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CH 23 Sanctions in discovery Hypos

QUESTION 1 (45 minutes)


P suing that Nebulas video game Rampage caused behavioral problems. Allege failure to Warn. : (1)
Nebula knew or should have known that Rampage was dangerous when used in a reasonably foreseeable
manner because it could cause violent outbursts; After Nebula answered the complaint, the parties commenced
discovery. Plaintiffs served the following discovery request on Nebula: Produce all documents in Nebulas
possession, including emails and other communications, regarding alleged behavioral problems
associated with the use of Rampage or any of Nebulas other video games. In its response to the document
request, Nebula asserted two objections. First, Nebula objected that the request was overbroad because it
sought materials outside the proper scope of discovery. Second, Nebula asserted the request was unreasonably
burdensome because it would cost Nebula hundreds of thousands of dollars to identify and locate responsive
hardcopy and electronic documents, including electronic documents available only on back up systems. Based
on these objections, Nebula stated in its written response to the document request that it would produce only
documents, e- mails and other communications pertaining to the two plaintiffs involved in the lawsuit, and
would not search back up systems.
Plaintiffs moved to compel production of the requested materials, and for sanctions. Nebula responded to
the motion to compel by arguing that the motion should be denied. Nebula also contended that if the Court were
inclined to grant the motion, sanctions were inappropriate. Finally, Nebula asked that the cost of responding to
the document request be shifted to the Plaintiffs. Judge Kowell has asked you for a memorandum regarding
whether he should grant the motion to compel, impose sanctions, and/or shift costs. Please respond.
Issue: Should the judge grant or deny the motion to compel?
Rule: FRCP 37(a) the motion to compel will be granted if the discovery sought is within
the scope of discovery
Analysis:
Issue: is Ps disc request w/in the scope of discovery?
Rule: 26(b)(1) disc is w/in scope if it is 1) relevant 2) proportional 3) non privileged
and 4) not work prod protection.
Analysis:
Issue: is discovery request relevant?
Rule: disc is relevant if it has any tendancy to make a fact more or less true
or is of consequence to the trial (very broad scope)
Analysis: P requested that D produce all documents in Nebulas possession,
including emails and other communications, regarding alleged behavioral
problems associated with the use of Rampage or any of Nebulas other video
games. This is without a doubt relevant to this case because any docs asso
w/ behavioral problems would definitely have at least SOME tendency to
make a fact more or less true
Conclusion: Yes relevant
Issue: is disc request proportional?
Rule: 26 uses 6 factors 2 determine if disc is proportional to the needs of the
case.
Analysis: 1) importance of issue- here the issue is failure to warn & this is of
great importance bc there could be other kids out there suffering from
behavioral probs or would be at risk of that due to nebulas failure to warn. Its
about more than just $ 2) amt in controversy is $100,000- nebula could
argue this to point out that the amt in controversy is much less than it would

cost (hundred of thousands) to identify & locate all docs that are avail only
on back up systems. 3) the parties access to info- here D has all access so P
would argue it is justified for them to spend more money. 4) the parties
resources- D has much more resources so they are responsible for more but
its not a free ride for P 5) importance in disc in resolving issues- it is very
important in this case bc they need to establish that nebula knew or
shouldve known that it caused behavioral probs and if they have docs or ESI
regarding behavioral probs it would give rise to that factor. But, in regards to
the info regarding games other than rampage, it is likely that that is not as
relevant to their case.
Conclusion: This disc request pretty much proportional. It might be too broad
when asking for info regarding games other than Rampage, but that depends
because it could show a pattern of behavioral problems throughout their
games- depends on judge (But will be limited by ESI see below)
Issue: Are there any limits for ESI discovery requests?
Rule: FRCP 26 (b)(1)(B) precludes disc on ESI that is not reasonably
accessible w/o undue cost provided a showing. (ct can still order disc if P
shows good cause)
Analysis: Here, nebula asserts that the request was unreasonably
burdensome because it would cost Nebula hundreds of thousands of dollars
to identify and locate responsive hardcopy and electronic documents,
including electronic documents available only on back up systems. The
hardcopy docs would not be included here but as for the rest, if nebula could
back up this objection with evidence showing this cost then the judge could
preclude ESI from discover.
- However, it is likely that P will be able to show good cause considering the
importance of this data to the case (as discussed above).
Conclusion: The court has broad discretion to limit ESI discovery. It is likely
that the judge will do something similar to that one case where D should
draw a sample at first instead of complying with the full discovery request. If
indeed the sample returned some positive information for the P, the P could
then continue to obtain more information.
Issue: Is the disc request work prod? No
Issue: is the disc req privileged? NO
Conclusion: Ps request likely is within the scope of discovery, but will be limited by
the ESI limitations due to undue burden (depends)
Conclusion: It is likely that Ps motion to compel will be granted due to the factors above.
The court may require cost shifting to nebula or lawyers for the cost of Ps motion to
compel, unless they failed to in good faith confer (they didnt) or nebulas objection was
substantially justified. It is likely that their 2nd objection to the ESI was substantially
justified, but the 1st objection (overbroad- pretty boilerplat/not specific) is on the fence,
because this material is arguably inside the scope. Depending on how the court views
the 1st objection they will either shift costs or choose not to. (after giving nebula an
opportunity to be heard)
Issue: Are sanctions appropriate for nebula?
Rule: FRCP 37 Sanctions can be imposed only after a motion to compel disclosure. If
granted and the court issues a ct order, sanctions can then be imposed if the party blows
off that court order. Except when the party completely stonewalls discovery by
completely failing to respond rather than object.
Analysis: Here, P moved for a motion to compel and sanctions at the same time. They
shouldve waited for the judge to grant or deny the motion before moving for sanctions.

Further, nebula did object (they did not stonewall) so that second step cannot be
skipped.
Conclusion: Therefore sanctions will not be appropriate.
Cost Shifting for E-discovery
Assuming the motion to compel should be granted, Nebula will want to shift the cost of
the discovery on the P given how costly and time-consuming the discovery request is.
Cost benefit/shifting is governed by 26(b)(C)(iii). cost shifting should be considered only
when the electronic discovery imposes an undue burden or expense on the responding
party. If the court requires a sample of evidence to be taken and that sample returns
nothing back in favor the P's. The P's could then ask for further discovery and at that
point the burden of cost should shift onto them.
Penny is injured in a motor vehicle collision with Dirk. Penny files a timely personal injury
lawsuit in Alaska Superior Court. Pennys claims arising from the accident include costs of her
medical care to date, pain and suffering, and emotional distress. Dirk has admitted liability for
causing the accident. Accordingly, the job for the jury will be limited to determining damages.
Dirk serves Penny with extensive discovery requests, including the following interrogatory:
Please identify every medical, mental health and substance abuse provider you have
seen, both since the accident and for 10 years preceding the accident of May 10, 2010,
for any treatment or condition. In your answer, please state the inclusive dates of care and
the treatment or condition for which you obtained care.
Penny responds to Dirks Interrogatory with the following: Objection, the request violates the
physician-patient privilege. The request is also irrelevant, invasive, and intended only
to inconvenience and embarrass plaintiff. This is a car accident case and plaintiff will not
disclose her personal affairs or anything related to private matters such as counseling. Without
waiving these objections:
James Symborski, DDS, 1994-present, dental care.
City General Hospital, 2010, car accident, 2011, surgery for car accident injuries.
Mountain Orthopedics, 2010-2011, injuries from the 2010 car accident.
Wilson Physical Therapy, 2010, car accident injuries.
In fact, Penny has seen mental health care providers and has had substance abuse
treatment.
Dirk immediately files a motion to compel Penny to respond fully, and for
sanctions against Penny. Dirks motion argues that under Alaska law Penny must fully comply
with his Interrogatory; that Pennys claims necessitate that he be able to discover the requested
information to investigate the issues; that Penny and her counsel knew the law but willfully and
in bad faith obstructed and delayed discovery; and that Pennys intentional non-compliance
justifies court-ordered sanctions. Penny opposes.
1. Should the Court grant or deny Dirks motion to compel? Explain your answer, and provide the
pertinent procedural and legal grounds for your answer.
2. Should the Court grant or deny Dirks motions for sanctions? If sanctions are granted, what
sanctions might be appropriate? Explain your answers, and discuss the pertinent procedural and
legal grounds.
Issue: Should court grant Dirks motion to compel?
Issue: Did Dirk satisfy the procedural requirements of a motion to compel?
Rule: FRCP 37a governs motions to compel
Analysis: Dirks motion to compel must have included a certification that the movant has in
good faith attempted to confer with penny and the facts do not state that his motion
contains that, they even state that he immediately filed the motion
Conclusion: The court will be unlikely to grant the motion if Dirk did not first attempt to
confer with penny and did not include that certification

Issue: Is this evidence in the scope of discovery?


Rule: FRCP 26
Analysis:
Issue: is the discoverable matter relevant?
Rule: 26(b)(1). Evidence is relevant if: 1) It has any tendency to make a fact

more or less probable than it would be w/o the evidence AND 2) The fact is
of consequence in determining the action Very broad scope
Analysis: This is a very liberal standard, and here the P is seeking discovery
of all medical records, mental health and substance abuse provider from the
past 10 years as well as since the accident. In light of the broad standard, it
is likely that Dirks request is relevant because there is a real possibility that
this evidence would have at least some tendency to make a fact more or less
probable.
Conclusion: It is relevant
Issue: Is the discoverable matter proportional?
Rule: 26(b)(1). The court would analyze 6 factors to determine whether Ps
email request was proportional to the needs of the case.
Analysis: 1) Pennys personal injury is an important issue because she
suffered injuries. 2) We dont know the amount in controversy, but if it is as
much as it would cost P to search through all her medical records then it
would help D 3) P here has access to all the info so this puts D at a
disadvantage, so P having to give up her mental health info evens out the
asymmetry. 4) P would argue That her mental health records are a source of
embarrassment and is overburdensome, but she brought up this issue by
claiming IIED. She would also argue that 10 years is too broad and it should
be limited. 6) Is burden> benefit? Here P has burden to prove its too
burdensome bc it is a private personal and embarrassing matter. D has less
specificity in her burden of showing the benefit because its harder to
estimate.
Conclusion:
o Discovery of mental health info: This is likely proportionate because
her mental health info is directly related to her claim of IIED to
ascertain damages.
o Substance abuse records: This is likely proportionate as well, but
because of the discretionary nature and because it is less
proportionate to the case, the ct might compel production but issue
some type of protective order maybe requiring that only certain people
have access to the interrogatory.
Issue: Is the discoverable matter non-priveleged?
Rule: 26(b)(1). Matter is privileged when it is protected from discovery (and
from admissibility of evidence at trial) by an evidentiary privilege.
Analysis: Yes bc she put this privileged matter up for trial
Conclusion: Not privileged
Conclusion: In imposing or declining to impose an Order Compelling, the Court has broad
discretion and will likely choose a middle path. Because this discovery is likely
discoverable then the court will likely suggest that Dirk may file a revised Motion, this
time complying with the requirements of the Rule.
Issue: Should the court grant or deny the motion for sanctions?
Rule: 37
Analysis: Dirk filed a motion for sanctions because P failed to answer an interrogatory.
1) Must include a certification that he in good faith tried to conferthis does not

2) Penny objected to the interrogatory, but to be safe she should move for a protective order
protecting this discovery and also to ensure sanctions wont be imposed.
Conclusion: Sanctions are not likely to be imposed because they did not confer, there is no
certification, and he is just now moving for a motion to compel. If sanctions are imposed however
they will be moderate. A moderate sanction might be a monetary one against Penny or her
counsel (e.g., reasonable costs of bringing the motion), together with a warning that continued
evasion may expose her to more severe sanctions. But a court cannot order cost shifting if the
motion was substantially justified.