Clark_11e-AM-Ch03.doc

Clark_11e-AM-Ch03.doc - C HAPTER 3 C OURT P ROCEDURES...

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17 C HAPTER 3 C OURT P ROCEDURES A NSWERS TO C RITICAL A NALYSIS Q UESTIONS IN THE F EATURE EMERGING TRENDS—FOR CRITICAL ANALYSIS (PAGE 67) 1A. How might a large corporation protect itself from allegations that it in- tentionally failed to preserve electronic data? A corporation might defend against charges of intentional destruction or loss of data by showing, for example, that the ab- sence is due to the implementation of a policy to periodically purge electronic systems. Such charges might be avoided by not destroying the data but instead storing it. 2A. Given the significant and often burdensome costs associated with elec- tronic discovery, should courts consider cost shifting in every case involving electronic discovery? Why or why not? A court should consider cost shifting in every case in which the parties’ abilities to afford the cost are unequal, because elec- tronic discovery can be expensive. Typically, the cost is more easily borne by, for exam- ple, a large corporation rather than a private individual, who might otherwise not re- quest discovery. A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 3.1—(PAGE 59) 1A. Suppose that Cruz had misaddressed the envelope, but the summons had still reached Hayes and Cruz could prove it. Would this have been sufficient to establish valid service? Explain. Evidence that a mailed summons actually reached the individual to be served should be sufficient to establish valid service, even if the en- velope was misaddressed or some other circumstance indicated that the summons might have gone astray. Thus, if Cruz were able to provide evidence that a corporate officer or an agent for service of process actually received a summons, this should have been suffi- cient to establish compliance with the requirements for service of process, regardless of the address on the envelope. 2A. Should a plaintiff be required to serve a defendant with a summons and a copy of a complaint more than once? Why or why not? More than one service is
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18 UNIT ONE: THE LEGAL ENVIRONMENT OF BUSINESS not more likely to receive a response. Besides, it would be unfair to the plaintiff to re- quire more than one service. As the court pointed out in the Cruz case, for example, “[a] plaintiff who has provided evidence that a person authorized to receive mail on behalf of a corporation in fact received an item that was mailed to an officer of the corporation should not be held responsible for any failure on the part of the corporate defendant to effectively distribute that mail.” CASE 3.2— (PAGE 63) WHAT IF THE FACTS WERE DIFFERENT? Suppose that Brotby had not made frivolous objections and baseless motions, but still had failed to comply with discovery requests. How might the court’s ruling in this case have been different? The result probably would have been the same. The federal rule that sets out the penalties and the factors for their application does not make a distinction between “frivolous objections and baseless motions” and
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Clark_11e-AM-Ch03.doc - C HAPTER 3 C OURT P ROCEDURES...

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