- Study Aids
- By product
- By subject
- Law School Success
- Bar Review
The plaintiff, P, owns and operates a commercial warehouse. An overhead sprinkler system protects the warehouse from fire; a corporation, defendant D, manufactured the system.
The sprinklers are designed to activate when they detect certain levels of heat or smoke. One day, a warehouse employee leaves a pile of oily rags in one of the warehouse aisles. The rags catch fire, and the flames soon spread throughout the warehouse. By the time the fire is controlled, it has destroyed the warehouse and its contents. A subsequent inspection reveals that the sprinkler system should have activated once the rags caught fire, but did not.
The day after the fire, D sends Y, its vice president for risk management, to inspect the site of the fire and to gather information. Y promptly inspects the remnants of the sprinkler system and interviews several warehouse employees. Y then writes, and delivers to D’s president, a report containing all the information Y gleaned via the investigation. The president, in turn, sends a copy of the report to D’s attorney, who works for an outside law firm.
Y’s report contains the following observations and conclusions: (1) the smoke and heat detectors were defective, because when installed, they lacked certain critical parts; (2) had the sprinkler system been working properly, it probably would have put out the fire before significant damage occurred; and (3) D is probably liable for the fire and should try to settle the inevitable lawsuit.
Soon after the fire, P sues D in the appropriate U.S. district court. The court has subject-matter and personal jurisdiction, and venue is proper. During discovery, P learns about Y’s report and serves a formal request for production of documents asking D to produce it. D objects, asserting that the report was prepared in anticipation of litigation and is therefore not discoverable. P then files a motion to compel D to produce the report. Assume that Y is not an expert witness.
The judge holds a hearing on the motion. The evidence shows that when a fire occurs at a customer’s facility, D’s standard procedure is to inspect the scene as soon as possible, and to prepare a summary report. The information in the report is used primarily to troubleshoot and improve D’s products. But when a fire causes major losses, as in this case, D routinely gives the report to its attorney, so that the attorney can prepare for litigation. The evidence also shows that the sprinkler components are still in P’s possession, and all employees with knowledge of the fire still work for P. The judge grants the motion to compel.
As part of discovery, P files and serves a notice of deposition on D, demanding that D produce someone to testify about the sprinkler system’s design. In response, D produces its chief engineer, and the deposition proceeds with D’s attorney present. However, during the trial, the chief engineer is stationed at a customer’s overseas facility, where he has been working (at D’s discretion) for several months. Thus, P seeks to introduce in evidence the chief engineer’s deposition testimony, to prove certain facts about the sprinkler system’s design. Assume that this testimony would be admissible if the engineer were testifying in person. D objects to the use of the deposition, and argues that any testimonial evidence should be presented by a live witness.