Pretrial Litigation

Professor Joan Humes

Fall 2003         

PROBLEMS

1.         You are an associate in the firm representing Kiley Bechler.  You are assigned to outline what kinds of informal investigation might be productive before Bechler files a complaint.  The partner in charge of the Bechler litigation also hands you a list of current and former Cytodyne employees, and tells you to contact them. 

What would be in your outline for informal investigation? 

What, if any, issues are presented by the list of employees

the partner gave you?  How would you resolve those issues?

2.         Same facts as #1.  The partner instructs you to set up an interview with two ex-employees of Cytodyne, and to use your own judgment on how to conduct those interviews.

What ethical issues must you consider?

What tactical issues should you consider?

When the interview is conducted, should you take a statement?

Why or why not?

3.         You represent Cytodyne.  The case is filed in federal district court in Florida.  However, in recent months, Cytodyne has consolidated its operations and now conducts all of its business out of a rural town in Iowa.  Cytodyne's CEO tells you to get the case moved to Iowa.

What procedural tool is available to you to accomplish this?

What facts do you need to support this request?

What facts might Bechler use to oppose this request?

4.         In their 26(a) initial disclosures, Cytodyne fails to identify two key scientists who helped develop the product in dispute.  You represent Bechler, and learn of these scientists through later depositions.  What, if anything, can you do about Cytodyne's non-disclosure?

If you were Cytodyne's attorney, and also learned about thesescientists at the deposition, what, if anything, should you

do? 

5.         You represent Cytodyne.  You notice the deposition of Bechler's farm team manager.  When you arrive at the deposition, you see that the manager has brought along two of Bechler's teammates from that time in his baseball career. You had planned to depose those teammates at a later time.

What, if anything, can you do?

You also notice that the farm team manager is reviewing some sort of document with Bechler's attorney before the

deposition.  Can you obtain that document?  How?

6.         You represent Cytodyne.  Bechler's attorney sends you a document request that asks for all of Robert Chinery's personal income tax records for the last ten years.  You know that Chinery was prosecuted for failure to file income taxes within the last ten years.

How might you respond to this document request?

If Bechler obtains the documents, how might you prevent their

admission at trial?

7.         You represent Bechler.  You anticipate that Cytodyne will hire an expert in valuing a baseball career.  You know that there are very few reputable experts who can testify on that subject matter. 

What information should you expect to receive from Cytodyne about their expert?  What will you do with that information once you receive it? 

8.         As pointed out in the complaint, Cytodyne has changed its product line in response to the complaints it has received.  Bechler submits a document request for all documents which contain discussion of Cytodyne's decision to stop making certain products.  Cytodyne refuses to produce these documents, claiming that they are work product.

What arguments should Cytodyne make in support of this claim?

How can Bechler oppose them?

If you were the judge and were asked to rule on this claim,

what would you rule?  Explain.