June 25 Flashcards
A merchant sued a company for breach of contract, alleging that the products she purchased failed to conform to contract specifications. Shortly before the trial was to begin, the merchant suffered a stroke that left her paralyzed and virtually unable to communicate. Her guardian was properly substituted as the plaintiff in the lawsuit. At trial, following presentation of the plaintiff’s case, the company calls as a witness a priest to question him about a conversation he had with the merchant at a church fundraiser. In this conversation, the merchant told the priest in confidence that the products she received were actually quite functional, but that she had become aware of a lower price being offered by another vendor, and thus wanted to get out of her contract with the company. The plaintiff’s attorney immediately objects on the basis of clergy-penitent privilege.
How should the court rule on the objection?
A
Sustained, because the merchant’s statement was made to the priest in confidence.
B
Sustained, because this is not a criminal case.
C
Overruled, because the privilege can be invoked only by the person who made the confidential statement.
D
Overruled, because the circumstances under which the merchant made the statement take it outside the scope of the privilege.
CORRECT ANSWER: D.
The plaintiff’s objection on the basis of the clergy-penitent privilege should be overruled. Pursuant to the clergy-penitent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member’s capacity as a spiritual adviser. The operation of this privilege is very similar to that of the attorney-client privilege. Here, the merchant made the statement to the priest during a conversation at a social occasion. There is no indication that this was a communication made to the priest in his capacity as a spiritual adviser, as would be the case, for instance, with a statement made in the confessional or during a counseling session. Thus, the matters stated to the priest by the merchant do not come within the clergy-penitent privilege, and the priest cannot be prevented from disclosing the contents of the conversation on the basis of this privilege. (A) is incorrect because, although the merchant undoubtedly made the statement in confidence (i.e., intending and expecting that it would not be disclosed to third persons), as explained above, it was not made to the priest in his capacity as a spiritual adviser. Therefore, the clergy-penitent privilege is inapplicable. (B) is incorrect because it implies that the clergy-penitent privilege does not apply to civil cases. Actually, this privilege applies to both civil and criminal cases. (C) is incorrect because, where the privilege exists, it can be claimed by the person who made the confidential communication, her guardian or conservator, or her personal representative if she is deceased. Thus, if the privilege were applicable, the merchant’s guardian (through her attorney) would be able to invoke the protection of the privilege to prevent the priest from disclosing the contents of the conversation with the merchant.
At a homicide trial, the prosecution presented evidence that, on the day of the fatal shooting, the defendant and several members of his gang engaged in a running gun battle with the victim and members of his gang. The prosecution additionally presented evidence tending to prove that the defendant had been seen at the scene of the shooting around the time that the victim was killed. In his defense, the defendant proffered testimony of a witness that, one day before the victim’s death, the defendant had said to him, “I’m flying to the state capital tonight for a two-day visit.”
Should the witness’s testimony be admitted over the objection of the prosecution?
A
Yes, because it is not being offered for the truth of the matter asserted.
B
Yes, because it tends to prove that the defendant was in the state capital at the time the charged crime was committed.
C
No, because it is inadmissible hearsay.
D
No, because it violates the propensity rule.
CORRECT ANSWER: B.
B is Correct. The testimony should be admitted. When analyzing questions involving the admissibility of hearsay evidence, ask two things: (i) Is the proffered evidence hearsay (i.e., an out-of-court statement by a declarant, being offered to prove the truth of the matter asserted in the statement)? (ii) If hearsay, is the proffered evidence nevertheless admissible because it fits within an exception to the hearsay rule? The witness’s proffered testimony is hearsay because it matters whether the defendant’s statement is true or false. If his statement is true (if the defendant actually intended to go to the state capital, as stated), then the likelihood that he actually went there is increased. (This is because people tend to act in a manner consistent with their previously stated intentions.) Since the witness’s testimony would be used for the purpose of establishing the truth of the defendant’s statement, it is hearsay evidence. However, the testimony fits within a hearsay exception. A declarant’s statement of present intention to take an action in the future fits within the “state of mind” exception contained in Federal Rule of Evidence 803(3). One’s intent is a part of one’s state of mind. Thus, the testimony should be admitted. This two-step analysis of hearsay evidence also makes clear that (A) and (C) are incorrect. (A) states that the witness’s testimony is not being offered for the truth of the matter asserted, but, as stated above, it is offered for its truth. (C) correctly characterizes the testimony as hearsay but incorrectly states that the evidence is inadmissible; it is admissible under the state-of-mind exception. (D) is a nonsensical answer. The witness’s testimony does not pertain in any way to the defendant’s character. Thus, the propensity rule, which states that evidence of a person’s character trait is generally inadmissible to prove that the person acted in conformity with the trait on a particular occasion, is not implicated by this question.
The defendant was on trial for statutory rape. He denied that the alleged victim was even in his presence on the night of the alleged offense, when he was working as the night clerk at a convenience store. The prosecution offers to have a witness testify that, in a phone conversation on the evening in question, the victim, who is available to testify at the trial, said that she had to leave because the defendant wanted her to stop by the store while he was working. The defense objects to the proposed testimony.
Should the court allow the witness’s testimony?
A
Yes, as a present sense impression of the victim’s.
B
Yes, as evidence that the victim was in the defendant’s company that night.
C
No, because the victim is available as a witness.
D
No, because the victim’s state of mind is not in issue.
CORRECT ANSWER: B.
B is Correct. The witness’s testimony is admissible under the present state of mind exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then-existing state of mind is admissible as circumstantial evidence tending to show that the intent was carried out. [See Mutual Life Insurance Co. of New York v. Hillmon (1892)] Here, the victim’s statement to the witness is being offered to show that she probably went to the store where the defendant was working that night, which is a material issue in the case. (A) is incorrect because the hearsay exception for present sense impressions applies to statements describing or explaining an event made while the declarant was perceiving the event, or immediately thereafter. Here, the victim’s statement concerned her intent to do something, not an event that she was perceiving. (C) is incorrect because the hearsay exception for present state of mind does not require that the declarant be unavailable to testify. Unavailability is only required for (i) former testimony, (ii) statements against interest, (iii) dying declarations, and (iv) statements of personal and family history. (D) is incorrect because the victim’s statement is admissible under the state of mind exception even though her state of mind is not directly in issue. Her state of mind or intent needs to be established before the inference can be drawn that she acted on that intent by going to see the defendant.
A pedestrian sued the defendant for injuries suffered in a hit and run accident. The car that struck the pedestrian was linked to the defendant, but she denies that she was driving the car when the pedestrian was hit. The only eyewitness, other than the pedestrian, was a six-year-old child. During the trial, the pedestrian put the child on the stand, and he testified that he saw the defendant driving the car that hit the pedestrian. The defense elected not to cross-examine the child. The plaintiff’s next witness was a child psychologist who had never met the child before but was prepared to testify that, based on his observations of the child on the witness stand, it was highly probable that the child was telling the truth. The psychologist was qualified as an expert witness with many years of experience dealing with children. However, the defense objected to any questions regarding the veracity of the child.
Should the psychologist be allowed to testify about the child?
A
Yes, because parties may put witnesses on the stand to reinforce or challenge the veracity of other witnesses.
B
Yes, because an expert may be needed to explain how children testify in order to avoid confusing the jury.
C
No, experts may not testify regarding veracity.
D
No, because the child’s veracity has not yet been questioned.
CORRECT ANSWER: D.
D is Correct. The psychologist should not be allowed to testify because the child’s credibility has not been impeached. Evidence of a witness’s character is admissible only after the witness’s character for truthfulness has been attacked. [Fed. R. Evid. 608(a)] The psychologist’s testimony would have been admissible if the child’s veracity had been attacked on cross-examination, but here the defense did not cross-examine the child. (A) is incorrect because the rule for reinforcing a witness’s veracity differs from the rule for challenging it. A party may put witnesses on the stand to bolster another witness’s credibility only when the witness’s credibility has been attacked. (B) is incorrect because there is no indication that the child’s ability to testify is in issue or that his testimony may confuse the jury. Federal Rule 702 provides that expert testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue, and Rule 703 permits an expert’s opinion to be based on observations made at trial. However, evaluating the reliability of an eyewitness’s identification is traditionally within the province of the jury. Since the court has determined that the child is competent to testify, the jury has the ability to decide on its own what weight to give his testimony. (C) is incorrect because it is too broad. While courts generally allow a jury to evaluate a witness’s veracity on its own, expert testimony would be allowed if the child’s credibility had been attacked on cross-examination or by other witnesses on the ground that he was too young to testify truthfully. Since this is an area where an expert’s specialized knowledge would help the jury in evaluating the child’s testimony, the psychologist probably would have been allowed to testify.
A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff’s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony.
How should the trial court rule on the admissibility of the court record?
Question ID: ME099
A
Admit the record as relevant character evidence because the plaintiff suffered serious personal injuries.
B
Admit the record as impeachment evidence.
C
Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached.
D
Exclude the record because the conviction is too remote and does not necessarily reflect on the defendant’s credibility as a witness in the present proceedings.
CORRECT ANSWER: C. The record of the conviction should be excluded because the defendant has given no testimony to be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence. (A) is incorrect because evidence of character to prove the conduct of a person in the litigated event is generally not admissible in a civil case. Circumstantial use of prior behavior patterns for the purpose of inferring that, at the time and place in question, a person probably acted in accord with such patterns raises the danger of unfair prejudice and distraction from the main issues. Consequently, even if the prior conviction resulted from driving while intoxicated, the record of that conviction is not admissible to show that the defendant was intoxicated when she collided with the plaintiff. (B) is incorrect because, as has been noted, evidence cannot be used for impeachment purposes before there is anything to be impeached. (D) is incorrect for two reasons: First, it is unnecessary to address the issue of whether the conviction constitutes proper impeachment evidence, because impeachment is not even called for on these facts. Second, if properly offered to impeach testimony by the defendant, the conviction would not be considered too remote. Under the Federal Rules, a conviction is not too remote if fewer than 10 years have elapsed since the conviction or release from prison.
A witness’s nephew was visiting her from a foreign country. One evening, the nephew went out with friends. At 11 p.m. that night, he appeared back at the witness’s house, pounding loudly on the door. She let him in, and noted that he was panting and out of breath. He immediately told her, “You won’t believe what I just saw! I was walking past your neighbor’s house just now and the wife ran up to me with a gun in her hand. She looked me straight in the eyes and said, ‘I killed the philandering fool’ before running off down the street.” After the nephew returned to his country, the wife was put on trial for the murder of her husband. The prosecution wants to put the witness on the stand to testify regarding the nephew’s statement to her. The defense objects.
Can the witness testify to the nephew’s statement?
A
Yes, because the nephew’s statement qualifies as an excited utterance.
B
Yes, because the nephew is not available to testify.
C
No, because the wife did not make her admission to the witness.
D
No, because the witness’s testimony would constitute hearsay within hearsay.
CORRECT ANSWER: A. Yes, because the nephew’s statement qualifies as an excited utterance.
The witness can testify to the nephew’s statement because it qualifies as an excited utterance. The statement of the wife that the nephew is relating is admissible as a statement of a party-opponent (commonly called an admission). The problem presented here is one of hearsay within hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A hearsay statement to which no exception to the hearsay rule is applicable must be excluded upon appropriate objection. Hearsay included within hearsay is admissible only if each layer of hearsay falls within a hearsay exception. Here, two separate statements are really being offered for the truth of the matter asserted therein: First, the nephew’s statement is being offered to prove that he actually said that the wife admitted killing the husband. Second, the wife’s statement is being offered to prove that she killed the husband. However, the wife’s statement is a statement by a party-opponent, which is traditionally treated as a hearsay exception and is treated as nonhearsay under the Federal Rules. In either case, this statement alone would be admissible. The nephew’s statement relating the wife’s admission is also admissible; it comes within the excited utterance exception to the hearsay rule. Under this exception, a declaration made during or soon after a startling event is admissible. There must have been an occurrence startling enough to produce a nervous excitement and thus render the declaration an unreflective expression of the declarant’s impression of the event. Also, the statement must have been made while the declarant was under the stress of the excitement. Here, the nephew witnessed the wife running with a gun in her hand and declaring that she had killed her husband. The nephew immediately ran back to the witness’s house and told her, “You won’t believe what I just saw!” The occurrence, including the wife’s statement, was certainly a startling event, and the nephew seems to have made his statement to the witness while he was still under the stress of excitement caused by the occurrence. Thus, the witness can testify to the nephew’s statement, including the part relating what the wife had told him. (B) is incorrect because the exception to the hearsay rule for excited utterances such as the nephew’s statement does not require the declarant to be unavailable to testify. (C) is incorrect because it does not matter in this case that the party-opponent made her admission to someone other than the testifying witness. The witness can repeat what the nephew said—including the wife’s admission—because it was an excited utterance. (D) is incorrect because, as discussed above, both parts of the nephew’s statement are admissible.
A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff’s attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff’s attorney. The state recognizes only the common law privileges.
Should this testimony be admitted?
Question ID: ME129
A
Yes, because the plaintiff’s statements are the statements of a party-opponent.
B
Yes, because the plaintiff waived the physician-patient privilege by placing his physical condition in issue.
C
No, because the plaintiff’s statements are protected by the attorney-client privilege.
D
No, because the plaintiff’s statements are protected by the physician-patient privilege.
CORRECT ANSWER: C.
The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney. (A) is incorrect because admissions by party-opponents, while not hearsay under the Federal Rules, are still subject to potential privilege assertions. (B) is a true statement; the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff’s suit, so (D) is incorrect. However, (B) is incorrect because when a client is examined by a doctor at the attorney’s request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).
A driver collided with a bicyclist, severely injuring her. The bicyclist sued the driver in the federal court for State A, properly invoking diversity of citizenship. In his answer, the driver raised the defense of contributory negligence, which is a complete defense under the law of State A, where the accident occurred.
The court instructed the jury to return a general verdict with answers to written questions. In its written answers, the jury found that both the driver and the bicyclist were negligent. Nonetheless, it returned a general verdict awarding the bicyclist damages for her medical expenses and for her pain and suffering.
Which of the following options is NOT available to the court to redress the inconsistency between the general verdict and the jury’s finding of contributory negligence?
A
The court may dismiss the jury and order a new trial.
B
The court may enter a judgment in favor of the driver, dismissing the plaintiff’s complaint.
C
The court may direct the jury to further consider its verdict and its answers to the court’s written questions.
D
The court may enter a judgment in accordance with the jury’s verdict, provided there is a legally sufficient evidentiary basis for it.
CORRECT ANSWER: D. The court may enter a judgment in accordance with the jury’s verdict, provided there is a legally sufficient evidentiary basis for it.
D is Correct. Under the Federal Rules, when the jury’s answers accompanying a general verdict are consistent with each other but are inconsistent with the general verdict, the court may (i) enter a judgment that is consistent with the answers, disregarding the general verdict; (ii) instruct the jury to deliberate further regarding its verdict and answers; or (iii) order a new trial. These options are set out in choices (A), (B), and (C). It may not, however, enter a judgment in accordance with the verdict itself, which is set out in choice (D).
A homeowner from State A hired a contractor from State B to build a vacation home for her in State C. The parties signed the contract in State A. The contractor breached the contract, and the homeowner sued the contractor in a court of State A, seeking damages of $100,000. The contractor removed the case to the federal court for State A. The homeowner promptly moved to remand the case to state court, arguing that venue was improper.
Which of the following facts is most relevant to the court’s decision on the homeowner’s motion?
Question ID: MJ233
A
The contract was signed in State A.
B
The contractor resides in State B.
C
The homeowner commenced the action in a State A court.
D
The vacation home was to be built in State C.
CORRECT ANSWER: D.
(C) The commencement of the action in State A is most relevant. When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice. Thus, (C) is the correct answer because the most (indeed, only) relevant fact is the fact that the action was commenced in a court of State A. Unlike cases commenced in federal court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer choices (A) and (D)) are irrelevant.
The plaintiff is a resident of City A, located in the Northern District of State A. The defendant is a resident of City B, located in the Eastern District of State B. The defendant negligently ran a red light in City B, resulting in a collision between his car and the delivery van that the plaintiff was driving. The result: 100 pounds of cork that the plaintiff was delivering wound up striking him in the back of the head, causing severe injuries. The plaintiff sued the defendant in the Northern District of State A. The defendant moves to dismiss based on improper venue.
How should the court rule on the defendant’s motion to dismiss?
Question ID: MJ142
A
Grant the motion, because the Northern District of State A is not a place of proper venue.
B
Grant the motion, because the court does not have personal jurisdiction over the defendant.
C
Deny the motion, but it should transfer the case to the Eastern District of State B.
D
Deny the motion, because the Northern District of State A is a place of proper venue.
CORRECT ANSWER: C.
The court should deny the motion to dismiss and transfer the case. Venue in this case (a diversity case) would be proper in a judicial district in which (i) any defendant resides, if all reside in the same state or (ii) a substantial part of the events or omissions giving rise to the claim occurred. Thus, venue would be proper in the Eastern District of State B because that venue is both the defendant’s residence and the place where a substantial part of the events took place. The plaintiff’s choice of venue in the Northern District of State A must be corrected. To correct improper venue, a court will usually transfer the case to a place of proper venue, not dismiss the case, with the standard being whether transfer would be in the interests of justice. There are no facts here to indicate that an injustice would be worked by transferring the case; as a result, the case should be transferred rather than dismissed. Thus, (A) is incorrect. (B) is incorrect because an objection to personal jurisdiction may be waived by failing to timely raise the issue. Here, the defendant has not raised the issue, thus waiving it. (D) is incorrect, because the Northern District of State A is not a place of proper venue.
A plaintiff sued a defendant in state court in State A, alleging that the defendant violated the plaintiff’s patent on a new type of air conditioner. The defendant removed the case to federal court in State A and quickly lost on the plaintiff’s motion for summary judgment. The defendant appeals, claiming that because the case was improperly brought in state court, which does not have jurisdiction over patent cases, it was not removable to federal court, and the federal court thus lacked jurisdiction. The plaintiff argues that no rule requires that the state court have had jurisdiction over a removed case.
Who is correct?
Question ID: MJ150
A
The plaintiff, because the defendant did not timely object to a lack of jurisdiction.
B
The plaintiff, because the federal court may hear a removed case even though the state court from which the case was removed did not have jurisdiction.
C
The defendant, because if the state court did not have subject matter jurisdiction, then it could not have ordered removal.
D
The defendant, because the state court was required to dismiss the action upon finding that it lacked subject matter jurisdiction.
CORRECT ANSWER: B.
The plaintiff is correct. An action originally filed in a state court may be removed to federal court if: (i) the case could have originally been filed in a federal court; and (ii) for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed. The rule is that the federal court may hear a removed case even though the state court from which the case was removed did not have jurisdiction. (C) and (D) are therefore incorrect. (A) is incorrect. Note that a lack of subject matter jurisdiction may be raised at any time, even on appeal. If there was truly a lack of subject matter jurisdiction, the defect could have been raised, but as noted, there was subject matter jurisdiction over the case despite the state court not having it.
A homeowner from State A hired a builder from State B to build a summer home for her in State C. They negotiated and signed the building contract in the builder’s business office in State D. Shortly thereafter, the homeowner informed the builder that she had decided not to build the summer home and would no longer need the builder’s services.
The builder commenced an action against the homeowner for breach of contract in the federal court for State D, seeking damages in excess of $75,000. The homeowner moved for a transfer of venue to the federal court for State A. The court granted the motion, and the case was transferred to the federal court for State A.
Assuming that the contract does not contain a choice of law provision, what substantive law should the federal court for State A apply?
Question ID: JD01
A
Federal common law principles of negligence, because this is a diversity action in a federal court.
B
State C law, because the summer home was to be built there.
C
The substantive law as determined by the choice of law rules of State A.
D
The substantive law as determined by the choice of law rules of State D.
CORRECT ANSWER: D.
D is Correct. The court should apply the substantive law as determined by State D’s choice of law rules. Under Erie, a federal district court sitting in diversity must apply the substantive law of the state in which it sits. A state’s substantive law includes the choice of law rules of that state. When a case in a federal court is transferred to a federal court in a different state, the transferee court applies the choice of law rules of the state in which the transferor court sits, provided that venue was proper in the transferor court and the case is not being transferred due to a forum selection clause. If venue was improper in the transferor court, then the choice of law rules of the transferee court would apply. Here, venue was proper in the federal court for State D because the contract was signed there, which is a “substantial part of the events or omissions giving rise to the claim.” Thus, the federal court for State A (the transferee court) would apply the choice of law rules of State D, where the transferor court sits. (C) is incorrect for the reasons explained above. (A) and (B) are incorrect because under Erie, a federal court in diversity must apply the substantive law (including the choice of law rules) of the state in which it sits. It may ultimately turn out that State C law applies, but if it does, it will because State D law requires it under its choice of law rules.
While in State A, a driver residing in State A collided with a truck owned and operated by Speedy Trucking, Inc., a State B corporation headquartered in State B. The words “Speedy Trucking, Inc.” were prominently displayed on the truck’s doors and cargo bed.
One day before the statute of limitations on her claim expired, the driver filed a complaint in the federal court for State A, seeking damages of $500,000, but she mistakenly named “Speedy Delivery, Inc.” as the sole defendant. Sixty-seven days later, the summons and complaint were served on the president of Speedy Delivery, Inc. The president of Speedy Delivery, Inc., is the sole shareholder and president of both Speedy Trucking, Inc., and Speedy Delivery, Inc. Five days after the complaint was served, the driver, realizing that she had sued the wrong defendant, filed an amended complaint naming Speedy Trucking, Inc., and served the amended summons and complaint on the president.
Federal Rule of Civil Procedure 3 states: “A civil action is commenced by filing a complaint with the court.” State A’s rule states: “A civil action is commenced as to any defendant upon filing, but only if the defendant is served with a summons and complaint within 60 days of filing the complaint. Otherwise, an action is deemed commenced upon service of process on the defendant.”
Speedy Trucking, Inc., has moved to dismiss the amended complaint on the grounds that the statute of limitations has run.
Should the court grant the motion?
Question ID: JD06
A
Yes, because the action was not timely filed under State A law.
B
Yes, because the driver sued the wrong defendant in his original complaint.
C
No, because under Federal Rule 3, an action is deemed commenced upon filing.
D
No, because the amendment relates back to the filing of the original complaint.
CORRECT ASNWER: A.
The court should grant the motion to dismiss because the original action was not timely filed. Under Federal Rule 15(c), an amendment that changes the name of the party relates back to the date of the original pleading if (i) the party “received such notice of the action that it will not be prejudiced in defending on the merits”; and (ii) the party “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” The original complaint also must have been timely filed. Here, the original complaint was not timely filed. Under the Erie doctrine, the date an action commences for statute of limitations purposes is determined by state law. State A law requires the summons and complaint to be served on the defendant within 60 days of filing the complaint for commencement to be determined by the date of filing; otherwise, an action is deemed commenced on the date of service of process. Because the (mistaken) defendant was served beyond the 60 days, the action is deemed commenced on the date of service, and thus is not timely. (B) is incorrect because the answer ignores the possibility of the action relating back under Federal Rule 15(c). Furthermore, the defect here is that the summons was served late—had the company’s president been timely served, the fact that the wrong corporate defendant was served would not result in dismissal. (Rather, the amendment naming the correct defendant would have “related back.”) (C) is incorrect because, as explained above, the date an action “commences” for statute of limitations purposes is determined by state law. (D) is incorrect because the original action must be timely filed to take advantage of the relation back doctrine.
A bus collided with a car. The bus company hired an investigator to prepare a report regarding the accident. The investigation revealed that the bus driver was speeding when the accident occurred. The investigator included this information in his report to the bus company.
The driver of the car sued the bus company in federal court, properly invoking the court’s diversity of citizenship jurisdiction. The driver of the car served interrogatories on the bus company, asking whether the bus driver was speeding when the accident occurred.
Assuming that the investigator’s report is the sole basis of the bus company’s knowledge regarding the accident, must the company disclose that the driver was speeding?
Question ID: JD28
A
No, because the report was prepared in anticipation of litigation.
B
No, because the driver may conduct his own investigation of the accident.
C
Yes, because the driver has substantial need for the information.
D
Yes, because the information is relevant and not subject to the work product exception.
CORRECT ANSWER: D.
Work product protects documents and materials prepared in anticipation of litigation, not the underlying facts in the document itself. Thus, regardless of whether the investigator’s report is work product, the bus company must nonetheless disclose all relevant facts regarding the accident, including the fact that the driver was speeding. (A) and (C) are incorrect because they are premised on the incorrect assumption that the work product rule would protect against disclosure of the information if the report were prepared in anticipation of litigation (choice (A)) unless the driver had substantial need for the information (choice (C)). (B) is incorrect because the driver’s ability to obtain the information on his own does not excuse the bus company from disclosing it.
