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CaliforniaBarExaminationEssay QuestionsandSelected AnswersJuly

The State Bar of CaliforniaCommittee of Bar Examiners / Office of Admissions180 Howard Street San Francisco, CA 94105-1639 (415) 538-2300845 S. Figueroa Street Los Angeles, CA 90017-2515 (213) 765-1500ESSAY QUESTIONS AND SELECTED ANSWERSJulyCALIFORNIA BAR EXAMINATIONThis publication contains the five essay questions from the July California BarExamination and two selected answers for each question.The answers were assigned high grades and were written by applicants who passed theexamination after one read. The answers were produced as submitted by the applicant,except that minor corrections in spelling and punctuation were made for ease inreading. They are reproduced here with the consent of the authors.Question NumberSubject1.Civil Procedure2.Remedies / Constitutional Law3.Criminal Law and Procedure4.Professional Responsibility5.Contracts

ESSAY EXAMINATION INSTRUCTIONSYour answer should demonstrate your ability to analyze the facts in the question, to tellthe difference between material facts and immaterial facts, and to discern the points oflaw and fact upon which the case turns. Your answer should show that you know andunderstand the pertinent principles and theories of law, their qualifications andlimitations, and their relationships to each other.Your answer should evidence your ability to apply the law to the given facts and toreason in a logical, lawyer-like manner from the premises you adopt to a soundconclusion. Do not merely show that you remember legal principles. Instead, try todemonstrate your proficiency in using and applying them.If your answer contains only a statement of your conclusions, you will receive little orno credit. State fully the reasons that support your conclusions, and discuss all pointsthoroughly.Your answer should be complete, but you should not volunteer information or discusslegal doctrines that are not pertinent to the solution of the problem.Unless a question expressly asks you to use California law, you should answeraccording to legal theories and principles of general application.

QUESTION 1In, Priscilla was shopping at Grocery when a very large display of bottled sodaproducts fell on her, bruising her head and entire body. She filed suit in federal districtcourt against Grocery for negligently maintaining the display, and sought damages formedical expenses, pain and suffering, and lost wages. Grocery recognized thatjurisdiction was proper and filed an answer denying liability.Accompanying the complaint was a set of 26 interrogatories, which read in part:25. Please provide the names and addresses of every Grocery employeewho worked on construction of the soda display and every sodacompany employee who did so.26. Please provide copies of every training manual Grocery has used intraining its employees.Grocery responded: “Objection. These interrogatories are flawed.” Upon receiving thereply, Priscilla filed a motion to compel further responses.Grocery made two discovery requests asking for:a.b.An order requiring Priscilla to submit to mental and physicalexaminations.All of Priscilla’s tax returns since 1995.Priscilla opposed both discovery requests and Grocery filed motions to compel.Before Priscilla filed her lawsuit, Grocery hired Xavier, an expert on grocery storedisplays, to investigate the accident. His findings were unfavorable, and Grocery hasnot identified Xavier as a witness. Xavier is an independent contractor, but he worksexclusively for Grocery.Included in Priscilla’s original set of interrogatories was a question seeking the namesand opinions of all experts Grocery had hired for the litigation. In response to thatinterrogatory, Grocery replied: “Objection. Privileged.” No information about Xavierwas disclosed by Grocery.1.2.3.4.How should the court rule on Priscilla’s motion to compel further responses to herinterrogatories to Grocery? Discuss.How should the court rule on each of Grocery’s motions to compel? Discuss.Was Grocery’s response to Priscilla’s interrogatory about its experts proper?Discuss.Should the court sustain Grocery’s assertion of privilege with regard to Xavier?Discuss.

QUESTION 1: SELECTED ANSWER APriscilla's motion to compel further responses to her interrogatories to Grocer.PROPER SCOPE OF DISCOVERYA threshold issue is whether Priscilla's ("P") interrogatories were proper in scope. Underthe Federal Rules of Civil Procedure, a litigant is entitled to discover all non-privilegedinformation relevant to the subject matter of the litigation so long as the requests are notdisproportional to the needs of the litigation. Relevance is defined broadly and is notlimited to evidence that will be admissible at trial. To obtain relevant information, alitigant may use several discovery devices, including interrogatories, to another party.The party responding to interrogatories must provide written responses, under oath,within 30 days of service of the interrogatories. However, a responding party need onlyprovide information within its possession, custody, or control after a reasonably diligentsearch or inquiry.Here, P has asked for the names and addresses of every Grocery ("G") employee whoworked on construction of the display. The identification of such employees is relevantto determining who created and maintained the display and, therefore, is relevant to P'snegligence claim. However, the request is overbroad in seeking the addresses, if P isseeking home addresses. The disclosure of such information would likely be anunwarranted invasion of the employees' privacy, irrelevant and disproportional to theneeds of the case. The part of that request is improper and should not be compelled.

P also has asked for the name and address of every soda company employee whoworked on the display. A party responding to written discovery requests need onlyprovide information within its possession, custody or control. G does not need to obtaininformation from the third-party soda company, unless G has the right to request thatinformation from the soda company. The facts here do not indicate that G had that right,and, therefore, the request should not be compelled as to that part of the request.In addition, P has requested copies of every training manual G has used in training itsemployees. On the one hand, G's training with regard to the construction andmaintenance of such displays as the one at issue is relevant and thereforediscoverable. P's request is not limited to any particular type of training or particular timeperiod. G may have training materials from many years ago entirely unrelated to thecreation of product displays, and the request would be overly broad and undulyburdensome as to those requests given the issues dispute. The court should not compelsuch unrelated materials.TIMING OF WRITTEN DISCOVERYIn issue is whether the timing of P's interrogatories is proper. Under the Federal Rules,a party cannot serve written discovery, except for requests for production, before theRule 26(f) conference. Here, P served her interrogatories with the complaint. This waspremature, and G is not required to answer them, and the Court should not compelanswers at this point.PRESUMPTIVE LIMIT ON INTERROGATORIESAnother issue is whether P served too many interrogatories. Under the Federal Rules,there is a presumptive limit of 25 interrogatories, including discrete subparts, unless a

party receives leave of court. Here, P served 26 interrogatories, with the complaint.Accordingly, she has exceeded the presumptive limit without leave, and G is notrequired to answer interrogatory #26. The court should not compel an answer to thatinterrogatory.NEED TO MEET AND CONFERIn issue is whether P met and conferred with G before filing her motion to compel.Under the Federal Rules, a party must attempt to meet and confer with the respondingparty in good faith in an effort to resolve any discovery disputes before moving tocompel further responses. Any motion to compel must contain a certificate or statementof compliance with this requirement. Here, upon receiving the reply from G, P filed amotion to compel. There are no facts indicating that she tried to meet and confer, or thatG was unwilling to do so. Accordingly, P's motion was improper or, at least premature,and the court should not grant it.ADEQUACY OF OBJECTIONSA party responding to written discovery requests, including interrogatories, must statehis objections specifically. If an answer is only in part objectionable, a responding partymust specify the part objectionable and answer the remainder. In this matter, G simplystated that "These interrogatories are flawed." This was not a proper objection to therelevance, scope, burden, or objectionable basis of the interrogatories. Having failed tomake proper objections, G has likely waived his objections.

2. Grocer's motions to compel two discovery requests.TIMING OF DISCOVERYAs noted above, written discovery cannot be served until after the Rule 26(f)conference. As such, G's two discovery requests may also be premature, but the factsdo not clarify when G made his requests.NEED TO MEET AND CONFERAs also noted above, a party must meet and confer before seeking to compel discoveryresponses. The facts here do not indicate whether G tried to meet and confer with Pbefore filing his motions.GOOD CAUSE FOR EXAMINATIONSAn issue is whether G properly requested mental and physical examinations of P.Unlike other discovery requests, obtaining a mental or physical examination of a partyunder the Federal Rules requires a court order based on a showing of good cause,unless the party consents. In this case, G did not seek a court order but appears tohave served a request for an order directly on P. She opposed the request, implying herlack of consent. Accordingly, G was required to file a motion seeking an order forexamination. In this context, the court may treat G's motion to compel as requestingsuch an order if good cause is shown.G is likely to show good cause as to the physical exam. P has filed a negligence lawsuitseeking medical expenses and pain and suffering. By seeking such damages, she hasput her physical condition at issue, and G should be entitled to obtain an independentmedical opinion as to P's prior physical condition and the extent of her injuries. While P

may argue that such an exam is unduly intrusive that argument is unlikely to succeedfor a physical exam, and the court should allow the exam. P would be entitled to haveher attorney attend the examination to help protect her interests.G is unlikely to show good cause as to the mental exam. While P has asserted pain andsuffering, she has not expressly asserted emotional distress. G does not need to inquireinto her emotional state to present evidence that would allow a jury to determine theamount of pain and suffering. Therefore, given the highly intrusive nature of such anexam, the court should not allow it here.SCOPE OF DISCOVERYAnother issue is the scope of G's request for P's tax returns. While G is entitled toinformation about P's past earnings because she has claimed lost wages, therebyputting her earning capacity at issue, G's request for tax returns goes back 20 years.Requesting documents dating back that far has little probative value and the burden onP of obtaining and producing them is likely disproportional to the needs of the case.3. Grocer's response to Priscilla's interrogatory regarding experts.DISCOVERY OF EXPERT EVIDENCEAn issue is whether P is entitled to the names and opinions of G's experts. Under theFederal Rules, a party has an affirmative obligation to disclose basic information aboutits testifying experts, including the identity of the expert, the opinions to be offered, thefactual basis for those opinions, and the expert's qualifications. Here, if G intends tooffer X's testimony he must disclose this information, and P's requests for it would beproper.

PROPRIETY OF OBJECTIONSAs noted above, a party objecting to discovery requests must make its objectionsspecific. Here, G has not provided sufficient information to know the basis of hisobjection. Merely stating "privileged" does not indicate whether he is asserting attorneyclient privilege, work product protection, or some other basis. To assert a privilege, aresponding party must provide sufficient information for the requesting party to test thevalidity of the assertion, usually by providing a privilege log. G has not provided anyinformation. Accordingly, his objection is likely inadequate and risks waiver.4. Grocer's assertion of privilege regarding Xavier.In issue is whether G's expert, X, is merely a consulting expert. Information about aparty's consulting expert, meaning one who is not going to testify at trial, is generally notdiscoverable except in very limited circumstances. Here, G hired X before the lawsuitwas filed to investigate the accident and has not identified X as a witness. These factstend to indicate that G obtained X merely as a consultant, and information about hisopinions would not be discoverable. The court should deny discovery if merely aconsulting expert.Another issue is whether the attorney-client privilege applies to communications with X.To assert the attorney-client privilege, G must show a confidential communicationbetween a lawyer and client made for the purposes of requesting or receiving legaladvice. The privilege extends to agents, including independent contractors, of both theattorney and the client, if their communications are made in connection with theattorney-client relationship. In this matter, G has not shown the involvement of any

attorney or that any communications with X were in connection with requesting orreceiving legal advice. Accordingly, the court should not sustain G's assertion ofattorney-client privilege here.

QUESTION 1: SELECTED ANSWER BPriscilla's motion to compelScope of discoveryUnder the Fede