1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it in the Registrar's Office (Cindy Egeness) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

GRADUATING SENIORS: If you are a graduating senior, note this fact on all bluebooks and this exam paper. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in Room 230. You must return the exam to this room at the conclusion of the exam period.

INSTRUCTIONS

1. This exam contains 12 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 the page. For grading purposes, all 12 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 10 minutes per problem.

2. The first 6 problems are based on the Polly Plaintiff/Watercraft hypothetical which we have used for the last few months in class. The last 6 problems are based on a hypothetical contract case as further described in the problems.

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

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

1. Polly's attorney found out that the head of Watercraft's engineering department, who designed the Cruiser boat, recently retired and is living at his lake home in Brainerd. She decides to travel to Brainerd to talk to him. Meanwhile, Watercraft's attorney discovers that Polly's attorney knows of the engineer's home address and plans to go talk to him. Can Polly's attorney

communicate ex parte with the engineer? Explain why or why not. What, if anything, can Watercraft's attorney do to prevent the engineer from talking to Polly's attorney?

2. Polly goes to see an attorney several years after her accident upon the advice of a relative. Polly's attorney does some preliminary research and discovers that the statutes of limitation

on any strict liability and breach of warranty claims that Polly may have will expire in one week. Polly's attorney believes that the manufacturer, Watercraft, and the boat dealer, Marineland, a

Wisconsin corporation, are appropriate defendants. He also believes that Marineland might also be a citizen of Minnesota given its operations in Minnesota. Polly's attorney would prefer to

bring Polly's lawsuit in federal court because of his greater experience there. Where should Polly's attorney commence the action and why?

3. Upon learning of the decision of the Consumer Product Safety Commission ("CPSC") to launch an investigation of recreational boating accidents, Watercraft hired Engineering Testing Co. ("ETC") to perform certain testing of its Cruiser boats to use in responding to any CPSC allegation of safety problems with the Cruiser and related CPSC citation and enforcement proceedings. ETC's report of its testing to Watercraft noted several problems with the design and operation of the Cruiser's steering system which could result in a loss of control after sharp turns. When Polly's attorney asked Watercraft to produce the reports of all testing done on the Cruiser, Watercraft refused to produce ETC's report claiming that it is work product. What arguments should Watercraft make in support of this claim if Polly moves to compel the production of ETC's report?

4. After Watercraft's attorney served Watercraft's answers to Polly's interrogatories, she discovered, while reviewing some of the company's records, that Watercraft falsely stated in its

answers that it had never received a complaint about the steering system on the Cruiser boat prior to Polly's accident. In fact, it had received eight such complaints. She also discovered that

Watercraft deliberately failed to report these same complaints to the Consumer Product Safety Commission ("CPSC") last year when the CPSC was investigating Watercraft and several other boat manufacturers. What, if anything, must Watercraft's attorney do about the false interrogatory answer and false report to the CPSC? Explain.

5. During her deposition, Polly is asked about a three page handwritten account of the day of the accident which she prepared and which her attorney previously produced to Watercraft's counsel. When asked when and why she prepared this account, Polly states that she prepared it for her attorney the day after she first met with him and that she gave it, and a bunch of other papers, to her attorney the next time they met. Polly's attorney mistakenly assumed that this account had been prepared by Polly for the county sheriff who had investigated the accident. Upon hearing Polly's answer in the deposition, Polly's attorney instructs Polly not to answer any more questions about her handwritten account on attorney-client privilege grounds and also demands that Watercraft's attorney return all copies of the handwritten account to him. What should Watercraft's attorney do? Explain.

6. Polly sues Watercraft in state court in Minnesota. Before answering or filing any Rule 12 or 56 motions, Watercraft removes the case to federal court on diversity grounds. Polly and her

attorney do not want to have the case tried in federal court. Can Polly take either of the following steps to get her case back in state court: (1) amend her complaint as of right to add a non-diverse defendant (the Minnesota boat retailer) and then seek a remand of the case to state court; (2) voluntarily dismiss her case and re-commence it in state court against Watercraft and the non-

diverse boat retailer? Explain. What, if any, other suggestions do you have for Polly and her attorney?

7. Harry Hotelowner's hotels in Moorhead, MN are badly damaged by the blizzard of 1997. Harry has seen repairwork done by Carrie Carpenter of Fargo, ND. He admires her handiwork, so Harry hires Carrie to repair the hotel woodwork. Harry and Carrie agree on the job requirements, the cost (over $75,000) and the completion date. They write and sign an agreement. On the last day of the repair job, Harry discovers that Carrie's son, Larry, did the repairwork and not Carrie. Harry refuses to pay for the work, claiming that he had contracted for Carrie's personal handiwork. Carrie responds that the agreement did not specify who would actually do the repairwork. Carrie sues Harry in federal district court, in diversity, for breach of contract.

You represent Carrie. Harry serves requests for admission. Carrie admits that Larry is not a certified woodworker. Larry later reviews the answers and tells you that he does have a woodworking certificate. What do you advise Carrie to do and why?

8. You represent Carrie. Harry serves interrogatories. The first interrogatory is: "Identify every customer you have ever worked with in the state of Minnesota." Carrie has worked with Minnesota customers in a number of different capacities -- as a carpenter, as a trucker and as a general contractor -- over a period of 25 years. She is concerned that Harry will use her customer list to damage her reputation. How do you advise Carrie to answer this interrogatory and why?

9. You represent Harry. Carrie answers your Interrogatory #1 described in the preceding problem (#8). The answer is -- "Objection." What do you do next and why? What if, despite your

efforts, Carrie gives no additional response?

10. You represent Carrie. Harry tells you in his Rule 26(a) disclosure that he plans to have an expert testify on woodworking qualifications. How will you obtain information on this expert and

his anticipated testimony through the Rules of Civil Procedure? What other informal methods might you use to obtain information on this expert?

11. You represent Harry. You discover that Mary Motelowner has already sued Carrie on similar facts in federal district court. Mary's attorney moves to consolidate the two cases for trial. What is your response and why?

12. You represent Carrie. You made a demand for settlement and Harry has not responded. Assuming the Minnesota prejudgment interest statute applies, and the case goes to trial, what impact does the statute have on Carrie's recovery? How would Carrie's recovery differ if Harry had responded to the demand within 30 days?