February 2023 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 1: Civil Procedure
Sample Answer & Question Pointers

February 2023 California Bar Examination · Fact-specific analysis, an issue outline, and pointers on the official question.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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The actual question, with pointers

Official source text with our added highlights and numbered notes. The PDF preserves the source layout. For the PT, the task, file, and substantive library pages appear below; the complete packet includes the instructions and dividers.

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Official source page 2

QUESTION 1 DuraTires manufactures and installs specially coated tires. DuraTires advertised4 that a scientific report declared that its tires will not go flat for the first 7,000 miles of use if driven properly. DuraTires' scientific report was created at the direction of its legal counsel and contained research on flat tire incidents involving DuraTires. Pam purchased four new tires from DuraTires and had them installed by Maurice1, a mechanic. Pam drove 100 miles and one tire went flat, causing Pam to swerve and crash into another car. Pam was not physically injured3 in the accident. Pam gathered2 a written statement from the other driver, Wynne, who suffered a minor injury. Wynne’s statement was favorable to Pam’s case. Pam filed and properly served a complaint in federal court against DuraTires for breach of warranty and negligent installation and manufacture of the tires. The federal court had proper jurisdiction over Pam’s complaint. Pam alleged that she suffered property damage and emotional distress as a result of the accident. DuraTires filed a motion to dismiss for failure to join Maurice as a defendant. The court denied DuraTires' motion. DuraTires filed and properly served an answer to Pam's complaint. Pam served her initial disclosures on DuraTires, but did not produce Wynne’s statement. DuraTires filed and served motions to compel Pam to produce Wynne’s statement and for Pam to submit to a physical examination. The court granted both of DuraTires’ motions. DuraTires served its initial disclosures, but did not include the advertised scientific report. Pam met and conferred with DuraTires, which refused to produce its scientific report. Pam filed a motion to compel DuraTires to produce its scientific report. The court granted Pam's motion and ordered DuraTires to produce its scientific report. 1. Did the court properly deny DuraTires’ motion to dismiss? Discuss. QUESTION CONTINUES ON THE NEXT PAGE

Official source page 3

2. Did the court properly grant DuraTires' motions: A. To compel production of the statement from Wynne? Discuss. B. To compel a physical examination of Pam? Discuss. 3. Did the court properly order DuraTires to produce its scientific report? Discuss.

Before you write: issue outline

  1. An allegedly responsible mechanic is not automatically a required party.
  2. Distinguish disclosure duties from litigation work product and the foundation for an examination.
  3. A lawyer-directed factual report is not privileged solely because a lawyer requested it.

1. Dismissal for failure to join Maurice

Under Federal Rule of Civil Procedure 19, a person is required if complete relief among existing parties cannot be afforded without that person, or if the person claims an interest that risks impairment or exposes an existing party to inconsistent obligations. Only if a required person cannot feasibly be joined does the court consider whether the action must be dismissed under the equitable Rule 19(b) factors.

Maurice installed the tires and may share responsibility for the accident, but joint tortfeasors ordinarily are permissive, rather than required, parties. The court can determine DuraTires’ warranty and negligence liability and award complete relief between Pam and DuraTires without adjudicating a separate claim against Maurice. Different findings in separate lawsuits are not themselves inconsistent legal obligations. No claimed property interest or other special circumstance makes Maurice necessary here.

DuraTires may consider impleading Maurice under Rule 14 if substantive law gives it a derivative indemnity or contribution claim. It cannot implead him merely by alleging that he alone owes Pam damages. That possible procedure does not require Pam to sue every potentially responsible person. The court properly denied dismissal.

2A. Wynne’s statement

Discovery reaches nonprivileged information relevant to a claim or defense and proportional to the needs of the case. An eyewitness statement about the collision is directly relevant. Initial disclosures require a copy or a description by category and location of documents a party may use to support its position, other than solely for impeachment. Because the statement favors Pam, it is a likely supporting document; the rule does not invariably require handing over every document rather than providing an adequate description.

Work product protects documents prepared in anticipation of litigation by or for a party or its representative, including materials a party prepares personally. Pam therefore need not have hired a lawyer to assert it. Whether she gathered this statement in anticipation of a lawsuit, rather than as routine accident information, depends on the circumstances. The collision and preparation of a favorable written statement make litigation anticipation plausible, but the question does not expressly state her purpose.

If ordinary relevant material, the statement is discoverable through a proper request. If protected factual work product, DuraTires must show substantial need and inability without undue hardship to obtain its substantial equivalent. Wynne is identified, and nothing says she cannot be interviewed or deposed. Her minor injury does not establish unavailability or failed memory. Although a contemporaneous account may be valuable, the facts do not establish the required hardship. A court also must protect attorney mental impressions; none is described in Pam’s witness statement.

Thus an unconditional order without addressing litigation anticipation is questionable. If it is work product, compelling it on this record is likely error; if it is merely ordinary accident material, production is proper. Wynne herself could obtain her own prior statement under the special rule, but DuraTires cannot invoke that right as its own.

2B. Physical examination

Rule 35 requires that the party’s mental or physical condition be in controversy, good cause, a motion and notice, and an order specifying the examination’s scope and conditions and a qualified examiner. An allegation of physical injury often puts that condition in controversy, but Pam expressly suffered no physical injury. Her property damage claim supplies no reason to examine her body.

An emotional-distress allegation may support inquiry into mental condition in appropriate circumstances, but it does not automatically justify any physical examination. The facts identify neither a disputed physical condition nor good cause for this physical examination. No unusual symptoms or causal issue connecting a physical examination to the emotional claim appears. The court should not have granted it merely because an accident and emotional distress were alleged.

3. DuraTires’ scientific report

The report concerns the tire performance that DuraTires advertised and Pam challenges. It is relevant and likely proportional. If DuraTires may use it in defense, its initial-disclosure obligation applies, subject to privileges and protections. Pam also met and conferred before moving to compel, satisfying that important procedural prerequisite; the question does not spell out every preceding discovery request, so the substantive protection is the central issue.

Attorney-client privilege protects confidential lawyer-client communications for legal advice, not underlying facts or every document created at a lawyer’s direction. Scientific research into tire failures does not become privileged automatically because legal counsel requested it. A report prepared primarily to communicate confidential legal advice could require a different analysis, but that purpose is not established.

Similarly, work product requires anticipation of litigation. Legal counsel may commission ordinary business research or safety testing, and the report’s use in advertising strongly supports a commercial purpose and an absence of preserved confidentiality concerning the advertised conclusions. If DuraTires proves a litigation purpose, the court should separately examine substantial need, equivalent available testing, and whether its affirmative use or public disclosure waived the relevant protection. Reliance on a report’s favorable contents while withholding the basis can support a fairness-based waiver; the scope is not necessarily every confidential legal communication on the subject.

The order is likely proper for the factual report used to support the public performance claim, absent proof of a surviving protection. Counsel’s involvement alone is insufficient. Any genuinely privileged legal advice or protected mental impressions should be considered for redaction rather than treated as automatically discoverable with all research.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.