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?