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?
