Examination Number ________________





Professor Carl H. Esbeck Winter Semester 2009





Civil Procedure II, 5015L, Section 1



Directions to Part I - Essay

(1 hour)


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

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


Answer only the question asked. Do not raise or answer questions not asked.


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 use your laptop to complete this Part I.


If you do not use your laptop, 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. 


You may bring with you into the examination room your casebook, photocopied class handouts, your current federal rules supplement, and your own classroom notes (not borrowed notes). You may also bring a course outline provided it is entirely your own work product. It is an Honor Code violation to have any other materials with you during the examination.



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


PART I (1 hour)


Question One (10 minutes): First, during a jury trial assume that at the close of plaintiff's case-in-chief, defense counsel moves for a judgment as a matter of law. Second, during a bench trial assume that at the close of plaintiff's case-in-chief, defense counsel moves for a judgment as a matter of law. In which of these two trials is a successful result on the defendant's motion easier to obtain, or is the chance for success by the defendant the same? Explain.



Question Two (15 minutes): During discovery in a federal civil lawsuit, defense counsel (Susan) timely raises a claim of work-product privilege with respect to a document sought by plaintiff. The claim of privilege is denied by the district court. Certain that the trial judge is wrong, Susan refuses to comply with an order to compel discovery issued pursuant to FRCP 37(a). Following a hearing, Susan is found in contempt of court and ordered to be held in jail by the U.S. Marshall until she complies with the order to compel. Susan immediately appeals to the circuit court arguing that the document the plaintiff seeks to discover is work-product privileged. Is this permitted? Explain.



Question Three (15 minutes): Assume a civil trial in federal court between two corporations involving alleged securities fraud. There are six jurors and one alternate. The trial lasts just under a week from voir dire to verdict. Unknown to the judge, counsel, or other court personnel, juror #3 used Twitter at several points during the trial via her cell phone. Juror #3 sent a running commentary of her thoughts ("tweeted") about witnesses and other evidence, counsel for plaintiff and defense, and the judge and his rulings. This was done during breaks when the jury had retired to the jury room, as well as during evenings from juror #3's apartment. On the receiving end of these Twitter posts ("tweets") were eighteen of juror #3's blog-reading friends. Some of the eighteen read every "tweet" by juror #3, but others read only one or two and soon lost interest. None of the eighteen posted a reply ("retweeted") to juror #3, but one of the eighteen used the information to sell stock held in the plaintiff/corporation. The case was submitted to the jury at 3:00 p.m. Thursday afternoon. A verdict for defendant was returned Friday morning at 10:30 a.m. Plaintiff's counsel later learns of juror #3's tweeting, puts the information in an affidavit signed by juror #3, and files it with the court. Plaintiff now timely moves to set aside the verdict and order a new trial. Jurors #4 and #6 were interviewed by the judge and they tell him that they saw juror #3 tweeting and used their own cell phones to read juror #3's tweets, but said nothing about the matter to anyone else. How should the court rule? Explain.



Question Four (20 minutes): Bring to mind the holding in Semtek International v. Lockheed Martin Corp. (2001). Following the decision in Semtek, assume Congress enacts new legislation. The legislation says that the second sentence in FRCP 41(b) is repealed. The legislation goes on to say that in federal court civil actions where state law is the basis for the claim, the question whether an involuntary dismissal is "on the merits" for purposes of claim preclusion and issue preclusion is controlled by the state law where the federal court sits. Would this new legislation change the result and rationale should a case just like Semtek come up today? Explain.



* * * END OF PART I * * *


Turn in both these examination Questions and your Answers.


After a 10 minute break, all students will begin Part II together.