Essay Question from the 2006 CivPro Exam
Multiple Choice from the 2007 CivPro Exam

Multiple Choice Question from the 2008 CivPro Exam

 With updated answers:

3.         P is suing D in federal court for violations of federal securities fraud. An essential element of P’s cause of action is that P reasonably relied upon D’s misrepresentations. After filing the suit, however, P wrote a letter to a friend, which he forgot to mail and so remains in P’s files, stating that P always knew that D was lying. Which of the following is most accurate?

 

a.         D can get the letter in discovery, but only if he can show substantial need of the letter and the inability without undue hardship to obtain its substantial equivalent by other means. 

b.         D can get the letter in discovery, but P has the right to depose D’s witnesses prior to turning it over.

c.         D can get the letter in discovery.

d.         D cannot get the letter in discovery, because to do so would mean revealing P’s mental impressions, conclusions, opinions, or legal theories.

e.         D cannot get the letter in discovery, because it is P’s own previous statement about the action or its subject matter.

 ANSWER

a.         D can get the letter in discovery, but only if he can show substantial need of the letter and the inability without undue hardship to obtain its substantial equivalent by other means.

Wrong. This assumes that the letter is work product. But it isn’t. Although the letter was written after the suit began, it was not written “in anticipation of litigation or for trial.” See FRCP 26(b)(3)(A). It is simply discoverable evidence of the falsity of P’s allegation.

b.         D can get the letter in discovery, but P has the right to depose D’s witnesses prior to turning it over.

Wrong. If D had asked for evidence from P that could be used to impeach D’s witnesses, then a court might allow such discovery only after D’s witnesses had been deposed (so that there would be a record of their story before they had taken into account the impeaching evidence). But there is nothing in the question that suggests that the evidence could be used to impeach D’s witnesses.

c.         D can get the letter in discovery.

Correct. There is no reason the letter is not discoverable. (In particular, it is not work product.)

d.         D cannot get the letter in discovery, because to do so would mean revealing P’s mental impressions, conclusions, opinions, or legal theories.

Wrong. There is no reason to think that the letter is opinion work product (which is usually material created by a lawyer).

e.         D cannot get the letter in discovery, because it is P’s own previous statement about the action or its subject matter.

Wrong. The fact that a document is one’s own previous statement is a reason to conclude that the person who made the statement can get it in discovery. See FRCP 26(b)(3)(C). But the fact that a document is one’s own previous statement is NOT a reason to conclude that others CANNOT get it in discovery.

 

 

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