PRE-TRIAL LITIGATION

Joan Humes

May 4, 1998

INSTRUCTIONS

1. This exam contains 10 problems. Answer the question or questions in each of the problems in the space below each problem. If you need additional space, use the back side of each page. For grading purposes, all 10 of the problems are weighted the same so budget your time accordingly. To complete the exam in the allotted 2 hours, you should plan to spend an average of 12 minutes per problem.

2. Unless otherwise indicated, assume that the Federal Rules of Civil Procedure and Minnesota Rules of Professional Conduct apply.

3. Remember to indicate on your exam cover sheet if you are a graduating senior.

The Following Hypothetical Situation Relates to Problems 1 Through 5.

Jack Bundy was driving his car in the city of Raleigh, Minnesota at 2:00 a.m. on the morning of August 1, 1995 accompanied by his friend, Adam Angel. When a Raleigh police vehicle pulled up behind Bundy's vehicle with its lights flashing, Bundy sped away and engaged the police vehicle in a high speed chase. The vehicles turned onto a highway and continued for another ten miles during which time the Raleigh police vehicle was joined in the chase by a police vehicle from suburban Mayberry. Bundy eventually lost control of his vehicle, spun off the highway and crashed into a fence. The two police officers in the Raleigh squad car, Mike Furman and Bob Baton, and the single Mayberry Officer, Bernie Fife, removed Bundy and Angel from their vehicle. The Raleigh officers took Bundy away in their squad car and Fife took Angel to the Mayberry police station in his car.

On February 1, 1998, Bundy commenced a lawsuit in federal district court in Minnesota against Furman and Baton under 28 U.S.C. §1983 alleging that he was beaten by the officers at the scene after the chase and while en route to the Raleigh police station. His Complaint also included a state common law battery claim against the two officers. In addition, Bundy sued the City of Raleigh for failure to properly train their officers regarding the use of excessive force. Bundy alleged that the officers sprained his wrist and broke several of his fingers while removing him from his vehicle and that he received a skull fracture and an eye injury, which resulted in the loss of vision in his left eye, when the Raleigh officers beat him in the back of their squad car on the way to the police station. He also alleges damages for emotional problems resulting from the incident.

PROBLEMS

1. The two officer Defendants move for summary judgment as to both the battery and §1983 claims. While the officers believe that they will win the motion as to the battery claim, on statute of limitations grounds, they don't think they are likely to win the motion as to the §1983 claims. Nevertheless, they want to bring the motion anyway to see how strong Bundy's evidence is as to this claim. Is it proper for the officers to move for summary judgment as to the §1983 claim under these circumstances? Explain. Assume further that the court were to grant the officers' notion as to the battery claim and deny it as to the §1983 claim. Could any of the parties immediately appeal this decision? Explain.

2. Bundy does not make the initial disclosures required under Fed. R. Civ. P. 26 (a) (1) . He also refuses the Defendants' joint request that he submit to a Rule 35 independent medical examination by an opthamologist and neuropsychologist selected by the Defendants. As counsel for the Defendants, what could and would you likely do about this? Explain your rationale and arguments.

3. Prior to trial, Bundy settles with the two officers pursuant to a Pierringer release. Following the dismissal of the officers from the case, the City moves for summary judgment arguing that the release of Bundy's claims against its servant-employees also effectively extinguishes Bundy's claims against the City by operation of the Pierringer release. As the judge, would you grant the City Defendant's motion. Explain. If the court were to deny the City Defendant's motion, discuss how the City might deal with the officers' settlement at trial.

4. When Bundy showed up for his deposition, he was accompanied by his girlfriend, whom he met at a Christmas party last year, and Angel. Could the Defendants prevent Bundy's girlfriend from attending the deposition? What about Angel? Explain.

5. Shortly after Bundy commenced his suit, Angel also commenced a lawsuit in federal district court against the same Defendants as well as Fife alleging that he was also beaten at the scene after the chase. He alleges that he received a broken nose, a cut lip, and several bruises as a result of the beating. It was revealed in discovery in Bundy's suit that Furman and Baton had numerous complaints of excessive force made against them, and several suspensions resulting from these complaints, prior to the alleged incident with Bundy and Angel. Fife has never had any such complaints made against him and has received numerous commendations. Can Bundy and Angel seek consolidation of their lawsuits? Explain. Should Fife support or oppose the motion? Explain.

The Following Hypothetical Situation Relates to Problems 6 Through 10.

Sam Smith grew up in St. Cloud, Minnesota, watching CNN Congressional coverage for fun and entertainment. He always dreamed of working for the government some day. After graduating from St. Cloud State, Sam lands a job with the Department of Agriculture in Washington, D.C. His new boss, Judy Jones, lives and works in D.C. She expects long hours and commitment from her staff. Sam is happy to oblige. However, as the weeks go by, Sam feels increasingly uncomfortable with the atmosphere in the office. Judy frequently comments on Sam's clothing, his hair, or his aftershave. Judy makes it a point to stand close to Sam when they are working together, touching him on the back or on the arm. Judy always asks Sam to accompany her to lobbying events and legislative receptions -- she even tells him what he should wear to these events.

Eventually, Sam tries to decline these invitations, but Judy persists. One night, Judy brings Sam back to her office after an event, and makes a pass at him. Sam resists. Judy tells Sam that if he would have a physical relationship with her, she would make sure that doors would open for him. Sam still refuses. The next day, Judy fires Sam, telling him that his job performance was just not up to par.

Sam moves home to St. Cloud, disappointed and angry over his lost opportunity. He fails to find any other employment, because his references from Judy are all negative. He spirals into depression. When a counselor suggests he talk to an attorney, he decides to file a lawsuit against Judy Jones. He wants to bring claims for harassment, defamation and intentional infliction of emotional distress.

PROBLEMS

6. You represent Sam. He comes to your office for his initial interview and tells you the facts listed above. Outline a litigation and discovery plan for Sam's lawsuit, in light of his limited resources. What would you advise Sam when he asks you whether he should file his lawsuit in state court or federal court? Why? If Sam elects to file in federal court, what would you advise him when he asks whether to file in Minnesota or in Washington, D.C.? Why?

7. You represent Sam. During your initial interview, Sam tells you that he has tape-recorded his most recent telephone call to Judy. He wants you to hear the tape and use it in the lawsuit. What is your response and why? Sam also asks you who else he should get on tape before the lawsuit is filed. What is your response and why? Months later, during discovery, Judy's attorney serves you with a request for production of the tape. Sam now tells you that he has destroyed the tape. Sam asks you to explain all the possible consequences for destroying the tape. What do you tell him? What do you advise him to do?

8. You represent Judy. Sam's complaint alleges the details of various other sexual relationships Judy has had on-the-job with subordinate employees. His complaint also alleges that Judy is a closet vegetarian. Judy asks you if there is anything you can do to keep either of these issues out of the lawsuit. She is especially concerned that the beef and poultry producers will no longer seek her support for legislative initiatives. How do you advise Judy? Is your answer any different for the discovery phase of litigation as opposed to trial? Why or why not?

9. You represent Judy. Sam files his lawsuit in federal court in Minnesota. Sam's attorney mentions that he plans to use Dr. Sad, an expert in post-traumatic stress disorder, at trial to explain the damages Sam has suffered. Judy asks you what you plan to do to find out about this expert before trial. You explain all of your options, including both formal and informal discovery tools. What are they? Which options do you recommend and why?

10. You represent Judy. Before you have a chance to schedule a deposition of Dr. Sad, Judy comes to you with a large stack of documents. Judy tells you that she has a friend that works at the same university as Dr. Sad. Judy asked her friend to intercept all the e-mail between Dr. Sad and Sam's attorney. Judy hands you these documents, some of which are clearly marked "work product" and/or "attorney-client privilege." What do you do with these documents? What ethical rules should you consider? Later, as part of the discovery process, you receive some of the same documents. Several of them have been noticeably altered or revised. What do you do and why?