TRIAL PREPARATION & DISCOVERY PLAN Case against

A. Good Student

4/5/10

Chapter 8, Written Assignment #1

Virginia

TRIAL PREPARATION & DISCOVERY PLAN

Case against HorsePower, Inc.

The overall goal is to prove that HorsePower, Inc. (herein “HorsePower) is liable for the

following claims: products liability, personal injury, property damage, and breach of implied

warranty of merchantability under the UCC. Sally is seeking at least $2 million dollars in

compensatory damages, exclusive of interests and costs, and the sum of $1 million in punitive

damages.

1. Preliminary Motions/Hearings/Orders

a. Litigation hold on all of HorsePower’s electronic and paper data memorialized in

an order

b. Pretrial Conference

i. Initial discovery scheduling order

ii. Ask for Electronic and Media Discovery

2. Facts to be proven/Elements that need to be met

a. Products Liability

i. Duty - HorsePower had a duty to use ordinary care in manufacturing its

products to avoid injury to others and property of others

ii. Breach – HorsePower breached its duty by designing a roll bar it knew

would not perform adequately

iii. Causation – The roll bar failed when Sally’s car rolled over

Student’s permission was given for this assignment to be used.

iv. Damages – Due to the failure of the roll bar, Sally suffered serious bodily

injury, and the car was totaled

b. Personal Injury

i. Duty, Breach, Causation same as above

ii. Damages

1. Lacerations to face that required 60 stitches and plastic surgery,

concussion, broken bones, partial paralysis, and mental anguish.

2. Hospitalization for over 6 months

3. Large amount of medical expenses

c. Property Damage

i. Duty, breach causation and damages same as above

ii. Damages

1. Plaintiff purchased Stallion for $30,000

2. Stallion is now totaled and valueless

d. Breach of Implied Warranty of Merchantability

i. HorsePower is a manufacturer

ii. HorsePower is a merchant who deals in kinds of the goods sold

iii. There was an implied warranty that the car was fit for the ordinary

purposes for which it was sold

iv. Warranty was breached – the roll bar failed when the car rolled over

v. Sally suffered personal and property damages

3. Informal Investigation

a. Attorney will conduct informal investigation to gather as much information as

possible to help shape the formal discovery and witness lists.

b. Photographs - from the time of accident showing: Sally’s Car (particularly the roll

bar), Sally’s injuries.

c. Records – Records from HorsePower regarding other complaints or suits

regarding role bar, manufacturing records, roll bar design, sales contract between

Horsepower and Dealer and Dealer and Sally, the accident report, and Sally’s

medical records

4. Discovery

a. Requests for Production –

i. Including Definition Section

ii. Documents identified in interrogatory responses

iii. Documents showing persons with knowledge of any fact related to the

design, manufacturing, or guarantee of the roll bar

iv. Documents regarding the design plans of the roll bar

v. Documents showing the research and development process for the roll bar

vi. Memos, emails, etc. showing communication between designers and

company regarding the roll bar

b. Subpoenas Duces Tecum

i. Automotive Manufacturing Association – all studies on roll bars, safety

design, and industry standards

ii. Third-party designers or manufacturers the company used in designing or

manufacturing roll bars – documents regarding the design and

manufacturing of the roll bars

c. Interrogatories

i. Including definition section

ii. Contention Interrogatories

1. Seeking facts supporting denials of allegations in the complaint

2. Seeking identification of all persons with knowledge of such facts

and all documents related to those facts

iii. List all dealers they sale Stallions to and agreements/contracts between

them, including the dates of the sales

iv. Expert witnesses

1. They may call at trial, including ones they retained to testify on

their behalf.

2. Describing the information they have been exposed to

3. Opinions they have formed, including basis for opinions and

reports produced by them

4. Providing contact information

v. Lay witnesses

1. Contact information

2. Knowledge relevant to the case

3. Facts they will testify to

d. Depositions – will be edited based on informal discovery, interrogatory and RFP

answers.

i. Critical expert witnesses

ii. Party witnesses

iii. Critical lay witness

e. Requests for Admissions – will be edited based on informal discovery,

interrogatory, RFP answers, and depositions.

i. That they guaranteed the roll bar made the Stallion the safest convertible

on the road

ii. That they did indeed manufacture the Sally’s Stallion

iii. That they did not waive the Implied Warranty of Merchantability

iv. That the roll bar failed when the Stallion rolled over

v. Other requests for admissions to be determined during the discovery

process

f. Information we will not seek in discovery and why – also to be edited during

informal discovery phase

i. Fatal but correctable weaknesses in opponents case - If it is determined

that there are fatal weaknesses in opponents case that could be corrected if

they were aware of them, then we would not seek discovery on those

issues in order to prevent alerting them of their own weaknesses.

ii. Fatal and possibly uncorrectable weaknesses in our case – we will be

careful to not ask for discovery for something that imply to HorsePower

that we do not have what we need to prove all the elements of our case. In

that situation, we would seek the information through subpoenas duces

tecum and other ways not involving HorsePower directly to make sure our

elements are met.

iii. Specifically what these things are will be determined during the informal

investigation and after the complaint and answer have been served.

5. Witnesses

a. Lay Witnesses

i. Sally – to testify as to the purchase of the car, the warranties/guarantees

made to here, the sales contract, the accident, her injuries, damage to the

car, and other facts to be determined during discovery.

ii. Dealer who purchased the Stallion from HorsePower – to testify as to the

contract between dealer and HorsePower, warranties/guarantees made,

that the implied warranty of merchantability was not waived, contract

between Sally and dealer.

iii. Other Stallion owners who have had complaints regarding the roll bar – to

testify as to the failure of the same roll bar type in other accidents.

b. Expert Witnesses

i. Metallurgist - to testify to the research and development, design and

manufacture, production management and quality assurance of this type of

metal and whether it was appropriate to use for a roll bar

ii. Automobile Roll Bar Design expert - to testify as to whether the bar was

designed correctly and whether company would have known that it would

not withstand rollovers

iii. Professional who declared the car totaled - to testify to the fact that the

car is totaled because the roll bar failed, and to testify to the fact the car is

now valueless

c. Consulting Witnesses

i. Metallurgist – to assist in determining whether this was a proper metal to

use for a roll bar, and whether the design process weakened the metal

ii. Auto manufacturing expert - whether the company used the appropriate

quality control and production/design techniques.

iii. Car Safety Expert – to compare and contrast this accident with other roll

bar accidents to help determine whether most roll bars would have

withstood this type of accident.