Civil Procedure II Final Examination Winter 2006 Essay Answer Outline I. Should federal court have ordered production of Gadget s notes and witness statements? A. Both notes and statements would fall within Rule 26(b)(1) scope of discovery. B. Notes. 1. They are not privileged and are relevant to claims and defenses in this action. 2. However, they may fall within Rule 26(b)(2)(i) limitation as discovery that is obtainable from some other source that is more convenient, less burdensome, or less expensive. 1. Under Hickman v. Taylor, Gadget s notes are protected work product. a. Gadget is American s representative, and these notes were taken in anticipation of future litigation. b. Best argument for compelling production of these notes is that they are unique because they represent investigation at the very time of the accident. c. However, the notes would reveal Gadget s mental impressions and thought processes and therefore are immune from discovery. d. There is no need to reveal these notes because persons whom Gadget interviewed are still available for depositions. e. There well may be a governmental investigation that could provide similar testimony. 2. Under Rules 26(b)(3), plaintiffs would have to show substantial need of these materials in preparing their case and that they are unable without undue hardship to obtain the substantial equivalent of the materials by other means. a. In addition, Rule 26(b)(3) provides the court shall protect against
C. Witness Statements. 2 disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. b. Attorney notes would reveal attorney s mental impressions and therefore should be (totally) protected. c. Substantial equivalent of notes could be obtained by interviewing or deposing these individuals (or from governmental investigation). 1. To the extent that these statements are in the words of the witnesses, there is less protection under Hickman. 2. Under Rule 26(b)(3), parties and persons can obtain copies of their own statements. 3. If witnesses obtain their own statements, American can then obtain those statements from the witnesses. D. To the extent that Gadget is truly American s attorney, it is possible that statement made by pilot could be considered protected by attorney-client privilege. II. Should the federal court have certified the first case as a class action? A. Class actions can be certified pursuant to FRCP 23. 1. All four requirements of Rule 23(a) must be satisfied. 2. Satisfaction of Rule 23(a) requirements: 3. Numerosity may or may not be satisfied, because it may be practicable to join only 39 parties. 4. There are many questions of law and fact common to all class members. 5. Typicality may be a problem because class encompasses both passengers and American employees who may be liable themselves (pilots and stewardesses). 6. It's also unclear whether representative parties would fairly and adequately
protect the interests of all other class members. B. One of three requirements of Rule 23(b) also must be satisfied. 3 1. There are no facts to suggest that individual actions would either (a) establish incompatible standards for defendants or (b) dispose of interests of other parties or substantially impair or impede their ability to protect their interests. 2. Class-wide injunctive or declaratory relief is not being sought. 3. Certification therefore must come under Rule 23(b)(3). a. Common questions of law or fact probably predominate over individual questions (although this might not be the case with pilots and stewardesses). b. Class action may be superior method for fair and efficient adjudication of the controversy. c. In making these determinations, court should apply 4 factors listed in Rule 23(b)(3). d. Class members probably don't have particular interest in controlling their own litigation; there is no other litigation pending concerning this matter; it would make sense to concentrate all claims in this forum; and class action (at least as passengers) would probably be manageable. 4. Perhaps subclasses could be certified in this case. C. Because this would be a Rule 23(b)(3) class, plaintiffs would be required to provide notice to class members. D. Because no more than $5,000,000 is sought in damages, Class Action Fairness Act of 2005 (28 U.S.C. Section 1332(d)) does not apply.
4 III. Can American Airlines assert claim preclusion in second action? A. Full Faith and Credit Clause of Constitution requires states to give full faith and credit to judgments of other states. 1. Under Full Faith and Credit statute, 28 U.S.C. Section 1738, Texas state court must give full faith and credit to the Missouri federal judgment. B. Claim preclusion with respect to some of the plaintiffs should apply in this case. 1. Claim preclusion applies when: a. Same claim; b. Same parties (or parties in privity); c. Valid and final judgment; and d. Judgment is on the merits. 2. Claims asserted in first and second actions apparently are the same. a. Texas state court will look to definition of claim that would be applied by rendering court (Missouri federal court). b. Assuming that Missouri federal court follows Restatement 2d of Judgments transactional definition of claim, claims are the same. 3. Parties are the same. 4. Judgment appears to be final and valid under federal law. a. Under federal law, first judgment is final even though it is on appeal. b. If first judgment were reversed after it has been relied upon as a basis of claim preclusion, second action could be reopened under Federal Rule of Civil Procedure 60(b)(5). 5. Judgment after granting motion for judgment as a matter of law is judgment on the merits. C. Thus Charlie Clueless who was a member of class is bound by first judgment.
5 D. However, claim preclusion cannot be asserted against Paula Passenger because she opted out of class action and therefore was not party to that litigation. E. Nor can Moved be bound by that first action because she received no notice of the action and you can t constitutionally be bound litigation about which she received no notice. IV. Should the federal court have granted American Airlines motion for judgment as a matter of law? A. FRCP 50 provides for judgment as a matter of law. 1. This is also called a motion for directed verdict. 2. This motion allows court to decide case as a matter of law, because no reasonable jury could decide in favor of party against whom judgment is entered. 3. Judgment is appropriate if plaintiff has not satisfied its burden of production. B. Here it s unclear whether plaintiffs have satisfied their burden of production. V. Extra Points. 1. Engineer may or may not have been qualified to offer expert opinion concerning why accident occurred. 2. The only testimony on causation suggested that there were two possible causes for the crash (just as in Reid). 3. With no rational way to choose between the two possible reasons for the accident, plaintiffs have not shown that it s more likely than not that American s negligence caused the crash.