Discovery sanction hypos
- Christianson arrives at his video deposition, noticed by
Bicycle Messengers. He is startled to find that the address given in the notice
is the Arlington Park Racetrack. A table is set up with a court reporter sitting
at it. After Christianson is sworn in, counsel for Bicycle Messengers says,
"Get on the bicycle and ride around the track as fast as you can."
Assume you represent Christanson. What are your options and what are the pros
and cons of each?
- Christian has a pre-suit video showing him winning a 100-mile
bicycle race. He omitted it from his 26(a)(1) disclosures. Now he puts it
on his evidence list in his final pre-trial memorandum. You represent Bicycle
Messengers. What should you do?
- Yamahonda propounds an interrogatory to Christianson that
says, "Did you inquire about motorcycles with leg protection?" Christianson
leaves his response blank. What options do you, as counsel for Yamahonda have?
What are the pros and cons of each?
- Bicycle Messengers serves Christianson with a Rule 34 Request for Production requiring him to produce his prosthesis. Christianson ignores it. Bicycle Messengers files a motion for an order to compel. A raucus hearing on the motion is held, at which various accusations about discovery abuse swirl back and forth. At one point, the magistrate judge presiding over the hearing orders Christianson to produce the leg. His counsel does not hear the magistrate judge. Christianson still does not respond. May his complaint against Bicycle Messengers be dismissed as a sanction? His complaint against Yamahonda?
- Assuming the magistrate judge made no such order, what arguments can Christianson make that he should not have to comply with the Rule 34 request? What kind of protective order should he seek.
- Christianson produces the leg. Bicycle Messengers' "expert" subjects it to a "stress test," damaging it beyond repair. What remedies does Christianson have?
- Officer Cue, in his deposition, said that his squad car
was not equipped with a video camera. In fact it was. You represent Bennaza,
and serve a Rule 34 request for production of the video. You get no response.
You call Cue's lawyer who says, "You aren't getting it. It would
be an invasion of privacy." What options do you have? What are the pros
and cons of each?
- In Officer Cue's deposition, he says, correctly, that his patrol car was equipped with a video camera. You request the recorded video of the encounter under Rule 34. Kenilworth responds that the video was erased in a cyberattack. The attacker is unidentified. You suspect that Cue himself was the cyberattacker, but you lack proof. Assuming you represent Bennaza, what are your prospects for getting sanctions imposed on both defendants under Rule 37?
- You represent Kenilworth. You get Bennaza's Rule 26(a)(2)
disclosures, listing former FBI Special Agent in Charge and former Chicago
Police Superintendent Jody P. Weis as an expert witness and attaching his
resume. You do not receive, however, any expert report from Superintendent
Weis. Superintendent Weis is called as a witness at trial and sworn in. What
are your options and the pros and cons of each?
- A resident of Kenilworth, who was hiding in the bushes near
where Bennaza was stopped by Officer Cue, made a video of the stop and
the ensuing encounter. Bennaza hears about it in Little Ricky's (a Winnetka
bar) and brings it with him to trial. On direct examination, his lawyer asks
him if he has any videos of the encounter. Bennaza says, "yes,"
pulls a USB stick out of his pocket, and the lawyer cues it up on a large-screen
computer. He gets ready to click the play arrow. You represent Cue. This
is the first you've heard of this video. What are your options and the pros
and cons of each?
- You represent Kenilworth and notice Bennaza's deposition.
He doesn't show up. What are your options and what are the pros and cons of
- You discover the reason Bennaza didn't show up is that he
is away at law school in New Haven, CT. You notice another deposition in New
Haven. He doesn't show up at that one, either. What are your options?
- Bennaza's roommate refuses to answer questions at his deposition
about what Bennaza told him the day after the incident with Officer Cue.
You represent Cue or Kenilworth. What are your options and the pros and
cons of each?
- Bennaza serves a Rule 34 Request for Production on Kenilworth for "all computerized data showing any information about Officer Cue." There is a database containing numerous allegations of excessive force against Cue, one involving an attack on his watch commander with a flashlight, during which Cue seized the watch commander's wallet and threw it to a K-9 German Shepherd nearby, who enthusiastically chewed up everything in it. The database software application was written by a programmer using a 1990 version of dBase IV, software which no longer is supported. The programmer did not document the program and died from a drug overdose. No one can figure out how to get anything out of the database. What sanctions, if any, should Bennaza seek against Kenilworth? How likely is he to get them?