgan.

    • What is the connection between discovery and notice pleading? If we think the discovery process is out of control, how might we control it?

    • 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?

    • Why have the proportionality requirement in Rule 26(b)(1)? 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?

We will cap-off the discussion of Discovery with Coca Cola Bottling Co. v. Coca Cola Co. (You probably cannot fully analyze the problem until we get through this week's materials, but you have it ready to go). Keep this on the back burner:

    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 # 4 (Sec. B)

Download Regular Print; Download Large Print. Read after the jump. Due in class next Wednesday, March 12.

Essay # 4 (Sec. A)

Download Regular Type; Download Large Type. Read after jump. Due in class next Wednesday, March 12.

Welcome Back: Essays and Upcoming

Welcome Back:

Graded Essay # 3 available outside my office (both sections).

Scores on Essay # 3:

    Section B: Mean:16.25; Median: 16 

    Section A: Mean: 17.75; Median: 17

Essay # 4 will post at 12:30 p.m. on Wednesday, March 5, due in class on Wednesday, March 12.

Essay # 5 will post at 12:30 p.m. on Thursday, March 6, due outside my office by the beginning of class time on Thursday, March 13 (remember no class that day).

Prelim Exam will post at 9 a.m. on Thursday, March 13 (our off-day), due in class on Thursday, March 20. The exam will consist of ten (10) questions, worth five (5) points each, for a total of fifty (50) points towards your final grade.

Comments on Essay # 3:

    • Read and answer the precise question as framed in the problem. If the problem narrows the issues, stay within those issues. You only have 1000 words, so I try to frame the problem to allow you to target a specific issue within that word limit; take advantage of it.

        • Section A: The motion conceded that Murray acted in a racist matter (a big concession, because one might describe this as national-origin discrimination, which § 1981 does not cover). You had no reasons to analyze that question; acknowledge the concession and focus on the other elements.

        • Section B: The motion only challenged the element of harm/damages. You had no reason to discuss whether Baffert owed a duty or acted negligently and no reason to discuss whether plaintiffs and Churchill Downs had a contract. The motion accepted all of that. Which a defendant might do--if the damages the plaintiffs seek are obviously unavailable as a matter of law, there may be no reason to get into a fight about duty at this point. Especially for purposes of dismissal with or without prejudice--if the allegations of duty are lacking but the court might allow plaintiffs to amend, a defendant might focus on allegations damages which are deficient as a legal matter and thus the basis for dismissing with prejudice.

    • Define important terms as part of your RE. What does legal insufficiency mean (and how does it relate to plausibility); what does factual insufficiency (and how does it relate to plausibility)? What does it mean to dismiss with or without prejudice? And explain your conclusions as part of your A--Why should the dismissal be with prejudice? This requires you to be specific and cite the allegations in the Complaint you are talking about. Don't talk in generalities.

    • If you identify a conclusory allegation, you can't say "this is conclusory" and stop. Because there may be other nonconclusory facts in the complaint that may establish a sufficient claim; you have to discuss them, as well.

Local Rules and Judges' Rules (Updated)

Recall FRCP 83(b), authorizing each judge to create procedural rules for practice in her courtroom, within (and consistent with) the FRCP and the rules of the district.

Six Judges on the District of Colorado adopted a joint set of Uniform Civil Practice Standards for their courtrooms. One of them, Judge Kato Crews, is presiding over a lawsuit challenging the Mountain West Conference's policy allowing trans women to participate in women's sports (there was a big controversy last season about a volleyball player at Colorado State). Plaintiffs have moved to recuse Judge Crews, arguing that his adoption of these courtroom policies reflects bias and prejudgment on the issues. (Update: Judge Crews refused to recuse or to rescind the policy).

At the same time, plaintiffs challenging programs to benefit historically underrepresented groups (such as corporate pipeline programs or minority-investment programs) have had more success recusing judges over policies encouraging courtroom participation by less-experienced attorneys, especially women and historically disadvantaged groups.

The moral: Do not assume that the local and courtroom rules enacted under FRCP 83 are anodyne or blandly apolitical. Sometimes they have a substantive effect.

Some things on FRCP 15(a)

1) What we tried to identify with both time periods  in FRCP 15(a)(1) is when the window opens (earliest the party can amend as a matter of course) and when the window closes (party no longer can amend as a matter of course). The party can amend at any time within that window. So a plaintiff who wants to amend the complaint can do so at any time from right after filing the original through service of the original through service of the response through 21 more days. She not wait until the response is filed (although in practice she might, because she does not know of the defects until the response comes). If she identifies defects herself, she need not wait for anything.

2) Someone asked the following question outside of class: Which FRCP 15(a)(1) time period applies to an Answer with a counterclaim? Is it (B), because the counterclaim makes this a pleading to which a responsive pleading is required? Or do we divide the pleading up--(A) controls the parts that do not require a responsive pleading (e.g., the answers to the allegations) and (B) controls the parts that do require a responsive pleading (e.g., the counterclaim).

I took the question to a Civ Pro Prof Listserv (that is a group that knows how to party). Most said the textual argument is (B) controls all, since the "pleading" means the entire document, which is one to which a responsive pleading is required because of the counterclaim.

3) One person responded with the following, which I think illustrates something about both of the above points. And it shows how much of what happens in litigation occurs in the shadow of the rules but plays out in very practical terms . And it shows how the judge enforces cooperation and practical action within the litigation:

This actually happened to me, sorta.  I filed an answer and a counterclaim and the next day I noticed that I had left off an exhibit relevant to the counterclaim so (this was in the days of paper filing) I walked over to the clerk’s office and I got the same clerk.  We were on friendly terms because I liked to file stuff myself.  The federal courthouse was right across the street and I liked the fresh air (and didn’t bill anyone for the time it took).  She said “why are you back again?”  I sheepishly explained what had happened.  She said “hold on, it was late yesterday and I didn’t have time to put it in the file,” so she took the missing exhibit stapled it to my first filing and put it in the file.  I hustled back to the office and snatched the amended answer/counterclaim that I was serving by mail out of the outgoing mail before it had been picked up.

My thought process was that since the other side was going to have to answer the counterclaim I had a freebie coming.  I didn’t give any thought to whether the fact that the exhibit was only relevant to the counterclaim made any difference or not.  I suppose I’d read the rule that the freebie would only apply to the counterclaim.

But realistically, nobody would have made an issue out of it.  My plan had been to call opposing counsel and tell them to ignore the original and just deal with the amended one.  The chances of them making a motion saying I needed permission from them or the court were vanishingly small and even if they did the judge would’ve looked at them cross-eyed and granted me permission to file an amended answer/counterclaim.

So I think that’s probably the closest to a real world answer.  But good on your student for reading the rule carefully enough spot an at least potential ambiguity.

For return from break

Friday audio--Section A, Section B.

Some scheduling stuff for our return:

    • Essays ## 4 and 5 will be posted on Thursday, March 6 and due outside my office by classtime on Thursday, March 13.

    • Prelim Exam will be posted at Noon on Thursday, March 13 and due on Thursday, March 20. It will be 5-10 multiple-choice questions.

    • Section A class on Friday, March 7 will be in the Large Courtroom for Admitted Students Day. You should be beyond prepared.

    • No class on Thursday, March 13. Make-up schedule for that TBD.

    • Classes on Friday, March 14 will meet an hour late: Section B (Noon-1:10); Section A (2-3:10).

We continue with (and finish) Amendments and Relation Back.

    • What knowledge or notice must the new party have under FRCP 15(c)(1)(C)? What is imputed or constructive (as opposed to actual) 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 does a claim against a Doe defendant not relate back? What is the argument that Krupski allows Doe relation back?

This will complete our discussion of pleading

Then move to Managerial Judging, focused on FRCP 16 and the NFLPA order.

    • 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 Wednesday, prep FRCP 26(a) and (f); 30(a), (c), and (d); and 34.

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

    • 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 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?

Sample Answer: Essay # 3 (Section A)

The court should deny defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6).

 

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. A court can dismiss with prejudice (with leave to replead) or without prejudice (with leave to replead).

Sample Answer: Essay # 3 (Section B)

 

The court should grant defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6) and dismiss the Negligence claim against Baffert and the Breach of Contract claim against Churchill Downs with prejudice.

 

A motion to dismiss for failure to state a claim tests the legal or factual sufficiency of a pleading stating a claim for relief. A court can dismiss with prejudice (with leave to replead) or without prejudice (with leave to replead).

For Friday

Thursday audio--Section A, Section B.

We continue with Amendments; prep the remainder of this section. 

    • On the connection between dismissal with or without prejudice--what would happen if the court dismissed a complaint but did not specify the terms? What would the plaintiff do and how would the court respond?

    • Be prepared to discuss the Foman factors; what do they mean and how do they relate to the text of FRCP 15(a)(2)? What is the connection and distinction between undue delay and undue prejudice? What makes an amendment futile?

    • What does it mean for a pleading to relate back? How does relation back connect to futility? How can the court know that a proposed amendment is futile?

    • Consider: In Zielinski, PPI moves for leave to amend to change its answer to ¶ 5 to make clear it is not responsible for the pier. What is Zielinski's argument for undue prejudice?

    • What is the purpose of relation back and how does it operate? What are the procedural frames in which it can be raised? 

    • What are the underlying policies behind statutes of limitations? How do those policies connect to relation back?

    • Consider the elements of relation back: How is notice created? What is the timing for that notice? What is the difference between "actual notice" and "imputed or constructive notice?" How might a new party obtain either kind?

    • What is a "mistake concerning the proper party's identity?" How does it apply to a Doe pleading?

Thoughts on Same Transaction or Occurrence and other additional claims

In response to some questions from in and out of class about what satisfies STO and what is an insufficient "but-for:"

• Someone pointed out in class Wednesday that there would be discovery overlap between Kinsmann's claims and Winston's counterclaims: Whether Winston committed sexual assault goes to the merits of her battery claims and the truth of her statements for purposes of Winston's defamation counterclaim. That may suggest that courts should not entirely reject a but-for connection in defining STO. That while there is no discovery connection in Jones, there could be in other cases. For better or worse, however, courts have not gone that route--if the only connection is but-for, it is not enough. Work through the Bose problem for the same analysis.

 • When we discussed joinder of plaintiffs, we said it is possible to frame what look like sequential events into a single transaction or occurrence (one big fraud scheme instead of individual acts of fraud). That might be a way to understand Clear Code's counterclaim under the new contract. At first blush we have two distinct occurrences--Clear Code makes bad code, Holmes stops paying. But we can connect them as one because of the contract and the business relationship, which links them together.

• To be clear, a but-for connection between events never satisfies STO under any rules. The question is whether you can identify and argue for a relationship that is closer than but-for.

• In thinking about but-for in joinder: Don't think of it as "but-for cause" (as you sometimes see in the legal standard for a claim, as in torts or in the discrimination claims in Section B's Essay # 1). This is a but-for relationship between real-world events (one event leads to another) that give rise to distinct claims. It's not about the governing legal standard.

• The question of whether you can "bring" unrelated claims is independent of the merits of those claims. That is, a party can join all of these claims in their pleadings, even if unrelated, when the rules allow. That has nothing to do with whether any of these claims will survive a 12(b)(6) or even be sanctionably frivolous. Our focus is entirely on what then joinder rules allow. And recall Rule 21--misjoinder of claims is not grounds for dismissal of those claims.