Questions?

1. Questions?

2. Today’s Class, Part I • Discovery: • Sanctions. • Problems on p. 462. • Spoliation (again) in the internet age.

3. Problem 1a(slightly revised, p. 462) Having filed a complaint against Adele for breach of contract and received the required disclosures, NickiMinaj sends Adele a set of additional interrogatories seeking some routine information about the details of company organization, such as which officers and employees are responsible for which aspects of the company’s affairs. Adele serves a response to the interrogatories but in that response refuses to answer any of the questions, noting in its response that these matters are not relevant to the claims and defenses of the action. Nicki’slawyer believes that such questions are entirely proper because they enable her to decide which officers to depose—and that they are thus included within Rule 26(b)(1) as “reasonably calculated to lead to the discovery of admissible evidence.” How should Nicki’slawyer proceed to get answers to her interrogatories?

4. Problem 1b (slightly revised) (p. 462) Having filed a complaint against Adele for breach of contract and received the required disclosures, NickiMinaj sends Adele a set of additional interrogatories seeking some routine information about the details of company organization, such as which officers and employees are responsible for which aspects of the company’s affairs. Adele refuses to answer any of the questions, noting in its response that these matters are not relevant to the claims and defenses of the action. Nicki’s lawyer believes that such questions are entirely proper because they enable her to decide which officers to depose—and that they are thus included within Rule 26(b)(1) as “reasonably calculated to lead to the discovery of admissible evidence.” Assume Nickifiles a motion to compel and wins. What must Nickido in order to get sanctions (i.e., attorney’s fees for making the motion)?

5. Problem 2 (p. 462)(slightly revised) Adele serves notice to take the deposition of Nicki, the President of MinajCorp. On the appointed day, Nickidoesn’t show up. As attorney for Adele, what remedies can you seek?

6. Problem 3 (p. 462) When Adele seeks sanctions, Nickiclaims that Adele purposefully scheduled the deposition at an extremely inconvenient place and requests that the location be changed. Should that argument, if true, block or mitigate sanctions?

7. Problem 4 (p. 462) When Adele deposes Nicki, her lawyer interposes numerous objections with the result that at the end of seven hours, the deposition is just getting into the core inquiries Adele has planned. Nickiand her lawyer stand, call for the end of the deposition, and draw Adele’s attention to the seven-hour provision of Rule 30(d)(1). What should Adele do?

8. Problem 5 (p. 462) Nickiand Adele serve a series of requests for discovery on each other, including interrogatories, notices of depositions, and various requests for the production of documents. Nickibelieves that she has responded in good faith to Adele’s requests but that Adele has been systematically uncooperative, raising many barely tenable objections, declining to produce documents until threatened with a court order, producing incomplete sets of documents, then producing overwhelming quantities of documents in which the relevant material is buried, and similar tactics. What should Nickido?

9. Zubulake v. UBS

10. Timeline of Events • 1999: Zubulake hired; told she would be considered for her supervisor’s job when he left. • 2000: Supervisor leaves, Zubulakeis not considered for the job. • April 2001: UBS thinks Zubulake might file a sex discrimination claim. • August 16, 2001: Zubulake files a sex discrimination claim with the EEOC. • October 9, 2001: Zubulake fired. • February 15, 2002: Zubulake files lawsuit.

11. Today’s Class, Part II • Resolution Without Trial • Default. • Rationale for default. • How it works. • Peralta: A lesson in default disfavored. • Dismissal. • Voluntary; • Involuntary.

12. Securing a default judgment is really a multi-step process . . . • Step One: Get the court clerk to enter a default on the docket. Rule 55(a). [This is known as an “entry of default.”]

13. How does one get the court clerk to enter a default? • You file an affidavit telling the clerk you served notice on the defendant of the lawsuit (in essence, you tell the clerk where and how you served notice). • You also include in your affidavit the fact that no responsive pleading has been received. • You then request that the clerk enter the opposing party’s default.

14. Securing a default judgment is really a multi-step process . . . • Step One: Get the court clerk to enter a default on the docket. Rule 55(a). [This is known as an “entry of default.”] • Step Two: Secure a “default judgment.” Rule 55(b).

15. Securing a default judgment is really a multi-step process . . . • Step One: Get the court clerk to enter a default on the docket. Rule 55(a). [This is known as an “entry of default.”] • Step Two: Secure a “default judgment.” Rule 55(b). • From the clerk. Rule 55(b)(1). • From the court. Rule 55(b)(2).

16. When can the clerk enter a default judgment? • If the plaintiff’s claim was for a sum certain; and • If plaintiff has provided an affidavit of damages due; and • If the defendant has been defaulted for a failure to appear; and • If the defendant is not a minor or an incompetent person.

17. HYPO Michael loans Dwight $1,000. Dwight fails to pay Michael back. Michael sues in the Scranton Circuit Court (assume that court has adopted the Federal Rules of Civil Procedure) to recover the $1,000. Dwight’s lawyer, Denny Crain, enters an appearance on Dwight’s behalf. However, Denny never files another paper on Dwight’s behalf. Michael files an appropriate affidavit with the clerk and the clerk enters a default on the docket. Can the clerk then enter a default judgment?

18. HYPO Michael and Dwight are involved in a car accident. Michael sues Dwight in the Scranton Circuit Court (assume that court uses the Federal Rules of Civil Procedure) for damages to his car and for pain and suffering due to an ongoing injury to his back. Michael seeks $65,000 in damages. Dwight does nothing in response to the lawsuit. Michael gets the clerk to enter a default on the docket. Can Michael now get the clerk to enter a default judgment?