Hypos 6-8 Flashcards
Zubulake resigns from UBS Warburg in April 2001. On her last day in the office, she sends an email to the head of her department which says “Given the harassment and discrimination I have faced and which you have not prevented, I am forced to resign from UBS Warburg. But I firmly believe that UBS is legally responsible for the acts of your subordinates and you will be hearing from my lawyer shortly.”
What should the head of the department do? And what obligation does this trigger?
First, any time an employee threatens to sue your company, you need to contact in-house counsel and get them involved.
Second, in-house counsel will recognize that this is a threat to sue the company and that it triggers a duty to preserve documents. In-house counsel will then have to arrange a litigation hold.
If P claims that he fell into a hole on D’s property that was inadequately marked, you can use Rule 34 to
Obtain entry onto D’s property so that your experts can examine the hole and any safety measures or warning signs.
P alleges that he was injured by a negligently designed product that was designed and manufactured by D. P finds out that D produced prototypes of the product that P believes may have been safer than the one that was ultimately marketed. P can use Rule 34 to . . .
Request production of the physical prototypes so P may test them or have them examined by P’s expert.
“Defendant objects on the basis that the document request calls for the production of some documents that are irrelevant or privileged. Relevant, non-privileged documents responsive to the request will be produced.”
If you were the plaintiff, would you be satisfied with this answer? Why or why not?
nope
P and D are in a car accident and both allege that they were seriously injured. Could either party seek a mental or physical examination of the other?
Yes. D could obtain a physical exam of P because P claims to have suffered serious physical injuries.
P could also obtain a physical exam of D for the same reason.
P and D are in a car accident and both allege that they were seriously injured. Could either party seek a mental or physical examination of the other?
Both parties have put their physical condition in controversy in the pleadings by alleging that they suffered serious injuries.
not mental
D’s lawyer receives a request for production of all documents related to his client’s negotiation of a contract. The lawyer produces the documents without reviewing them. A document describing the lawyer’s advice to the defendant about the legal effect of various contract terms is inadvertently disclosed.
P receives the document and seeks to use it in the litigation over the contract. D immediately invokes R. 26(b)(5)(B) and claims the document is subject to attorney-client privilege. P sequesters the document and then makes a motion requesting a finding that the privilege has been waived.
How should the court rule on P’s motion?
The privilege is waived because D failed to take reasonable precautions to protect the privilege. D did not review the documents at all before turning them over to the opposing party. That is an unreasonable lack of care. Therefore, P may use the document in the litigation.
D’s lawyer drafts a memo to the client that contains privileged information. The lawyer prints out and then later tears up a draft of the memo. The pieces of the memo are then placed in a trash can in the lawyer’s office. That night, the trash is taken from the lawyers’ office out to a dumpster in the parking lot under the lawyer’s office. The parking lot is private property and is clearly marked with no trespassing signs. The dumpster is behind a chain link fence.
A private investigator hired by the plaintiff climbs over the fence and goes through the dumpster. The PI pulls out the trash bag containing the parts of the memo. The PI then reassembles the memo from the parts. Plaintiff subsequently tries to use the document in litigation and the defendant objects on the grounds that the document is protected by the attorney client privilege. Plaintiff responds that the privilege has been waived by the document’s disclosure.
Has the attorney client privilege been waived?
The court concluded that it had not been waived. Even though the privileged material was actually discovered by the plaintiff, that did not constitute an automatic waiver. The privilege would only be waived if D’s lawyer failed to take reasonable precautions to protect the privileged information. D’s lawyer tore up the document and then placed it in the trash. The trash was subsequently put in a dumpster that P’s agent accessed, but that dumpster was on private property, clearly marked as such, and behind a fence to prevent access. The court concluded that D took reasonable steps to protect the privacy of the document and thus the privilege was not waived and P could not use the document.
Frank is an employee of Defendant. He is an engineer and designed the product that is the subject of the lawsuit. D wishes to have Frank testify about the product as an expert in engineering and design. Frank has worked for D for 6 years but has never testified before on behalf of his employer.
Does Frank have to provide an expert report
No. Frank is clearly not an outside, retained expert. Rather, he is a regular employee of D. Moreover, this is the first time he has testified on behalf of D so his duties do not “regularly involve giving expert testimony.” Thus, he would not need to provide a written report containing all of the things specified in Rule 26(a)(2)(B).
But D would still need to disclose “a summary of the facts and opinions” to which Frank is expected to testify. See Rule 26(a)(2)(C).
Susan is a professor of engineering at a local university. D wishes to have Susan testify about the allegedly defective product as an expert in engineering and product design. D hires Susan and agrees to pay her $200/hour for her time spent analyzing the product and providing testimony.
Does Susan have to provide an expert report?
Yes. Susan is clearly an outside, “retained” expert. She is not an employee of D and she is being paid for her time spent analyzing the product and providing testimony. As such she must produce a written report that complies with the requirements of Rule 26(a)(2)(B).
