Essay 2855 Flashcards
In March 2008, Pat, a citizen of State A, learned that Devon Corp. (“Devon”), a citizen of State B, may have been illegally releasing toxic chemicals into the air near her home.
In February 2011, Pat sued Devon in federal court, alleging a cause of action for negligence and seeking damages for a persistent cough. The court had subject matter jurisdiction over Pat’s lawsuit.
During discovery, Pat requested Devon to produce all documents relating to reports by local residents about foul odors coming from its plant. Devon objected to Pat’s discovery request, contending that the plant’s odors came from legally produced and harmless chemicals, and that therefore the request sought irrelevant information. In further response, Devon provided a privilege log that listed a document described as a summary of all communications with local residents concerning odors that emanated from the plant. As a basis for refusing to disclose the document, Devon claimed the summary was protected from disclosure under the work product doctrine because it had been created by its counsel, who therein described the underlying facts of the residents’ comments as well as counsel’s thoughts about them. Pat filed a motion to compel Devon’s production of the documents she requested. The court denied Pat’s motion.
In October 2012, while the lawsuit was still pending, Pat learned from a scientific report in a newspaper that the chemicals Devon released cause lung cancer.
In November 2012, Pat amended her complaint to add a cause of action for strict liability and sought to require Devon to pay for preventive medical monitoring of her lungs.
Devon moved to dismiss Pat’s strict liability cause of action on the basis that the applicable three-year statute of limitations had run.
Did the court correctly deny Pat’s motion to compel? Discuss.
How should the court rule on Devon’s motion to dismiss? Discuss.
ISSUES CHECKLIST
I. PAT’S (P) MOTION TO COMPEL
Discovery
Relevance
Privilege
*Work Product Doctrine
Motion to Compel
II. D’S MOTION TO DISMISS
Amendment
Relation Back Doctrine
In March 2008, Pat, a citizen of State A, learned that Devon Corp. (“Devon”), a citizen of State B, may have been illegally releasing toxic chemicals into the air near her home.
In February 2011, Pat sued Devon in federal court, alleging a cause of action for negligence and seeking damages for a persistent cough. The court had subject matter jurisdiction over Pat’s lawsuit.
During discovery, Pat requested Devon to produce all documents relating to reports by local residents about foul odors coming from its plant. Devon objected to Pat’s discovery request, contending that the plant’s odors came from legally produced and harmless chemicals, and that therefore the request sought irrelevant information. In further response, Devon provided a privilege log that listed a document described as a summary of all communications with local residents concerning odors that emanated from the plant. As a basis for refusing to disclose the document, Devon claimed the summary was protected from disclosure under the work product doctrine because it had been created by its counsel, who therein described the underlying facts of the residents’ comments as well as counsel’s thoughts about them. Pat filed a motion to compel Devon’s production of the documents she requested. The court denied Pat’s motion.
In October 2012, while the lawsuit was still pending, Pat learned from a scientific report in a newspaper that the chemicals Devon released cause lung cancer.
In November 2012, Pat amended her complaint to add a cause of action for strict liability and sought to require Devon to pay for preventive medical monitoring of her lungs.
Devon moved to dismiss Pat’s strict liability cause of action on the basis that the applicable three-year statute of limitations had run.
Did the court correctly deny Pat’s motion to compel? Discuss.
How should the court rule on Devon’s motion to dismiss? Discuss.
SAMPLE ANSWER
I. PAT’S (P) MOTION TO COMPEL
Discovery
Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. This includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.
Here, P has moved to compel Devon (D) to discover all documents relating to reports by local residents about foul odors coming from its plant.
Relevance
Admissibility of the evidence at trial does not matter for determining relevance for purposes of discovery. The test is whether the information sought is relevant to any party’s claim or defense. Information may be discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”
In this case, P is seeking reports by local residents relating to D’s release of toxic chemicals. It is not possible for P to conclude with certainty that the reports are irrelevant simply based on D’s assertions. These reports likely include details of the residents’ observations and knowledge of the chemicals, which could lead P to other evidence. By their nature, the reports likely detail the experiences of the residents, including any symptoms or conditions they have developed due to D’s release of chemicals. In addition, the reports may lead P to find witnesses who can testify in support of P’s claim against D.
As information is relevant and discoverable if it appears to be reasonably calculated to lead to the discovery of admissible evidence, the reports are very likely relevant, and within the scope of discovery.
Privilege
Privileged information is not discoverable.
Work Product Doctrine
The work product doctrine provides limited protection for otherwise discoverable trial preparation materials or the work product of attorneys. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.
Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. If the court orders discovery of trial-preparation materials, the court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
Whenever a party withholds information on the basis of a privilege, such as the attorney-work-product privilege, the party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.
Here, D claims the documents relating to reports by local residents are privileged under the work product doctrine. D provided a privilege log, describing the documents relating to the local resident reports and stating its claim of privilege. D claims the summary in particular is privileged because D’s attorney prepared it, and it contains D’s attorney’s thoughts on the reports. D also claims the documents requested are completely irrelevant to P’s claim.
These arguments are unpersuasive. Relevance is not a factor in determining whether information is privileged under the work product doctrine, and so it does not matter whether D believes the information is irrelevant to P’s claim. D has expressly stated that privilege is claimed under the work product doctrine and has described the documents to be protected. However, the facts do not indicate that D’s attorney specifically prepared the summary in anticipation of litigation, or for trial. It is possible the attorney did prepare the summary after other residents complained, in anticipation of litigation. However, the facts do not state this.
Even if the attorney had prepared it for litigation, if disclosed, the court would protect the attorney’s mental impressions, conclusions, opinions, and theories. P should still be able to obtain the remainder of the summary if she has a substantial need for the materials and cannot, without undue hardship, obtain the reports of the residents.
As previously stated, these reports are highly relevant to P’s case, as they will likely lead to evidence and testimony P can use to support her negligence claim. P has a substantial need for the reports. D will likely argue, however, that P could easily obtain new reports herself, by speaking with those residents. However, P’s claim is nearly three years old, and it is unclear from the facts whether the residents listed in the report still live in the area, or are even alive. As P’s claim is aging and includes the possibility of lung cancer, some residents may no longer be available for P to interview. Additionally, acquiring new reports from the residents requires significant effort. The factual reports from the local residents, without the personal opinions of D’s attorney, can be provided to P by D with far less hardship than would be incurred if P acquired them herself, if she even can.
Thus, the documents are not subject to the work product doctrine, and are therefore not privileged. Since they are relevant to P’s claim and not subject to any privilege, they are discoverable.
Motion to Compel
If a party fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.
In this case, P requested documents that D refused to provide, which were relevant and not subject to any privilege. Assuming P properly served D with the motion and certified that she attempted to obtain disclosure without court action, the court incorrectly denied her motion to compel discovery of the local resident reports.
II. D’S MOTION TO DISMISS
After P read an article about the chemicals being released by D causing lung cancer, P amended her complaint to include a strict liability claim. In response to this D filed a motion to dismiss P’s strict liability claim against it on the ground that the statute of limitations had already run.
Amendment
The court should freely give leave to amend a pleading when justice so requires. Generally, a court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless the amendment would result in undue prejudice to the opposing party.
Here, the facts do not indicate that P’s strict liability claim is subject to immediate dismissal for failure to state a claim. In addition, P’s strict liability claim arises out of the same facts as her negligence claim, the release of chemicals by D. D is already pursuing defenses on the issue and is likely not unduly prejudiced by the addition of a strict liability claim. Thus, the court should grant her amendment in this situation.
Relation Back Doctrine
An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. This may be important for the purposes of complying with the applicable statute of limitations. An amendment will also relate back to the date of the original pleading if the law that provides the applicable statute of limitations allows relation back.
In this case, P filed her original complaint in February 2011, one month shy of the three year statute of limitations on her strict liability claim. Because the strict liability claim is based on the same facts as her original claim, P’s strict liability claim will relate back to the February 2011 pleading, and will not violate the statute of limitations.
Since P’s claim does not violate the statute of limitations, the court should deny D’s motion to dismiss.
