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Civil Procedure

Exam 18
30 minutes

Fact Pattern

A’s Boutique is a small retail store that sells clothing and home décor. One day, customer C buys some items at the store and pays with a personal credit card. Two weeks later, C notices $1,500 in unauthorized charges on the card. An investigation reveals that someone stole the card information from A’s Boutique, and then used the card without C’s knowledge or authorization. A’s Boutique is operated by A, an individual. 

Federal consumer-privacy law requires business owners to take certain measures to safeguard customers’ credit card information. It also allows a customer to sue a business owner if the customer’s information is stolen from the business. The statute of limitations for these claims is 24 months from the date the customer learns that the information was stolen. 

Initially, C believes that A is the sole owner of A’s Boutique. Twenty-two months after learning of the information theft, C sues A personally in the appropriate U.S. district court, alleging a cause of action under the federal consumer-privacy law. Assume that the court has personal and subject-matter jurisdiction, and that venue is proper.

C’s process server personally delivers the summons and complaint to A one month after C files suit, which is 23 months after C learns of the information theft. Three months after C files suit, C learns that A’s Boutique is actually owned by Greenway, Inc. (Greenway), a corporation. Greenway’s officers are A, the president and 51-percent shareholder, and B, the vice president and 49-percent shareholder. A is Greenway’s registered agent for service of process. Under applicable law, Greenway is the proper defendant, and not A in her individual capacity. 

The day after learning these facts, C moves to amend the complaint to substitute Greenway in place of A as the defendant. Greenway opposes the amendment, arguing that the statute of limitations has expired, because 25 months have now passed since C learned of the information theft. The judge grants C’s motion and permits the amendment.

Later, once discovery begins, C serves the following request for production of documents on Greenway: “Please produce all records relating to credit card transactions at A’s Boutique for the past nine months. If the records are produced in electronic database form, they must be readable by the Microsoft SQL Server database.” The Microsoft SQL Server database is a popular, widely available database program. (Assume that these records are properly discoverable.)

In response, and without filing an objection, Greenway produces the transaction records in an electronic database called T-Base, which is a proprietary database program that A’s son T wrote as part of a class project. The data in T-Base is not readable in Microsoft SQL, nor in any other readily available database program. 

When C’s attorney points this out, the defense attorney offers to translate the data into the requested form for a fee of $1,000. C’s attorney rejects this offer, and then files a motion to compel the defense to produce the data in the requested form. At the hearing on the motion, the defense attorney states that it would take approximately five minutes for Greenway to translate the data into the requested form.


Questions

  1. Was the judge correct to permit C to amend the complaint? Explain.
  2. How should the judge rule on the motion to compel? Explain.

Question 1

Was the judge correct to permit C to amend the complaint? Explain.

Question 2

How should the judge rule on the motion to compel? Explain.

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