Does the Constitution Apply Extraterritorially?
Hard Essay Question from the 2007 CivPro Exam

Multiple Choice Question from the 2004 CivPro Exam

With updated answers

Question 6.

P is suing the D Corp. for disability benefits in the Federal District Court for the Southern District of New York. P has some home movies made by her husband of P lifting their child to help him put a star on the Christmas tree. The movie suggests that P does not have the requisite disability after all. Which of the following is most accurate?

a. P has a disclosure obligation to turn over the tape even without being asked for it in discovery.

b. The D Corp. can get the tape in discovery, but only through a subpoena.

c. The D Corp. can get the tape in discovery through a document request under Rule 34, but only if it can show substantial need of the tape and the inability without undue hardship to obtain its substantial equivalent by other means.

d. The D Corp. can get the tape in discovery, but P has the right to depose the D Corp.’s witnesses prior to turning it over.

e. The tape is freely discoverable through a document request under Rule 34.

ANSWER

a. P has a disclosure obligation to turn over the tape even without being asked for it in discovery.

Wrong. Under 26(a)(1)(B), P has a disclosure obligation to turn over material "that the disclosing party may use to support its claims or defenses." This is not material that P would use to support her claims -- it undermines her claims. As I noted in class, there is no longer a disclosure requirement to turn over damaging material. 

b. The D Corp. can get the tape in discovery, but only through a subpoena.

Wrong. A subpoena tuces tecum would be needed if P were not a party, but she is. Provided that the material is not privileged, a simple FRCP 34 request for documents and tangible things is enough. 

c. The D Corp. can get the tape in discovery through a document request under Rule 34, but only if it can show substantial need of the tape and the inability without undue hardship to obtain its substantial equivalent by other means.

Wrong. This answer assumes that the tape is work product. It isn't -- it was not created in anticipation of litigation. People do not film the trimming of Christmas trees in anticipation of litigation. See FRCP 26(b)(3). 

d. The D Corp. can get the tape in discovery, but P has the right to depose the D Corp.’s witnesses prior to turning it over.

Wrong. This answer has things backwards. When the other side is requesting of you evidence that impeaches their witnesses, courts will commonly require you to turn the evidence over only if you are first allowed to depose the witnesses that would be impeached. This is in order to catch the witnesses in a falsehood before they have a chance to tailor their story to accommodate your impeachment evidence. For example, if the D Corp. was the one that had the tape of P engaging in heavy lifting and P requested the tape in discovery, then the D Corp. would generally not have to turn the tape over until it got the opportunity to depose P and catch her in a lie (such as "I can't lift my child anymore"). On the other hand, when the other side is requesting of you evidence that impeaches your own witnesses (as is the case in the question), the right to depose doesn't make any sense. 

e. The tape is freely discoverable through a document request under Rule 34.

Correct. Such impeachment evidence is freely discoverable.  

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