Wednesday audio--Section A, Section B.
• Essay # 5 due in class Friday. Please note the typo correction on Essay # 5--Defendant concedes the Plaintiff made a mistake. Again, it should not affect your essay.
• Prelim Exam posted at 9 a.m. tomorrow. Instructions are up.
• Section B meets at noon Friday; Section meets at 2 p.m. Friday. We will go an extra 20 minutes.
We will continue our conversation about finding the appropriate sanction, given the options in FRCP 37(b)(2)(A) (as incorporated).
We will spend much of Friday on Coca Cola:
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?
• How might the FRCP 26(f) discovery conference eliminate much of this dispute?
We then move, time permitting 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?
Note that Salazar-Limon is not a case to read but another problem that I will give you on the blog next week.
