Civil Procedure I

8/3/2019 Civil Procedure I

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CIVIL PROCEDURE I-HALABIFALL 2010


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TABLE OF CONTENTSI. Introduction ................................................................................................................................. 5

A. The Rules ............................................................................................................................... 5B. The System- Adversarial ........................................................................................................ 5C. Procedural Complications ...................................................................................................... 6

II. Pleadings .................................................................................................................................... 7A. Introduction ............................................................................................................................ 7

1. Pleadings & Form ............................................................................................................... 72. Background for Rules ......................................................................................................... 7

B. The Complaint ........................................................................................................................ 81. Form of Pleadings- Liberal Construction ........................................................................... 82. Specificity ......................................................................................................................... 103. The Complaint- FRCP 8(a)(2) .......................................................................................... 104. Employment Discrimination- 8(a)(2) ............................................................................... 105. Current Application of 8(a)(2) .......................................................................................... 116. The Complaint- Fraud or Mistake- FRCP 9(b) ................................................................. 13

C. Sufficiency of the Complaint- FRCP 12(b)(6) ..................................................................... 15D. Defendants Response .......................................................................................................... 15

1. Time- FRCP 6 ................................................................................................................... 152. Pre-Answer Motions under FRCP 12 ............................................................................... 153. Failure to Answer- Default FRCP 55................................................................................ 17 4. The Answer- FRCP 8 (21 Days) ....................................................................................... 18

E. Judgment on the Pleadings- FRCP 12(c).............................................................................. 20F. Voluntary Dismissal- FRCP 41 ............................................................................................ 20G. Amendments to Pleadings .................................................................................................... 21H. Proper Party to a Suit ........................................................................................................... 23I. Joinder- FRCP 18, 19, 20 ...................................................................................................... 24

III. Discovery ................................................................................................................................ 26A. Discovery in FRCP .............................................................................................................. 26B. Discovery Devices................................................................................................................ 26

1. List of Devices .................................................................................................................. 26


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2. Initial Disclosure- FRCP 26(a) ......................................................................................... 263. Depositions- FRCP 30 & 31 ............................................................................................. 274. Interrogatories- FRCP 33 .................................................................................................. 285. Document Inspection- FRCP 34 ....................................................................................... 296. Physical or Mental Examination- FRCP 35 ...................................................................... 297. Requests for Admissions- FRCP 36 ................................................................................. 30 8. Discovery Considerations ................................................................................................. 30

C. Scope and Limits of Discovery- FRCP 26(b) ...................................................................... 321. FRCP 26(b)Discovery Scope and Limits ...................................................................... 322. Limits- FRCP 26(b)(2)(C) ................................................................................................ 333. Electronic Discovery ......................................................................................................... 34

D. Exemptions from Discovery ................................................................................................ 351. Attorney Work Product- FRCP 26(b)(3) .......................................................................... 352. Attorney-Client Privilege- FRCP 26(b)(5)(A) .................................................................. 363. Expert Witnesses- FRCP 26(b)(4) .................................................................................... 37

E. Investigation ......................................................................................................................... 38F. Sanctions ............................................................................................................................... 39

IV. Summary Judgment- FRCP 56 ............................................................................................... 42A. Dispositive Motions ............................................................................................................. 42B. Burden Shifting in Summary Judgment ............................................................................... 42C. Determining the Appropriate Standard of Proof .................................................................. 45

V. Pre-Trial Conferences .............................................................................................................. 46A. Pretrial conferences- FRCP 16 ............................................................................................ 46B. Incentives to Settle- Shifting Fees & Costs .......................................................................... 47

VI. Trial......................................................................................................................................... 49A. Phases of a Trial ................................................................................................................... 49B. Seventh Amendment Right to Jury Trial.............................................................................. 50 C. Composition of Juries, Jury Instructions, Jury Verdicts ...................................................... 52D. Judicial Control of the Verdict ............................................................................................. 55

1. Judgment as a Matter of Law (JMOL)- FRCP 50............................................................. 552. Directed Verdict ................................................................................................................ 56


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3. Judgment N.O.V. .............................................................................................................. 57VII. Judgments and Post-Trial Motions ........................................................................................ 60

A. Motion for a New Trial- FRCP 59 ....................................................................................... 60B. New TrialAmount of the Verdict ..................................................................................... 61C. Relief From Judgments ........................................................................................................ 61

VIII. Appeals................................................................................................................................. 62A. Appellate Review ................................................................................................................. 63B. Stay of Enforcement of Judgments on Appeal- FRCP 62 .................................................... 63C. Federal Appellate Procedure ................................................................................................ 63D. Timely Notice of Appeal...................................................................................................... 64E. The Final Judgment Rule...................................................................................................... 65F. Exceptions to the Final Judgment Rule ................................................................................ 66

1. Collateral Orders ............................................................................................................... 662. Interlocutory Injunction Exception ................................................................................... 68

G. Appellate Review of Judicial Findings of Fact .................................................................... 69H. Federal Appellate Procedure ................................................................................................ 70

IX. Remedies................................................................................................................................. 71A. Preliminary Relief ................................................................................................................ 71B. Interim Relief ....................................................................................................................... 72C. Final Relief ........................................................................................................................... 73D. Contempt of Court ............................................................................................................... 73

Table of Cases ............................................................................................................................... 74


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I.INTRODUCTIONA.THE RULES

Scope of FRCP-FRCP 1o

Govern the procedure in all civil actions and proceedings in the UnitedStates district courts, except as stated in Rule 81 (bankruptcy,

immigration, admiralty, etc.).

o Rules should be construed and administered to secure the just, speedy,and inexpensive determination of every action and proceeding.

These legal principles guide rules and decisions. One form of action- the civil action.FRCP 2

o Historical development- WritsModern system. Kings Courts Courts of Law

o ONE FORM OF ACTION = trans-substantive civil procedure Rules were intended to be trans-substantive

They would apply to all types of cases the same way Old rules had certain magic words for each writ After a while, people argue that certain types of claims

may require different rules

B.THE SYSTEM-ADVERSARIAL Common Law vs. Civil Law

o Common Law = Minimum judicial interventiono Civil Law = Judge plays more active role, interrogates witnesses

Two parties arguing before a neutral decision maker (judge and jury)o Judge= decides on matters relating to lawo Jury= finder of fact

Parties control the direction of the case (not the judge)o Bands Refuse v. Borough of Fairlawn

A judge may not assume the role of advocate in a trial overwhich he presides

Courts of Law vs. Courts of Equityo Courts of Equity

Developed alongside courts of law to fill in gaps between writs Limits on equitable jurisdiction:

No adequate remedy at law, Balancing of hardships, Defense of unclean hands (trusts), Injunctive or Declaratory Relief.

o Remedies:


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Law- Money judgments, recovery of specific property Equity- Equitable decrees, injunctions, specific performance of

contracts, recission and reformation of contracts

o Enforcement Judgments enforced through execution Equitable decrees enforced through contempt

o Modes of trial Law- Judge or jury Equity- Judge, no jury

C.PROCEDURAL COMPLICATIONS Subject Matter Jurisdiction

o Federal courts: Limited jurisdiction to federal questions, i.e. violation of civil

rights, Constitution, federal statutes.

Complete Diversity jurisdiction(1) all s come from differentstates than all s (2) damages $75,000

State substantive law Federal procedural law i.e. Kothe v. Smith

o State courts: General jurisdiction i.e. Bands Refuse

Personal Jurisdictiono Can the be compelled to travel to the location chosen by the ?o Due process forbids personaljurisdiction unless has contacts in the

state

Federal vs. State Lawo Federal: Diversity jurisdiction - use state substantive law but FRCP

(procedural law)

o State courts use state substantive and procedural law.


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II.PLEADINGSA.INTRODUCTION

1.PLEADINGS &FORM FRCP 7Pleadings

o a complaint;o an answer to a complaint;o an answer to a counterclaim designated as a counterclaim;o an answer to a crossclaim;o a third-party complaint;o an answer to a third-party complaint; ando if the court orders one, a reply to an answer.

FRCP 8 General Rules of Pleading FRCP 9 Rules of Pleading- Fraud or Mistake FRCP 10 Form of Pleadings FRCP 11 Signature and Sanctions The legal process begins with the exchange of papers that frame the issues

to be decided

o 3 stages (generally): Complaint Answer (21 days) Reply to the Answer

2.BACKGROUND FORRULES Common LawHighly technical form of actions

o Plead it right, or its thrown outo Problems

losing sight of the case What if theres more than one claim

o Sacrifices justice for procedure. Code Pleading Moves away from rigid requirement of choosing one

form of action

o Field Code- Complaint needs to contain a statement of the factsconstituting the cause of action, in ordinary and concise language,

without repetition, and in such a manner as to enable a person of

common understanding to know what is intended.

o Plead the ultimate facts of the case CRITICISM- No clear line between evidence, conclusions,

and ultimate facts


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Generated motions over the wording of complaintso Gillispie v. Goodyear Service Stores

Facts: alleges s employees harassed her. Trial Ct.accepted s demurrer for lack of claim

Rule: A complaint cant merely state legal conclusions,it has to state the facts by which one could reach those

legal conclusions.

o Still used in some states- NY, Cal, NC, etc. Notice pleadingShort and plain statement [FRCP 8]

o FRCP 8(a)(2)- "Short and plain statement" showing that thepleader is entitled to relief.

o Merges law and equityo Must plead enough facts to put opposing party on notice of the

claim made by and the grounds upon which the claims rest.

o Dominant pleading regime today- Federal regime and majority ofstates.o CRITICISM-The complaint may be so vague that it is difficult to

determine what the is complaining about.

RESPONSE- Other procedures such as discovery,summary judgment or pretrial conferences can sort it out.

Code Pleading vs. Notice Pleadingo Code- must state ULTIMATE FACTSo Notice: may make a GENERAL CLAIM FOR RELIEF

B.THE COMPLAINT1.FORM OFPLEADINGS-LIBERAL CONSTRUCTION

FRCP 10 Form of Pleadingso General principle- Free Formo Paragraphs should be numberedo Paragraphs should cover only a single set of circumstanceso Adoption by reference- For cross reference

FRCP 8(d)(1)o Each allegation must be simple, concise and direct.

Judicial Notice= Common issues that judges can accept as fact (e.g.Madison is the capitol of Wisconsin) Fed. R. Ev. 201(b)

McCormick v. Kopmanno Facts: leaves a bar after drinking, is run off of the road by truck,

and dies. sued truck driver AND tavern (alternatively) for car-

accident death


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o Rule: A complaint may contain inconsistent allegations, eventhough the proof of one negates any fault on the basis of another.

The trial is supposed to be a fact-determining event.o FRCP 8(d)(2) & (3)- Permits alternative and inconsistent

pleadings- BOTH COMPLAINTS and ANSWERS

FRCP 11- Certification by signingo Pleadings made under FRCP 8 are subject to the rules governing

signed representations to the court under FRCP 11.

o When lawyers sign petitions, they allege: Theyre not harassing or delaying Not frivolous The allegations have factual evidence Any denials are based on evidence

o Factual matters can be pleaded even though you are not certain ofthe facts

o Sanctions are discretionary, not mandatory A motion for sanctions under Rule 11 REQUIRES A

SEPARATE MOTION

FRCP 11(c)(1)(A)- Safe Harbor protects a party fromsanctions; s motion for sanctions may not be presented to

court within 21 days after service (Rule 5) of motion to

has 21 days to withdraw complainto Rule 11 requires good faith on the part of the attorneys and partieso Rule 11 sanctions can be imposed on either the party, or counsel,

or both

Sanctions are NOT automatic / are meant for deterrenceonly

Encourage payment of fees to court rather than to opponent 28 U.S.C.A. Section 1927sanctions for unnecessarily and intentionally

multiplying proceedings

Zuk v. Eastern Penno Facts: , psychologist, worked for fora time, during which he

made videos of session. files copyright suit against . sattorney is sanctioned under FRCP 11 and 28 U.S.C.A. 1927.

Attorney appeals.

o Rule: Sanctions may not be imposed upon an attorney pursuant to28 U.S.C.A. 1927 where the attorney fails to make a reasonably

adequate inquiry into the facts and law before filing the lawsuit.

Only if there is willful bad faith.


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o However, a trial court can impose sanctions under Rule 11(c)when counsel fails to conduct a reasonably inquiry into the

facts and into the law as required by Rule 11(b)(2).

2.SPECIFICITY United States v. Board of Harbor Commissioners

o Facts: Govt. alleges oil leaked into river. moves for moredefinite statement [12(e)].

o Rule: If Rule 8 requirements are met, 12(e) motion isinappropriate (DENIED).

o Rationale: A complaint need not allege the specifics of thetransaction of which complaint is made.

FRCP 12(e) motion for more definite statement for unintelligibility, NOTusually for lack of detail

o Pleading must be so vague and ambiguous that the party cannotreasonably prepare a response

o IT IS A MOTION (7(b))- Must be made before responsivepleading, must point out defects complained of and details desired

3.THECOMPLAINT-FRCP8(A)(2) FRCP 8(a)(2)- short and plain statement Conley v. Gibson

o All the rule requires is a short and plain statement of the claim thatwill give the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests.o A complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can

prove no set of facts to support his claim which would entitle

him to relief.

o THE CONLEYSTANDARD IS NOW BEING NARROWED4.EMPLOYMENTDISCRIMINATION-8(A)(2)

Swierkiewicz v. Soremao Facts: , Hungarian, filed employment discrimination suit against

former employer, , pursuant to Title VII of Civil Rights Act andADEA of 1967 . Ct. dismissed claim- lack off specificity, did not

establish a prima facie case under McDonnell Douglas.

o Rule: The complaint in an employment discrimination suit doesnot need to contain specific facts establishing a prima facie case

under McDonnell Douglas.


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Rationale: The McDonnell Douglas test is an evidentiaryburden, NOT a pleading burden.

McDonnell Douglas v. Green- Evidentiary framework, NOT APLEADING BURDEN

o Membership in a protected group;o Qualification for the job in question;o Adverse employment action;o Circumstances to support an inference of discrimination.

Title VII of the Civil Rights Act of 1964- prohibits discrimination byemployers on the basis of race, color, religion, sex or national origin.

Age Discrimination in Employment Act of 1967 (ADEA)- prohibitsemployment discrimination against anyone over the age of 40 years in the

United States.

5.CURRENTAPPLICATION OF8(A)(2) NO SET OF FACTS (Conley) Totality of the claim in the complaint

must indicate a PLAUSIBLE CLAIM, which is BEYOND MERELY

CONCEIVABLE.

Bell Atlantic Corp. v. Twomblyo Facts: Telephone and Internet subscribers, , allege Bell Atlantic,

, violated antitrust laws. Dis. ct. dismissed and held that failed

to state a claim. App. ct. reversed.

The complaint alleged that the conspiracy was shown bytheir engaging in parallel conduct and not competing with

each other in their markets. It also alleged that this conduct prevented new companies

from competing against them.

o Rule: In order for a complaint to survive dismissal on thepleadings, the complaint must include enough facts to state a

claim to relief that is plausible on its face.

The claim for relief in the complaint must indicate aplausible claim, which is beyond merely conceivable.

o The ct. used a FRCP 8 standard, not the heightened standard(FRCP 9)

o A literal reading of Conleys no set of facts would permit awholly conclusory statement of a claim to survive a dispositive

motion if it left open the possibility that a plaintiff may later

discover facts to support recovery.

Ashcroft v. Iqbal


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o Facts: Iqbal, , files claims against Ashcroft, , for his detentionfollowing Sept. 11. moved for dismissal for a lack of specificity.

Dis. ct. found that the facts alleged in 's complaint were sufficient

and denied s motion. App. ct. affirmed the dis. ct.

o Rule: All civil claims are subject to the Twombly plausibilitypleading standard. The court held that its decision in Twombly

was not limited to pleadings made in the context of an antitrust

dispute. Twombly expounded the pleading standard for all civil

actions.

Two-pronged approach Identify those pleadings that are mere conclusions,

because those are not entitled to an assumption of

truth; and

Assume the veracity of the remaining well-pleaded factual allegations (if any), and thendetermine whether they plausibly give rise to an

entitlement of relief.

o CRITICISM- Iqbal provides scant additional guidance ininterpreting the plausibility pleading standard, while leaving

uncertain what it takes to nudge a claim from the conceivable to

the plausible.

must claim underFRCP 8(a):o caption (name of ct., parties, case no., title of action);o subject matter jurisdiction;o claim for relief (body in accordance with Twombly and Iqbal);o relief sought (prayer or demand).

The rule is more worried about insufficiency in the pleading thanexcessive detail.

When drafting a complaint:o Whos your audience?

Defendant Judge

o Tactical Considerations

Too much detail gives the other side a lot to work with Lawyers write short sentences to prevent clausal denials

o Remember Twombly and Iqbal!!! Heightened "plausibility" pleading standard that requires

plaintiffs to provide greater factual development in their

complaints in order to survive a Rule 12(b)(6) motion to

dismiss.


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It is not clear how significant Twombly will be in the longrun, but at least for now, it seems to be encouraging

12(b)(6) motions to dismiss.

Iqbal appeared to push Twombly even further, allowingdistrict judges to determine bare and conclusory

allegations not entitled to the assumption of truth

6.THECOMPLAINT-FRAUD ORMISTAKE-FRCP9(B) FRCP 9(b)- In alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake. Malice,

intent, knowledge, and other conditions of a person's mind may be alleged

generally.

o A complaint averring fraud must: State circumstances constituting fraud with particularity, Malice and knowledge can be alleged generally.

o Tension in Rule 9(b) requires particularity permits a general averment of knowledge (even though

KNOWLEDGE is required)

o Must provide enough facts to create strong inference ofknowledge

Ross v. A. H. Robins Co.o Facts: Stockholders sue company for fraud, alleging they knew the

Dalkon Shield was ineffective, but told the public it was.

o Rule: Rule 9(b) states that averments of fraud have to be madewith particularity.

Rationale: This protects defendants from the harm theirreputations will suffer.

The court emphasizes 3 reasons for 9(b); raising the bar inpleading:

Notice (fraud cases are more complicated, srequire more notice)

Injury to Reputation (Since fraud cases are moredamaging to reputation, they require more in

pleading)

Limiting in terrorem (Prevent people using threat ofsuit as a means of extorting a settlement)

Tellabs v. Mako Issues & Rightso Facts: Shareholders of Tellabs, , sue Tellabs, , under Private

Securities Litigation Reform Act of 1995 (PSLRA), claiming


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intentionally deceived investors about companys stock value. Dis.

ct. dismisses claim without prejudice; amends; dis. ct. dismisses

again with prejudice. App. ct. reversed.

Securities: Negotiable Instrument representing financial value

o Debt: e.g. banknotes or bondso Equity: e.g. stocks, derivative contracts

(futures, swaps)

Important Concept: Efficient Market Hypothesis all material information about a security is reflected

in its price

Section 21(D)(b)(2) of the PLSRA requires that plaintiffsplead facts sufficient to support a strong inference that

defendant acted with the required state of mind.=Scienter

o Rule: Under the PSLRA, to qualify as strong within theintendment of 21D(b)[2], an inference of scienter must befound by a reasonable person to be cogent and at least as

compelling as any opposing inference of non-fraudulent intent.

Cash Energy v. Weiner(Toxic cleanup under CERCLA)o Facts: owns land adjacent to , who claims contaminated the

area. seeks cleanup costs. moves to dismiss for failure to

state a claim.

o Rule: Court uses logic chain: 9(b) heightened pleadingstandards 8(e) courts discretion in the name of justice 12(e) requiring more information in complaint.

Rationale: A higher standard of particularity of pleadingwill be required where a heightened concern for due

process arises by reason of the drastic nature of the

remedies sought.

CERCLA (i.e.) is an area in which a higher standard ofparticularity can be required because it involves many of

the circumstances that have led courts to invoke higher

standards of specificity in other contexts: severe

consequences of individual liability and expense. FRCP Rule (8)(e)-All pleadings shall be construed as to

do substantial justice

Leatherman v. Tarrant County Narcotics Unito Facts: Civil rights cases about searches by Narco unit. Review of

motions to dismiss.


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o Rule: Heightened pleading standards apply to fraud ormistake, NOT civil rights cases

Frederico v. Home Depoto Facts: sues alleging fraud under N.J. Consumer Fraud Act

because of truck rental charges.

o Rule: 9(b) clearly applies to fraud claims not involvingsecurities fraud.

C.SUFFICIENCY OF THE COMPLAINT-FRCP12(B)(6) FRCP 12(b)(6)- failure to state a claim upon which relief can be granted

o All material facts well-pleaded in complaint must be taken to betrue

o Motion to dismiss- Filed before the answero Dismiss the pleading in the light most favorable to the o

If material outside the pleadings is presented to the court in supportof this motion, then Rule 12(b)(6) is CONVERTED to Rule 56

summary judgment and all parties are given opportunity to present

materials pertinent to a summary judgment motion

Mitchell v. Archibald & Kendall, Inc.o Facts: sues b/c he was shot when he parked adjacent to d

store. Dis. ct. dismisses for failure to state a claim.

o Rule: A complaint failing to include facts constituting a causeof action may be dismissed under FRCP 12(b)(6).

D.DEFENDANTS RESPONSE1.TIME-FRCP6

FRCP 6o Count Last Day, But Not the Firsto Every day counts (Saturdays, Sundays, Legal Holidays)o If Last Day is a Weekend or Holiday, The Deadline Is Extended to

Next Working Day

2.PRE-ANSWERMOTIONS UNDER FRCP12

FRCP 12(f)- Motion to strike:o redundant, immaterial, impertinent, or scandalous matter; oro an insufficient defense

s possible responseso can do nothingo can file motions

A pre-answer motion extends the time for filing an answer


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Pre-answer motion IS NOT A PLEADING Rule 12 motions

FRCP 12(c)/(e) ANDFRCP 56: court MUST take all well-pleaded statements as true (in light most favorable to )

Pre-answer motions are found ONLY under Rule 12(b) FRCP 12(b): Defenses motions (7):

1. No jurisdiction over subject matter (no fed. question, no diversity,under $75K)

o Procedural2. No jurisdiction over defendant (no contacts with state or forum)

o Procedural3. Improper venue (right system, wrong court [east or west district])

o Procedural4. Papers have a technical defect (summons and complaint something

technically wrong (i.e.name, address))o

Procedural5. Papers werent served properly (invalid delivery, served to minor orincompetent)

o Procedural6. Failure to state a claim thatll lead to relief (evidence is not legally

sufficient)7. Lacking necessary party (necessary party is absent)

o Procedural If files a pre-answer motion w/in 21 days following service of summons

and complaint, the deadline for filing the answer is extended.FRCP 12(a)

o If ct. denies the motion, has 14 days from reception of denial tofile an answer.

o If ct. grants the motion, is usually granted leave to amend, or thesuit is dismissed

o If a 12(e) motion for a more definite statement is granted, hasuntil 14 days after service of the amended complaint to file answer

FRCP 12(g) & (h) Consolidation and Waiver Provisionso If a party makes a pre-answer motion, but omits on of the FRCP

12 defenses then available, it cannot make any further pre-answer

motions.

o12(h)(1)- 4 disfavored defenses- lack of jurisdiction over person,improper venue, insufficiency of process, or insufficiency of

service of process

Waived forever from the answer if omitted from pre-answer motion.


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o 12(h)(2)- 3 favored defenses- failure to state claim upon whichrelief can be granted, failure to join an indispensable party, failure

to state legal defense to claim

Can be made in any pleading, or by motion for judgment onpleadings, or at trial on merits.

o 12(h)(3)- Most favored defense- lack of subject-matter jurisdiction Can be made at any time.

Denton v. Hernandezo Facts: alleges he was raped in prisono Rule: Unlike, 12(b)(6), Court can dismiss cases in forma

pauperis (indigent filers) to dismiss cases, when their factual

allegations are frivolous

28 U.S.C. 1915(e)(2)3.FAILURE TOANSWER-DEFAULTFRCP55

Failure To Answero Why would you not answer?

Suit cannot be enforced Never received process Need an extension to be able to fully answer Concede all the facts and want to avoid expenses of

litigation (strategic move)

FRCP 55 Defaulto Equitable balance b/n preference for trials on the merits and the

judicial systems need for finality and efficiency in litigationo FRCP 55(a) When a party fails to plead or defend, the clerk enters

a default

o FRCP 55(b) Entry of Default/Default Judgment (1) By the Clerk

Clerk of court can easily enter entry of default Clerk of court can RARELY enter judgment of

default- only if a claim is liquidated:

o a sum certain or a sum that can be madecertain by computation,

o must also show that sum is reasonableunder circumstances

o must have completely failed to appear,and not merely have defaulted after initial

appearance

(2) By the Court (either because judge can decide damages)o FRCP 55(c) Setting Aside a Default


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For good cause shown the court may set aside an entry ofdefault and, if a judgment by default has been entered, may

likewise set it aside in accordance with Rule 60(b).

o Shepard Claims Service v. William Darrah Facts: Negligence (not culpable conduct) on the part of s

counsel resulted in default judgment. Dis. ct. refused to set

aside judgment obtained by due to s negligence.

Rule: Where a will not be prejudiced and ameritorious defense is shown, a default should be set

aside if it was the result of mere negligence.

United Coin Meter v. Seaboard Coastlineo Cases decided under Rule 55 must answer

the following questions:

Whether will be prejudiced Whether has a meritoriousdefense- only has to be good at law,

doesnt have to be likely to succeed

Whether culpable conduct is worsethan mere negligence

Discretion left to the judge whether or not to setaside an entry of default

4.THEANSWER-FRCP8(21DAYS) responses to a complaint:

o Answer (FRCP 8(b)) Admit, deny allegations, or lack sufficient knowledge

o Affirmative defenses (FRCP 8(c)) If defense was NOT available to you within proper time

you DO NOT lose it

o Assert a counterclaim or cross-claims s have an obligation of reasonableness when answering a complaint.

o David v. Crompton & Knowles Corp. Facts: Products liability; answered complaint by saying it

didnt have enough info to answer. now seeks to change

answer to a denial.

Rule: Theres an obligation of reasonableness to find outfacts before answering. Its not sufficient to not look for

info and then say you dont have the info.

A denial based on lack of information will bedeemed an admission if the facts relevant to the

issue are peculiarly within the denying partys


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knowledge and control. (ALSO Mesirow v.

Duggan)

FRCP 8(b)- Requires to admit or deny allaverments and ONLY claim lack of sufficient

information if he is without adequate

knowledge/information

FRCP 11(b)(4) Denial of facts are warranted ifbased on the lack of information or belief

Affirmative Defenses (FRCP8(c))o Modern equivalent of confession and avoidance; accepts as

true what alleges, but offers a justification/excuse for the

conduct

o Rule 8(c) requires them to be set forth affirmatively.o 19 defenses (i.e. statute of limitations) listed in Rule 8(c) but it is

not a comprehensive listo has burden of pleading and proofo If you fail to plead an affirmative defense, you lose the right to

bring it up later in the trial

o FRCP 15(a)Judge can permit a party to amend its pleading andadd an omitted defense

Counterclaims (FRCP 13)o FRCP 13(a)- Compulsory Counterclaims

One that arises out of the same transaction oroccurrenceas s claim (related)

You must raise this counterclaim in your answer b/c itcannot be raised in a later suit

Res judicata applies if you fail to assert compulsorycounterclaim (cant file claims piecemeal)

Rule 13 Test - arises out of the same transaction oroccurrence OR series of transactions or occurrences

FOUR COMPULSORY COUNTERCLAIM TESTS: Same issues of fact and law Test Would res judicata bar s claim if s

counterclaim was not compulsory? Logical Relationship Test- United Artists v.

Masterpiece

Substantially the Same Evidence Test- Bose v.Consumers Union

o Easier to use.o FRCP 13(b)- Permissive Counterclaims


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One that does not arise out of the same transaction oroccurrence as s claim (not related)

Can be raised in a later suit or counterclaimo If answer contains a counterclaim that is labeled as a counterclaim,

a reply is required. (FRCP 7(a))

o Wigglesworth v. Teamsters Facts: sues for violation of free speech.

counterclaims libel, slander and abuse of procedure.

Rule: A counterclaim is not compulsory if it does notarise out of the same transaction or occurrence that

forms the basis of the complaint. Permissive

counterclaims are independent from claim and require

separate jurisdictional analysis.

Rationale: Test for transaction/occurrence: SAMEEVIDENCE TEST; if it can be shown that the sameevidence is needed to prove claim A and claim B,

they should be pleaded at the same time

(compulsory).

Cross-Claims (FRCP 13)o Rule 13(g) permits a party to state a cross-claim against a co-party

(i.e. one against another ) if it arises out of the same transaction

that is the subject matter either of original action or of a

counterclaim therein OR relating to any property thats the subject

matter of original action

I.e. - claims for contribution or indemnificationo Rule 13(h)the addition of claims can result in addition of parties

if they can be in accordance with Rule 19 and 20.

E.JUDGMENT ON THE PLEADINGS-FRCP12(C) FRCP 12(c)- Motion for judgment on the pleadings: used instead of

12(b)(6) or 12(b)(7) AFTER AN ANSWER HAS ALREADY BEEN

FILED because the pleadings are closed

Use Rule 56 if material outside pleadings was usedF.VOLUNTARY DISMISSAL-FRCP41

Voluntary Dismissal-FRCP 41(a)o Should be limited to the early stages of litigationo FRCP 41(a)(1)(i) can voluntarily dismiss suit if it files notice

before service of an answer or motion for summary judgment OR

(ii) stipulation is signed by all parties


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o FRCP 41(b)(2) exercise of judicial discretion in all othersituations

o may move to vacate notice for dismissal under Rule 60(b) formistake, surprise, inadvertence, or excusable neglect, or on a

showing of good cause.

o may want a voluntary dismissal to avoid Rule 11 sanctionsG.AMENDMENTS TO PLEADINGS

Permission to AmendFRCP 15o Courts have a liberal approach to amendments on ALL pleadings

FRCP 15(a)- Amendments to pleadingso Amendments can be made once before a responsive pleading has

been served

o Or if no responsive pleading is permitted, within 21 dayso

Three ways: (1) as of right, (2) by leave of court, or (3) writtenconsent of the adverse party

o Rules: has rt. to amend ONCE before serves answer has rt. to amend ONCE w/in 21 days of filing answer If no rt. to amend, ct. will usually grant unless too much

delay or prejudice.

David v. Crompton & Knowles Corp.o Facts: Products liability case. wants to amend answer to say its

not the right Defendant.

o Rule: Amendments are allowed to the extent that they willprejudice the other party. If a party waits a lengthy period of

time b/n discovery facts making an amendment appropriate

and moving to amend, the motion may be denied.

FRCP 15(b)- Amendments to conform to the evidenceo Amendments will be made for issues not raised by the parties

Variance: Evidence at trial does not match pleading (onlyrelevant at trial)

Other party may object to this- if there is no objection,evidence will be admitted

o Objections must show prejudiceo Trend is to allow amendments

FRCP 15(c)- Relation-Back of Amendmentso Permitting parties to amend pleadings that:


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Would normally be barred by statute of limitations- requestto amend might cause SERIOUS PREJUDICE TO ONE

PARTY

The claim arises out of the same transaction (Same Parties) Bring in new partiesMUST SHOW:

Arises out of same conduct, transaction,occurrence,

Notice such that new parties will not be prejudicedin defense

Party knew or should have known that the actionwould have been brought against them (w/in 120

days after filing), but for a mistake concerning the

identity of the parties

o Policy Arguments of Statute of Limitations Fading memories of witnesses Non-existent documents (companies retaining docs) Its desirable to give people repose Expeditious litigations

Goodman v. Praxairo Facts: , Goodman, contends that breach of contract action against

should not have been dismissed (12(b)(6)) because his amended

complaint related back to date of original complaint.

o Rules: An amended complaint may not be dismissed under

Rule 12(b)(6) where it does not on its face show that it is

barred by the statute of limitations.

Under Rule 15(c), an amended complaint that adds aparty as defendant relates back to the original

complaint where the added party is a subsidiary of the

originally named defendant, and where, even though

the plaintiff was aware of the subsidiarys identity and

name, the plaintiff was mistaken as to its status as a

successor-in-interest.

oThree requirements for Rule 15(c):

Claim asserted in amended pleading must have arisen fromtransaction set forth in the original pleading;

New must have received notice of the action within thelimitations period; and


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New should have known that but for a mistakeconcerning the identity of the proper party, the action

would have been brought against him.

Krupski v. Costa Crociere S.p.A.o Facts: Passenger, , brought action against carrier, , to recover

for injuries sustained while aboard cruise ship. Dist. ct. entered

summary judgment in 's favor, holding that 's amendment of her

complaint to correctly identify did not relate back to her original

complaint. appealed. App. ct. affirmed. Certiorari was granted.

o Rule: Relation back of amendment changing party or namingof party against whom claim is asserted depended on what

party to be added knew or should have known, not on amending

party's knowledge or timeliness in seeking to amend pleading, and

amendment of passenger's complaint to correctly identify carrier

related back to her original complaint. FRCP 15(d)- Permits supplemental pleading if events occur after filing of

complaint that make it necessary (ex: injuries, getting fired so to create

contract-breach issues, etc.)

o Depends on how much NOTICE was given in pleadingsH.PROPER PARTY TO A SUIT

At Common Law, brought under the name of the person w/ legal title tothe right asserted

To be a plaintiff you must assert a LEGALLY RECOGNIZED INJURY Real Party in InterestFRCP 17(a)- Every action should be prosecuted in

the name of the real party in interest.

Subrogationsubstitution of one party for another whose debt the partypays, entitling the paying party to the rights that would otherwise belong

to the debtor (i.e. insurance companies)

Fictitious Names:o Southern Methodist Women v. Wynne and Jaffe

Facts: Various s in a gender discrimination action underTitle VII of the Civil Rights Act wished to proceed

anonymously. Rule: Parties are named anonymously or fictitiously for a

variety of reasons. Rarely will s be granted anonymity

for reasons of privacy. Not under Title VII of the Civil

rights Act.


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Fictitiously named s usually are anonymous due tolack of knowledge on the part of a as to their true

identities.

General rule- NAME the parties FRCP 10(a)- Requires the naming of parties

because (1) must give s proper notice and (2)

important for future application ofres judicata (3)

public pays for court system and thus has right to

know names

Exceptions: sensitive situation, prejudice, admission ofillegal activity, etc.

I.JOINDER-FRCP18,19,20 Joinder of ClaimsFRCP 18(a)

oRule 18(a) allows a party to join as many claims, legal, equitable,or maritime, as the party has against an opposing party. The

claims need not even be related (consistent with Rule 13(a))

o It does not mean they will be tried together. Rule 18(a) is apleading rule.

o FRCP 42(b)- a court may sever unrelated claims and orderseparate trials

Permissive Joinder of Parties FRCP 20(a) AND FRCP 13(b)(permissive counterclaims)

o Applies both to the joinder of s and the joinder of s o Joinder of parties is more restricted than joinder of claimso If (1) claim arises out of the same transaction, occurrence, or

series of transactions or occurrences AND (2) if any question of

law OR fact common to all these persons will arise in the action.

Required Joinder of Parties-FRCP 19o 3 MAIN REQUIREMENTS:

1. Is presence of defendant necessary to action? (see

19(a) below for tests)

a) Yes go to step 2

b) No proceedings continue without absent party

2. Is joinder of defendant feasible?

a) YesCourt will require joinder

b) NoGo to step 3

3. Can case proceed meaningfully and equitably without

joinder?

a) Yes Case continues without party


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b) No Case dismissed for failure to join

FEASIBLE = can court assert personal jurisdiction? In context of Rule 12(b)(7) failure to join an

indispensable party

Action could not proceed if persons with joint interests were not joined unless they were not indispensable

FRCP 19(a) - necessary Is the presence of the D necessary to the action? Is the joinder of the D feasible? 19(a)(1) Can complete relief be afforded in the

partys absence?

19(a)(2) Will the persons absence (1) impair apersons ability to protect its interest (2) leave a

person subject to incurring multiple obligations?

FRCP 19(b)indispensable I.e. if the party is necessary but cannot be joined

because of it would destroy diversity, then court

considers 19(b)

Can the case proceed without the joinder?


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III.DISCOVERYA.DISCOVERY IN FRCP

Goals of Discoveryo

Get away from trial by surprise (the Perry Mason Moment)o Formulate the issues / simplifying (claims may later be dropped,

based on discovery)

o Promote settlemento Preservation of evidence (if a witness leaves the county, dies, etc.)o Leveling off of resource limitations (big corp. v. little guy)

Negatives of Discoveryo Expense (most cases, this is the largest expense)o Brings out a lot of info (bad, humiliating, etc.)o Can be over-broad

FRCP 16Pretrial Hearing FRCP 26Discovery

o FRCP 26(a)Mandates certain required initial disclosures Initial disclosure Disclosure of experts Pretrial disclosure

o FRCP 26(b)(1)Provides a broad scope of discovery FRCP 27through 35 outline discovery devices FRCP 37Motion to compel discovery

B.DISCOVERY DEVICES1.LIST OFDEVICES

Initial DisclosureFRCP 26(a)(1)o Provide the basic information all parties need

DepositionsFRCP 30 and 31o Used in significant part for summary judgment motions and at trial

InterrogatoriesFRCP 33o Seek basic additional factual information

Document InspectionFRCP 34o Problem is to describe documents with sufficient specificity

Physical or Mental ExaminationFRCP 35 Requests for AdmissionFRCP 36

2.INITIALDISCLOSURE-FRCP26(A) Changes to the rule:


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o 1983 rule- discovery should only be served when it is reasonablycalculated to lead to the discovery of evidence both admissible and

sufficiently significant to justify the burdens on both the serving

and responding parties.

o 1993 rule- relevant to disputed facts alleged with particularity inthe pleadings. (w/ jurisdictional opt-out)

o 2000 rule- material that the disclosing party may use to support itsclaims or defenses. (court-by-court opt-out)

Party must disclose witnesses and documents it may use to support itsclaims or defenses.

FRCP 11s safe harbor provision may prompt parties to reveal thestrengths of their case to persuade the other side to drop a claim or

defense.

FRCP 37(c)(1)forbids use of materials that were not disclosed Applies only to supportive, not harmful, evidence Disclosure Required at or Within 14 Days After the Discovery Conference Things that have to be disclosed:

o Name and address of anybody likely to have discoverable info.o Copies of documents, data compilations, and tangible things.o Computation of damageso Insurance agreements

In re Convergent Technologieso Facts: In a large securities litigation, over 1,000 contention

interrogatories were served upon s asking them to specify all

evidence that they had in support of their allegations. The dispute

became bitter and a motion to compel was filed.

o Rule: The pretrial discovery process should be self-executingand have minimal judicial intervention. Parties involved should

fully to ease the process. Good faith and common sense required

in discovery

Discover must lead to admissible and useful evidence. FRCP 26(a)(2)- Requires Disclosure of Expert Testimony 90 Days Before

Trial

FRCP 26(a)(3)- Requires Final Disclosure of All Witnesses andDocuments 30 Days Before Trial

3.DEPOSITIONS-FRCP30&31 Most expensive discovery device and most powerful of the discovery

procedures

Characteristics of depositions


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o Usually taken in a lawyers office, with both lawyers and courtreporter attending.

o Taken of parties or non-parties Documents Subpoena duces tecum (subpoena for

production of evidence before ct.)

Subpoena required for nonparties Notice is sufficient for parties

o Lawyers ask questions, which can be adapted based on previousresponses

o Parties dont object incessantly FRCP 30Depositions Upon Oral Examination

o FRCP 30(a)(2)(A)- Limits the number to 10o FRCP 30(b)(1)- Reasonable notice for deponents undero FRCP 30(b)(5)- Document requests undero FRCP 30(d)(1)- One day of seven hours

FRCP 31Depositions Upon Written Questionso Deposition with Ct. reporter reading written questions prepared by

lawyer.

FRCP 27(a) authorizes deposition before suit FRCP 37Failure to appear Sanctions Witness testifies under oath Lawyer can instruct witness not to answer ONLY IF:

o Preserve privilege- The question seeks privileged information.o Enforce discovery limitation set by judgeo Permit motion for protective order

A lawyer should never whisper to the witness while the witness istestifying

FRCP 30(e)- Once the Deposition is Completed, the Court ReporterTranscribes It and the Witness Has the Opportunity to Review and Sign It.

FRCP 30(f)- Then the Court Reporter Certifies and Files the DepositionWith the Court or Sends It to the Attorney Who Took the Deposition

Other Parties Can Get Copies FRCP 32- Use of depositions in trial

o Deposition is admissible if: It is the deposition of a party For impeachment of a nonparty The witness is unavailable

o FRCP 32(d)- Waiver of objections4.INTERROGATORIES-FRCP33


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Permits any party to send written questions to another party that must beanswered under oath (CANNOT send interrogatories to non-party)

Strengthso Useful for identifying witnesses, location of documents, precise

info

o May be useful for small against large, corporate Problems

o Questions may be easy to write, but very burdensome to answer.(Rules responded by limiting to 25. However, a party may use

subquestions.)

o Lawyers tend to answer the questions, so they tend to reveal verylittle info.

o Interrogatories are bad at getting useful info for litigation (i.e. narrative info)

o Questions cant be tailored to responses. FRCP 33(a)- limits the number to 25/party absent stipulation or court

order

FRCP 33(c)Contention interrogatories, i.e. Convergent Technologieso Questions are not improper merely because they seek an opiniono Often used by as predicate for summary judgment motion as

proof that has inadequate evidence to sustain case

FRCP 33(d) - Authorizes production of documents in lieu of answer to aninterrogatory that calls for a compilation of records

5.DOCUMENTINSPECTION-FRCP34 Permits parties to demand an opportunity to inspect and copy documents

and other tangible things possessed by other parties (for nonparties, use

FRCP 45)

Documents in the adverse partys possession, custody, or controlo Document retention policies

Electronic Discoveryo Produce in the order kept in the normal courseo According to category

Parties have 30 days to respond

FRCP 26(a)(1)(B) - Parties must disclose pertinent info about documentsbefore formal discovery begins

FRCP 45subpoena a nonparty to provide documents6.PHYSICAL ORMENTALEXAMINATION-FRCP35


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When the mental or physical condition of a party is in controversy acourt may order the person to submit to an examination by a suitably

licensed or certified examiner.

ONLY discovery tool for which stipulation or court approval is necessary The court may specify the time and place Two Requirements:

o Good cause showno In controversy

Essential in most personal injury cases, but also very intrusive7.REQUESTS FORADMISSIONS-FRCP36

Permits any party to send requests to any other party asking for anadmission of the truth of any matter within the scope of Rule 26(b)

Deemed conclusively established for the litigation at hand Must answer w/in 30 days If not denied admitted Responding party must admit, deny, object, or give reasons why it cannot

admit or deny

May be used in conjunction with interrogatories8.DISCOVERYCONSIDERATIONS

Protective Orderso FRCP 26(c)- Authorizes the Trial Court to Regulate Discoveryo Commonly used to protect confidential information such as trade

secrets or customer listso May also be used for payment of travel expenses, etc.o These may be arranged pursuant to stipulation. For example, a

confidentiality order may be a part of the settlement of a products

liability case

Discovery from Non-Partieso More limited than discovery from partieso Not subject to interrogatories or examinationso FRCP 45 allows discovery from nonparties comparable to party

discovery under:

Rule 30 (depositions) and Rule 34 (document requests) through subpoenas

o FRCP 45(c) requires that parties avoid unfairly burdeningnonparties and alert them in the subpoena itself to the right to seek

a protective order.

o May require party to reimburse nonparty for costs of responding.


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Discovery from Corporate Partieso Use interrogatories to identify the person who has knowledge

about the matter

o FRCP 30(b)(6) permits a party to notice a deposition of acorporation, whether or not a party, with a description of the

matters to be covered, and to require the organization to designate

a person able to answer questions on that subject

When a party can refuse discovery requests?o Information is privileged

Attorney-Client Spousal Physician-Patient Clergy-Penitent Psychotherapist-Patient

o Attorney work producto Information is burdensomeo Transnational litigation information

Discovery Sequence/Tacticso Must start with Initial Disclosureo FRCP 26(d) moratorium requires that formal discovery await the

discovery conference underFRCP 26(f).

o FRCP 26(f) Discovery meetings may be used to hand tailordiscovery procedures for the particular case

o Many lawyers have a routine procedureo One device may lay the groundwork for another deviceo FRCP 26(g)Certification Requirement for Discovery

Admissibility at Trialo Documents are not admissible unless authenticatedo FRCP 32(a)use of depositions at trial

Discovery Disputeso FRCP 37Motion to compel discovery

Preservation of Evidenceo Failure to keep items can lead to sanctions for spoliationo Desire to suppress evidence can lead to criminal sanctions

Duty to Supplemento FRCP 26(e)provides that whenever the response is in some

material respect incomplete or incorrect, the response must be

supplemented

o FRCP 37(c)(1) - Failure to supplement is subject to sanctions.


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C.SCOPE AND LIMITS OF DISCOVERY-FRCP26(B)1.FRCP26(B)DISCOVERYSCOPE ANDLIMITS

Key issue is RELEVANCEreasonably calculated to lead to admissibleevidence

o Relevant to the claim or defense of any partyo Claims and defenses are based on the pleadingso Information does not have to be admissible if it appears reasonably

calculated to lead to the discovery of admissible evidence

o Broader than admissibility at trial (liberal discovery) A party may only obtain documents prepared in anticipation of litigation

if it can show that it has:

o Substantial need in preparation of its case; ando Unable to get an equivalent without undue hardship.

Davis v. Ross

o Facts: Davis, , a former employee of , Ross, sued for libelousletter.

sought info. on: s net worth and income; Fees paid to s attorneys (one of whom was a

witness in the case);

Names of other employees who complained about sought to compel discovery on s psych. treatment

o Rule: Information on a defendants net worth may not be

discovered until a after verdict awarding punitive

damages is made.

Where mental or physical condition is at issue, thephysician-patient privilege is waived and relevant

evidence is discoverable ( claimed mental anguish).

If the issue is whether Ross libeled Davis, the informationsought MUST bear on that question. Names of other

employees is NOT discoverable.

Legal fees may NOT be discovered for determining attysbias or credibility where atty is witness in case where client

is .

FRCP 37: specifies range of available sanctions Coca Cola Bottling v. Coca Cola

o Facts: , Bottling Co., seeks to compel to turn over Cokesformula (trade secret)


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o Rule: will be foreclosed from presenting their claim if theycannot discover the formula. The public harm that can come from

this discovery is great due to public disclosure. However, all harm

can be virtually eliminated with stringent protective orders.

PRIVACYo FRCP 26(a)(1)(D) requires disclosure of insurance policieso Protective orders, i.e. trade secrets like Coca Cola formulao Physician-patient privilegeo There is distinction between what is discoverable (easier) and what

is admissible (harder)

2.LIMITS-FRCP26(B)(2)(C) Judges directed to limit frequency and extent of discovery where certain

conditions are met

o Discovery is unreasonably cumulative or duplicative or can bemore easily obtained elsewhere

o The party seeking discovery has already had ample opportunity toobtain the information

The discovery requested is more burdensome than its likely benefit Kozlowski v. Sears

o Facts: Sears, , refused to produce records about flammablepajamas because it claimed that their indexing system made it too

difficult.

offered to allow s attorney to search.o Rule:If difficulty in locating records is the fault of the party

requested to produce, then production will not be excused.

FRCP 34 says that a party must show some sufficientreason why discovery should not be allowed

To allow a defendant whose business generates massiverecords to frustrate discovery by creating an inadequate

filing system, and then claiming undue burden, would

defeat the purposes of the discovery rules.

FRCP 34(b)o If a party requested to produce documents objects to the request, it

must show why discovery should not be allowed

o Responding party can organize the documents in accordance withthe requests or provide them as they are kept in the usual course of

business

FRCP 34(c) - you can provide discovery documents EITHER (1) in theform you keep them; OR (2) in the form the requesting parties wants them


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FRCP 33(d)look at my files option; this is permittedONLY IF theburden incurred by the other side is no greater than the burden you would

incur to locate the documents

3.ELECTRONICDISCOVERY McPeek v. Ashcroft

o Facts: , an employee of DOJ, , filed sexual harassment suit thatsettled. did not allegedly adhere to the settlement. attempted to

force to search hard-drive backup tapes for relevant evidence.

said that potential costs outweighed utility, and attempted to avoid

compliance.

o Rule: The marginal utility approach to discovery isappropriate by which likely relevant evidence in digital format

may be produced at the responding partys request, and no

production is necessary if relevant evidence is not likely to be

found.

Balancing the utility of the information sought against thecost of the information. If the cost of producing the

additional information exceeds the value/relevancy of the

information, then the cost of producing the information

should be shifted to the party requesting the information

Fee-shifting to the requesting party (7 factor test inZubulakev. UBS Warburg)

The extent which request is specifically tailored todiscover relevant info.;

The availability of such info. from other sources; Total cost of production vs. the amount in

controversy;

Cost of production vs. resources available to parties; Relative ability of each party to control costs and

incentive to do so;

Importance of issue at stake; Relative benefits of obtaining the info.

Must balance broad scope of discovery (FRCP 26(b)(1))with cost-consciousness of FRCP 26(b)(2)

o Cost-shifting would be to detriment of private individuals seekingdiscovery from large corps. Requiring good faith on part of parties

is a good compromise.

Over 90% of business info is created electronically and never printed out Paper does not include metadata or embedded data


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It is likely that the parties seeking discovery will prefer electronicallystored information that can be electronically searched.

FRCP 34 does NOT have a look at my files option like FRCP 33(d) Five Categories of Inaccessible Material:

o Active, online data (readily accessed)o Near-line data (quickly accessible)o Offline storage/archives (takes hours/days to access)o Backup tapes (not organized for archival use)o Erased, fragmented, damaged data

D.EXEMPTIONS FROM DISCOVERY1.ATTORNEYWORKPRODUCT-FRCP26(B)(3)

This Doctrine Protects a Lawyers Privacy in Connection With TrialPreparation

3 Aspects to Work Product Protectiono FRCP. 26(b)(3)(A)- Trial Preparation Materialso FRCP 26(b)(3)(B)- Attorney Mental Impressionso FRCP 26(b)(4)- Expert Work Product

These provisions were added to FRCP 26 in 1970 (Before these provisionswere added, there wasHickman).

Hickman v. Tayloro Facts: Tug boat sinks, five sailors killed. In preparation of

litigation, tug companys lawyer interviews survivors. Later,

during discovery, s lawyer requests info on the interviews.o Rule: Material obtained by counsel in preparation of litigation

is the work product of the lawyer, and while such material is

not protected by the attorney-client privilege, it is not

discoverable on the mere demand without a showing of

necessity or justification.

To supersede attorney-client privilege, you need to showhardship and prejudice. Work-Product is otherwise

protected.

FRCP 26(b)(3) was added to deal with the discovery of work product Does NOT have to be created by attorney Available only if material is produced in anticipation of litigation

o Does not cover materials prepared in the ordinary course ofbusiness

Preserves an element of surprise for trial and effectiveness ofimpeachment evidence


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PROTECTIVE ORDER: an order that prevents the disclosure of sensitiveinformation except to certain individuals under certain conditions.

FRCP. 26(b)(3)(A)- Qualified Protection for Ordinary Work Producto Ordinary Work Product = Trial preparation materialso If the information is RELEVANT (information must be NEEDED)

and otherwise UNAVAILABLE, then it may be discoverable.

o Can be overcome by 1) substantial need; OR 2) info not otherwiseavailable.

FRCP 26(b)(3)(B)- Absolute Protection for: Mental impressions,conclusions, opinions, and legal theories of attorney.

o Otherwise discoverable documents, will not be discoverable if thereveal the lawyers thoughts (e.g.interoffice memos for opposing

counsel).

2.ATTORNEY-CLIENTPRIVILEGE-FRCP26(B)(5)(A) FRCP 26(b)(5)(A)Information withheld by claim of privilege Confidential communications between lawyer and client in which the

client seeks legal advice

Promotes full disclosure by the client to the lawyer Privilege does not apply to instances of communication between the

attorney and a third party.

Absolute bar to discovery Elements of the Attorney-Client Privilege:

o Legal advice is sought,o From a professional legal advisor in his capacity as such,o The communications relating to that purpose,o Made in confidenceo By the cliento Are at this instance permanently protected,o From disclosure by himself or by the legal advisor.

Upjohn v. United Stateso Facts: Foreign subsidiary of Upjohn, , made illegal payments to

foreign governments. voluntarily submitted forms with SEC and

IRS to disclose payments. s general counsel had a previouslysent out a questionnaire about the payments. IRS is now

requesting those questionnaires. declines b/c of Atty-Client

Privilege and work-product.

Court of app. creates the Control Group Test, where thosewho control the company are the clients for purposes

of the attorney-client privilege.


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o Rule: Sup. Ct. overruled Control Group Test for federal courts. Butit was not clear about the standard that replaced the control group

test. Employee communications are subject to the attorney-

client privilege if they are made to counsel at the direction of

superiors for the purpose of obtaining legal advice

Employees communications are protected if The info provided is needed to supply the basis for

legal advice

The info concerns matters within the scope of theemployees duties

The employees know that they are being questionedso that the corporation can obtain legal advice

The employees understand that the communicationsare confidential

The court also mentions that the information was notavailable from upper-level management

Policy behind the attorney-client privilege:o Encourage full disclosure from the cliento Protect confidential communications b/n the attorney and the client

in connection with legal services

3.EXPERTWITNESSES-FRCP26(B)(4) Two types of witnesses

o Fact witnessesCan only speak to personal knowledge or personalobservation, CANNOT give opinions

o Expert witnesses Experts can give opinions, conclusions based on the facts Experts have to be qualified (training, credentials, etc.) Two types of experts:

Testifying Non-testifying

o Get preview of opinion before retaining expert Testifying experts

oThe identity of persons you intend to call as witnesses, pluswhatever research reports they put together, fall under FRCP 26

initial disclosure

o FRCP 26(b)(4)(A) allows for interrogatory discovery of expertsexpected to be called at trial

The primary purpose is to permit the opposing party toprepare an effective cross-examination.


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o FRCP 37(c)(1) - opinions that should have been disclosed butwere not should be excluded from trial

o FRCP 26(b)(4)(C) the court shall require that the requestingparty pay the expert a reasonable fee for time spent in responding

to discovery

o FRCP 26(a)(2)- Information that can be discovered about experts Virtually the entire direct testimony

Opinions that will be expressed Facts that expert testimony is based upon All exhibits

All publications by the expert for the last ten years List of all cases in which the expert testified for the last

four years

Compensationo Look at Fed. R. Evid. 702, 703, and 705.

Non-testifying expertso Less need for discovery from experts who will not testify at trialo Informal consultation is not subject to discoveryo Discovery only in exceptional circumstances

In Re Shell Oil Refineryo Facts: wants info from s in-house experts. Question turns on

whether theyre primarily considered litigation assistance.

o Rule: The facts known and opinions held by non-testifyingexperts who are retained or specifically employed in

anticipation of litigation or preparation for trial are subject to

discovery only in exceptional circumstances.

This rule protects trial strategy and prevents one party fromhaving a free ride at the expense of the other party

You are not entitled to discover the evidence from thisperson, UNLESS you can show exceptional circumstance

Equipment needed for tests is destroyed orunavailable.

It is impossible for a party to obtain its own expertE.INVESTIGATION

Interviewso Interviews can be conducted without notice to the adverse partyo Much more flexible that discoveryo Transcripts are not subject to discoveryo Not subject to provisions of FRCP


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o Interviews can compel attorneys to take depositions Rules of professional responsibility forbid a lawyer to talk to an opposing

party who is represented by counsel unless the partys lawyer consents

Corley v. Rosewood Care Ctr.o Facts: sues under RICO Act. interviewed witnesses (under

oath w/ ct. reporter) who participated voluntarily. asks dis. ct. for

protective order and to treat interviews as depositions. App. ct.

reverses.

o Rule: Counsel may choose to take sworn statements fromindividuals having knowledge of the claims or defenses at issue.

Witness statements may include a stenographic, mechanical,

electrical, or other recording.

F.SANCTIONS

FRCP 37(c)(1)The court may impose sanctions for the failure of theinitial disclosure and will not permit the evidence at trial

If you do not provide discovery, and there is no substantial justification forit, the court is REQUIRED to shift the cost of obtaining the discovery and

the attorneys fees

Cine Forty-Second Street Theatre v. Allied Artistso Facts: engaged in repeated and willful noncompliance with ct.s

orders regarding answering s interrogatories. Case is ultimately

dismissed.

o Rule: Grossly negligent failure to obey order compellingdiscovery is sufficient to justify severest disciplinary measures

under Rule 37.

Spectrum of sanctionso Reimburse the opposing party for expenseso Strike or dismiss any or all of that parts claim or defense, preclude

the introduction of evidence, or hold certain facts to be established

o Hold in criminal contempto Orders of dismissal and default judgment

Threefold purposeo

Preclusionary orders ensure that a party will not be able to profitfrom its own failure to comply

o Specific deterrents and seek to secure compliance with the particularorder at hand

o General deterrent effect on this case and others, provided that theparty on whom they are imposed is at fault

Due process- fault should be found before sanctions are imposed


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Courts have held that FRCP 37 sanctions should not be used when it isestablished that failure was due to inability, and NOT to willfulness, bad

faith, or any fault of plaintiff.

Multifactor tests to determine level of fault for ultimate sanctionso Publics interest in expeditious resolution of litigationo The courts need to manage its docketo The risk of prejudice to the opposing partyo The public policy favoring disposition of cases on the meritso The availability of less drastic sanctions

FRCP 37(a), (f)Light Sanctionso Failure:

To make a mandatory disclosure under FRCP 26(a) To answer a question at a deposition To answer an interrogatory Of a party to produce documents under FRCP 34 Participate in a discovery plan in good faith

FRCP 37(a)(4)- an evasive or incomplete response is a failure to respondo Remedy Provided:

Motion to compel a response The ct. must require payment of reasonable attorney fees Discussed in advisory notes

o FRCP 37(a)(1)Meet and confer requirement FRCP 37(b),(d),(c)(1)Heavy Sanctions

o FRCP 37(b)Failure to comply w/ a ct. ordero FRCP 37(d), (c)(1)Failure:

Of a party to attend a deposition To serve answers to interrogatories To respond to a request for production To make mandatory disclosures under FRCP 26(a) Not merely an incomplete response- Complete failure is

required

o Sanctions Available Order that particular facts are established for purposes of the

action Order prohibiting party from opposing certain evidence Judgment by default or dismissal of the action (Capital

Punishment)

Contempt for disobedience of ct. orders Reasonable attorney fees For FRCP 37(c)(1)- Inform jury of failure to disclose


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IV.SUMMARY JUDGMENT-FRCP56A.DISPOSITIVE MOTIONS

FRCP 12(b)(6)Failure to State a Claim on which Relief Can Be Granted

FRCP 12(c)Judgment on the Pleadings (only after an answer) FRCP 56Summary Judgment

o Applicable when material obtained through discovery is the basis ofthe motion. You rely on more than the pleadings. Pleadings are only

relevant, not evidence (b/c not signed under oath).

Thus, if did not deny something, it is admitted and can beused for summary judgment.

o Different from directed verdict because it is a pre-trial motion.o FRCP 56(c) NO GENUINE DISPUTE AS TO ANY

MATERIAL FACT.

Either party may win a case prior to trial by demonstratingthat there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law

Rule 56(f) = a motion for summary judgment will be delayed

if an opposing party has not been able to complete discovery

o Chibundu: Rule 56 requires moving part not simply to produceevidence but to prove that opponent is not entitled to judgment and

cannot succeed at all (such that all material evidence that could

conceivably create a material issue of fact must be negated)

Test: Look at all the evidence and ask: is there a materialissue of fact in dispute? If no summary judgment ok

FRCP 50 Judgment of a Matter of Law (JNOV / DIRECTED VERDICT)o The effect of directing the verdict is simply to take the case out of the

juries hands.

o At trial, party who does not have burden of production may, at closeof opponents case, move for JMOL without presenting any evidence

of his own.

o Court will inquire whether evidence met burden of production(whether a finder of fact could reasonably find for that party on the

basis of the evidence presented)

B.BURDEN SHIFTING IN SUMMARY JUDGMENT Burden of Proof

o Burden of persuasiono Burden of production


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A party may shift his burden of production by presenting enough evidencethat a reasonable finder of fact MUST find for him.

The burden is on moving party to negate every possible theory. Must showthat under no conceivable set of facts, given evidence you had, could

nonmoving party prevail.

BURDEN IS LOWER IF IS REQUESTING SUMMARY JUDGMENT Adickes v. S.H. Kress Co.

o Facts: Civil rights action 1983. , Adickes, sues after she isrefused service. claims conspiracy b/n police and restaurant

because she is accompanied by African Americans. Summ. judgment

granted when could not produce evidence to support a conspiracy.

o Rule: In an action based on conspiracy, summary judgment maynot be granted unless a defendant can show that no evidence

thereof exists.

overcomes s motion for summary judgment by pointingout evidentiary gaps in the motion

must make compelling showing to obtain summaryjudgment

RULE WAS MODIFIED IN CELOTEX- Not overruled The Adickes case made it difficult to get summary judgment Three basic approaches

o Traditional approach- movant who does not have burden ofproduction at trial must establish truth of his position and shift burden

of production to non-movant

o Professor Louis approach- movant who does not have burden ofproduction at trial must only meet a burden of production OR

demonstrate absence of proof of an essential element

o Professor Curries approach- treat SJ the same as a directed verdict,imposing no burden whatsoever on movant who would not have

burden of production at trial

Celotex Corp. v. Catretto Facts: Catrett, , sues Celotex, , for death of her husband as a result

of exposure to asbestos. moves for sum. judgment, contending that

failed to identify, in answering interrogatories specificallyrequesting such info., any witnesses who could testify about the

decedents exposure to s asbestos.

o Rule: Summary judgment must be entered against a party whofails to make a showing sufficient to establish the existence of an

element essential to his case and on which he bears the burden of

proof at trial.


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Louis approach.o THE SUPREME CT. DID NOT OVERRULE ADICKES- How

can they be reconciled? They focused on two different questions-

They deal with two different methods by which a moving party can

acrry its initial burden of production.

Central question in Adickes was whether moving party hadcarried its initial burden of production by producing

affirmative evidence negating an essential element of

nonmoving partys claim.

Central question in Celotex was whether the moving party hadcarried its initial burden of production by showing that the

nonmoving party did not have enough evidence to carry its

ultimate burden of persuasion at trial.

Where neither party could prove either the affirmativeor the negative of an essential element of the claim

Celotex is important in 2 ways:o Celotex integrates the burden of proof borne by the parties at trial

with the corresponding burdens on a sum. judgment motion.

o Celotex hints at a larger, more significant role for summary judgmentin deciding cases

What is the moving partys burden?o Only to inform the ct. of its motion and identify the portions of the

pleadings, etc. that it believes demonstrate the absence of a genuine

issue of material fact.

Anderson v. Liberty Lobbyo Facts: Libel action by public figure against a newspaper columnist.o Rule: Under the applicable law of libel, at trial would have the

burden of proving Actual Malice with convincing clarity.

Higher standard than the preponderance of evidence. Theburden of persuasion raises the burden of production.

Matsushita v. Zenitho Facts: Civil conspiracy action by Zenith, , against the Japanese

electronics industry, . alleged a conspiracy to drive the American

companies out of business by selling products below cost.o Rule: When the claims are implausible and make no economic sense,

s must offer more persuasive evidence to support their claims than

otherwise would be necessary. Neither s' pricing policies, their

conduct in the Japanese market, nor their agreements respecting

prices and distribution in the American market sufficed to create a

genuine issue for trial under Rule 56(e).


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C.DETERMINING THE APPROPRIATE STANDARD OF PROOF Arnstein v. Porter

o Facts: Arnstein, , appealed a summ. judgment for Porter, ,who alleged, had stolen tunes for several popular songs

had written.

o Rule: Where credibility of the parties is crucial, summaryjudgment is improper and a trial indispensable.

Dyer v. MacDougallo Facts: Dyer, , filed a complaint against MacDougall, . Four

counts of slander and libel. presented affidavits of purported

witnesses in which they denied hearing utterances. Two of the

four counts were dismissed. appealed, arguing he could still

bring demeanor evidence before the jury.

o Rule: A directed verdict against a is appropriate where all ofs witnesses deny the allegation of the complaint.

Demeanor evidenceo A jury is expected to take into consideration all the sense

impressions they get from a witness.

o Nothing in the law says that juries are not entitled to lendcredence to characteristics of testifying witnesses

o HOWEVER Mannerisms that people tend to associate with lying are

characteristics of people who are simply nervous

Many witnesses are nervous about testifying, and itmay be that some liars are not nervous about lying.

Some psychological research indicates that people arenot effective at detecting lies from observing the

speaker.

Summary judgment is inappropriate in cases raising issues of state ofmind

Slightest doubt test (super criticized)- A litigant has the right to atrial where there is the slightest doubt as to the facts.

o Superseded (by Matsushita), demanding non-movant make astronger evidentiary showing- do more than show ametaphysical doubt as to material facts.

FRCP 56(e)enables a party who believes there is no genuine disputeas to a specific fact essential to the other sides case to demand at least

one sworn averment of the fact before the lengthy process of litigation

begins.


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V.PRE-TRIAL CONFERENCESA.PRETRIAL CONFERENCES-FRCP16

Ct. may order the attorneys and any unrepresented parties to appear for oneor more pretrial conference for such purposes as:

o Expediting disposition of the actiono Establishing early and continuing control

Types of pretrial conferences:o Scheduling or status conferences early in the case

FRCP 16(b) Within 120 Days of service on the defendant (or 90 days after

any defendant has appeared)

At conclusion, judges and attorneys fill out order to setdeadlines for the rest of the case

o Final pretrial conferences FRCP 16(e) Held close to trial Purpose is to formulate a plan for trial Pretrial order Order may be modified only to Prevent Manifest Injustice

o Settlement conferences Early settlements:

o Eliminates precedento Shut out public scrutinyo Reduce Accountabilityo Peace doesnt equal Justice

FRCP 16 is supplemented by local federal ct. rules Heileman Brewing Co. v. Joseph Oat Corp.

o Facts: Joseph Oat, , represented by counsel, disobeyed a ct. order tosend a corporate representative to a ct. hearing, and was sanctioned.

o Rule: A dis. ct. may order litigants represented by counsel toappear at a pretrial conference to discuss settlement.

Judicial activism/intervention in the adversarial system However, circumstances could arise in which requiring a

corporate rep. to appear might be onerous, unproductive,

expensive in relation to claim Abuse of discretion

Settlement Deviceso Growing efforts by both federal and state courts to encourage

settlement through third parties

o Devices


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Mediation Early Neutral Evaluation Court-Annexed Arbitration Summary Jury Trial Mini-Trial

B.INCENTIVES TO SETTLE-SHIFTING FEES &COSTS Terminology

o American Rule - each party pays their own legal fees It would restrict access to ct. if had to pay s attorney fees

if the lost

Rule is subject to exceptionso English Rule - loser pays winners attorney fees

Winner is not fully compensated if winner has to pay anyattorney fees

o Pooling Insurance (we all pay the premium, they cover the attys fees)

o Contingency Fees The fee is a % of the judgment. Its a kind of pooling, because the winning cases subsidize the

losing ones.

o Fee Shifting Making the losing party pay the legal costs.

FRCP 68- an incentive to settleo can make offer of settlement to o If refuses and the judgment is less than the settlement offer, is

entitled to costs incurred after the making of the offer

o This provision is important in civil rights cases, where costs includeattorney fees

FRCP 54(d)Unless a federal statute, these rules, or a court order providesotherwise, costs other than attorneys fees should be allowed to the

prevailing party.

Federal attorney fee statutes:o 42 U.S.C. 1988o 42 U.S.C. 1983o 28 U.S.C. 2412

Marek v. Chesnyo Facts: Chesny, , refused a settlement offer ($100,000) in a 1983

claim and was awarded less at trial ($60,000 + $32,000 in attorneys

fees).


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o Rule: Attorneys fees incurred by subsequent to an offer ofsettlement will not be paid when recovers less than the offer.

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