Examination Number ________________





Professor Carl H. Esbeck Winter Semester 2006





Civil Procedure II, 5015L, Section 1




Directions to Part I - Essay

(60 minutes)


Place your examination number in the upper right-hand corner of this examination.

When finished, return your essay examination questions and submit your essay answers.


Arrange your answers in sequential order. That is, put your answer to Question 1 first, then your answer to Question 2, and etc. If you want to skip over a question and come back to it later, leave a page or two blank and begin the next question.


You may bring with you into the examination room your casebook, photocopied class handouts, your federal rules supplement, and your own classroom notes. You may also bring a course outline provided it is entirely your own work product. No other materials are permitted.


If you have elected to use your laptop computer, the instructions below concerning bluebooks do not apply.


Write your answer in the bluebook provided. Use a pen with blue or black ink.

Write on only one side of each page. Do not write in the left-hand margin. Do not tear pages out of the bluebook.


* * * Part I begins on the Next Page * * *








PART I (60 minutes)



Question One (25 minutes): There was an airplane crash in Kentucky resulting in the injury or deaths of the 56 persons aboard the plane. The plane had departed from Dallas and its destination was New York City. A negligence lawsuit is brought against American Airlines [AA] in a Texas state trial court by the estate of a Texas resident killed in the crash. The ensuing trial against AA resulted in a verdict of $600,000 for plaintiff. Judgment is entered on the verdict and there is no appeal.


A second negligence lawsuit is brought against AA in a New York state trial court by the estate of a different Texas resident killed in the crash. This plaintiff sought to invoke collateral estoppel against AA. In an order, without further explanation, estoppel was denied "because AA lacked a full and fair opportunity" in the first suit. The case is awaiting a trial.


Next, a third negligence lawsuit is brought against AA, this time filed in a New York federal district court by a New York resident injured in the same crash. This plaintiff invokes collateral estoppel. AA resists the motion on the basis that Texas recognizes only defensive non-mutual collateral estoppel. Nevertheless, the court enters an order giving issue-preclusion effect on the issue of negligence as a result of the judgment of the Texas trial court. The federal district court distinguishes the earlier ruling by the New York state court on the basis that the ruling was from New York, not Texas. "New York," writes the federal district court in its order, "has completely abandoned the rule of mutuality, and, in any event, this court is merely giving more (not less) full faith and credit to the Texas judgment than a Texas court would give to its own judgment."


AA immediately files a notice of appeal to the federal circuit court of appeals citing 28 U.S.C. §1292(a), and in the alternative invokes the collateral order doctrine. What are the issues on appeal, and how should the court of appeals rule on each of them? Explain.



Question Two (10 minutes): With reference to federal practice and procedure, compare the following: (a) the standard of review of a court of appeals asked to reverse a trial judge because the findings of fact made by the trial judge in favor of defendant are clearly erroneous; with (b) the standard of review of a trial judge asked to grant a new trial because the verdict for defendant is contrary to the great weight of the evidence.



Question Three (25 minutes): While riding her bike along the MKT trial, Amy Aniston falls onto a barbed-wire fence separating the trail from land owned by the Sierra Cattle Company [SCC]. Amy is seriously injured and sues SCC in federal district court. Just two days after the accident, the attorney for SCC takes a recorded statement from SCC's hired hand, Hyde Bound, who is responsible for maintaining the fence. On the same day the attorney interviews over the telephone Gwen Schwinn, a bicyclist who was in the vicinity at the time of the accident and rendered first aid. Two months after Amy files her lawsuit, the SCC attorney also takes an unsigned statement from Sam Perkins, an additional eyewitness to Amy's accident. Sam is Amy's former boyfriend, who since the lawsuit was filed has become so unfriendly toward Amy that he will not even speak to her attorney. During the initial unilateral discovery disclosures, which are now completed, there is no mention of the three witnesses or their statements.


(A)   Amy's attorney now serves an interrogatory asking for a list of all known eyewitnesses and, as to each such eyewitness, asking if and when SCC's attorney took a statement from them. SCC's attorney objects stating that the question seeks "privileged & trial preparation" information. Upon motion to compel, will SCC be ordered to answer? Explain.


(B)   Next, Amy's attorney makes a request under FRCP 34 for the statements of all witnesses. Must SCC produce any or all of these three statements? Explain.


(C)   Assume it is now 18 months since Amy first filed her lawsuit and just 30 days before the trial is set to begin. Through hard work, a bit of luck, and the expenditure of $3,700 for the efforts of a private investigator, the attorney for SCC has just uncovered another eyewitness to the accident. His name is Bill Bay. What Bill has to say favors Amy more than SCC, thus SCC does not intend to call Bill as a witness at trial. Amy's legal counsel telephones the SCC attorney and requests "the name and address of all known eyewitnesses." SCC's attorney declines to answer citing "work product privilege." Was this wrong, or must SCC provide this information to Amy's legal counsel? Explain.




*** END OF PART I ***



Return these essay examination questions and submit your essay answers.

After a short break, your class will start together Part II of the examination.