1. Rule 26c governs protective orders. The court may, for good cause, order a protective order to
keep material from being discovered in order to protect a party or person from annoyance,
embarrassment, oppression, or undue expense/burden. Rule 26b governs the scope of
discovery, and states that parties may discover nonprivileged material that is relevant to any
party’s claim or defense and proportional to the needs of the case. Since the requested material
is within the appropriate scope of discovery (lost income relevant to damage claims) and is not
privileged (no such thing as financial privilege), the only question is if there is good cause to stop
the disclosure of the information regarding lost income. It is a high bar to allow otherwise
discoverable information to be shielded, and it is likely that the high bar has not been met here.
This information is not hard to obtain (undue expense/burden) and has been put at stake in the
action (annoyance/embarrassment/oppression).
2. Yes, the majority of these emails need to be disclosed to the plaintiff. The key exception is the
final email that states that Defendant’s attorney spoke with an expert who testified that the
house could not be built according to plan without blocking Plaintiff’s view of the sunset. Rule
26b4D states that a party may not usually discover facts or opinions held by an expert who was
retained for trial preparation and is not expected to be called at trial. This is the case here, as
Defendant will certainly not be calling the expert to the stand. The exceptions to this Rule are if
it is a medical report, or if there are exceptional circumstances showing that it is impracticable
for the other party to get this information by other means. Here, they could easily get this
information from other experts. Otherwise, the emails are discoverable as they tend to prove or
disprove an element of point 11 of Plaintiff’s claim, that Defendant engaged Sophie to draw up
plans for her house.
3. Yes, this will be a problem. Rule 37e governs the duty to preserve electronically stored
information in advance of litigation. It says that if this information is not preserved because a
party failed to take reasonable steps to preserve it, the court may order measures necessary to
cure it if they find it prejudices the other party. Letting a temporary legal assistant handle this
without ensuring key information for trial is preserved is bad. Hopefully, the interview with Mrs.
Piazza can be replaced, but the other information may lead to the court taking action if they find
this was done with intent. They could presume that the lost information was unfavorable to us,
instruct the jury that it should presume the information was unfavorable, or even dismiss the
action or enter a default judgment.
4. No, there is nothing to be done here. Rule 30 states that a party can depose anyone without
leave of court. Unless this would be Plaintiff’s 11th deposition or the deponent was already
deposed, we have no justifiable reason to block the deposition of Jon Wally.
5. The relevant rule for summary judgement is Rule 56, which provides that the court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. The evidence will be viewed in the
light most favorable to the nonmoving party and any reasonable inferences of fact will be drawn
in the nonmovant’s favor. Based on the case available and its definitions of “structure” (any
alteration affecting the building or structure) and the rules of enforcing a restrictive covenant (a
party must show that the restriction applies to the property either by the covenant’s express
language or by a plain unmistakable implication), it is very likely that the court would grant
summary judgment in favor of Plaintiff. Plaintiff can meet their burden for summary judgment by
showing that the Defendant has provided no information to defend against their claim. Here,
Defendant’s affidavit is insufficient to show that she did not understand the plain, unmistakable
intention of Plaintiff to keep his first and second floor sunset views.