Civ Pro II Outline:

Simple Joinder: Joinder: the union in one lawsuit of multiple parties who have the same rights or against whom rights are claimed as co-plaintiffs or codefendants. The combination in one lawsuit of two or more claims, or grounds for relief.

The ability to bring in multiple parties or multiple claims.

Two questions for determining joinder: Are the requirements of the applicable joinder rule satisfied? If no, cant join If yes, go on to Step 2 Are the applicable jurisdictional requirements satisfied? PJ, SMJ, maybe venue If no, cant join

FRCP 18 Joinder of Claims: FRCP 18(a): In General A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

FRCP 18(b): Joinder of Contingent Claims A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties' relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.

FRCP 18 Notes: Plaintiff uses FRCP 18 A party can bring all claims he has against another party, even if claims are unrelated.

Rule is permissive dont HAVE to bring all claims.

FRCP 18 is subject to other procedural rules: Must be PJ over litigants, SMJ over claims. May need to satisfy FRCP 13, 14, 15, e.g.

RULE: A party may bring as many claims as it has against an opposing party.

Most typically, joinder under this Rule is plaintiffs trying to join multiple claims.

Limitation comes in when we look to jurisdiction; the Rule itself creates NO limitations.

FRCP 13 Cross-Claims & Counterclaims: Compulsory Counter-Claims: In General: A pleading must state as a counterclaim any claim that, at the time of its service, the pleader has against an opposing party if the claim: Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim, AND Does not require adding another party over whom the court cannot acquire jurisdiction.

Exceptions: The pleader need not state the claim if: When the action was commenced, the claim was the subject of another pending action; OR The opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.

Permissive Counterclaim: A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

Relief Sought in a Counterclaim: A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

Counterclaim Against the United States: These rules do not expand the right to assert a counterclaim, or to claim a credit, against the United States or a United States officer or agency.

Counterclaim Maturing or Acquired After Pleading: The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.

Crossclaim Against a Co-Party: A pleading may state as a crossclaim any claim by one party against a co-party if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Joining Additional Parties: FRCP 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

Separate Trials; Separate Judgments: If the court orders separate trials under FRCP 42(b), it may enter judgment on a counterclaim or crossclaim under FRCP 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.

FRCP 13 Notes: Defendant uses FRCP 13 Counterclaims are asserted in defendants answer to the complaint. If defendant fails to add a counterclaim in the answer, defendant may amend or seek leave to amend to add the counterclaim under FRCP 15.

Compulsory Counterclaims: Arises from same transaction or occurrence that gave rise to plaintiffs complaint. Must be asserted or it is waived Exceptions: Immature Claims Lack of jurisdiction over 3rd parties Pending lawsuits Must satisfy requirements of SMJ, PJ, but not venue

Permissive Counterclaims: Does not arise from same transaction or occurrence that gave rise to Ps complaint, or falls into one of exceptions noted in the prior slide. Defendant can bring in same lawsuit or in separate action. Must satisfy requirements of SMJ and PJ; split of authority on need to satisfy venue.

Cross-Claims: FRCP 13(g) Crossclaims are claims brought by and against persons on the same side of the litigation, turning them into opponents. Must arise out of same transaction or occurrence as original action. Therefore, are always permissive. Must satisfy requirements of SMJ and PJ, but not venue. FRCP 13(a)(1): At the time the answer is served, the time the counterclaim is asserted, the claim must be available. FRCP 13(a)(2)(A): If the claim were already brought in another court, then the claim would not be considered a compulsory counterclaim.

Counterclaim Analysis: Counterclaim: claim against an opposing party.

Logical Relationship Test: Determines whether counterclaim is compulsory or permissive.

Look at the core of operative facts and determine whether the original lawsuit and the counterclaim come out of the same transaction or occurrence (STO). If YES: Compulsory (same STO). If NO: Permissive (not same STO)

Compulsory Counterclaim: If you don't bring the claim in the original lawsuit then you lose it.

If compulsory, then there is no independent jurisdictional basis and the claim will be joined under supplemental jurisdiction because it arises out of the same case or controversy (same core of operative facts).

Since the claim is joined under supplemental jurisdiction it is held to the discretion of the court under USC 1367(c).

Permissive Counterclaim: You can wait and bring the claim in a separate lawsuit.

If permissive, there is an independent basis for SMJ.

The claim must meet either: Federal question or Diversity jurisdiction.

If no SMJ, then supplemental jurisdiction may be available.

Crossclaim Analysis: Crossclaim: claim against a co-party.

The claim must arise out of: The transaction or occurrence that is the subject matter of the original action or Of a counterclaim OR If the claim relates to any property that is the subject matter of the original action.

Same Transaction or Occurrence Test: Look at core of operative facts and determine whether the original lawsuit and the crossclaim arise out of the STO or series of STO. If YES, then crossclaim is proper. If proper, then there is supplemental jurisdiction because the core of operative facts test is met. If NO, then crossclaim is not proper.

If there is no SMJ, the claim will be brought under supplemental jurisdiction and will be held to the discretion of the court under USC 1367(c)

FRCP 20 Permissive Joinder of Parties: Persons Who May Join or Be Joined: Plaintiffs: Persons may join in one action as plaintiffs if: They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; AND Any question of law or fact common to all plaintiffs will arise in the action.

Defendants: Persons, as well as a vessel, cargo, or other property subject to admiralty process in rem, may be joined in one action as defendants if: Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; AND Any question of law or fact common to all defendants will arise in the action.

Extent of Relief: Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.

Protective Measures: The court may issue orders, including an order for separate trials, to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. Plaintiffs may join in one action as plaintiffs if: They assert a right arising out of the same transaction, occurrence, or series of transaction or occurrences; AND Any question of law or fact common to all plaintiffs will arise in the action.

When FRCP 20 is met, MUST STILL ASK IF THERE IS SMJ! If there is no SMJ, see if it can be joined under supplemental jurisdiction.

28 USC 1367(b): When supplemental anchor claim is based solely on diversity, the courts won't have supplemental jurisdiction over claims by plaintiffs against persons made parties under FRCP 14, 19, 20, or 24 OR by plaintiffs joined under FRCP 19 OR seeking to intervene as plaintiffs under FRCP 24, when exercising jurisdiction would be inconsistent with the jurisdictional requirements of section 1326. If one plaintiff meets amount in controversy and there are multiple claims against the defendant, as long as there is complete diversity, the claims that do not meet the amount in controversy requirement will be allowed to join under supplemental jurisdiction.

FRCP 14 Third-Party Practice (Impleader): When a Defending Party May Bring in a Third Party: Timing of the Summons and Complaint: A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer. Third Party Defendant's Claims and Defenses: The person served with the summons and third-party complaint, the "third-party defendant": Must assert any defense against the third-party plaintiff's claim under FRCP 12; Must assert any counterclaim against the third-party plaintiff under FRCP 13(a), and may assert any counterclaim against the third-party plaintiff under FRCP 13(b) or any crossclaim against another third-party defendant under FRCP 13(g); May assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; AND May also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

Plaintiff's Claims Against a Third-Party Defendant: Plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

The third-party defendant must then assert any defense under FRCP 12 and any counterclaim under FRCP 13(a), and may assert any counterclaim under FRCP 13(b) or any crossclaim under FRCP 13(g).

Motion to Strike, Sever, or Try Separately: Any party may move to strike the third-party claim, to sever it, or to try it separately.

Third-Party Defendant's Claim Against a Nonparty: A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

Third-Party Complaint in Rem: If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem. In that event, a reference in this rule to the summons includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

When a Plaintiff May Bring in a Third Party: When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.

Admiralty or Maritime Claim: Scope of Impleader: If a plaintiff asserts an admiralty or maritime claims under FRCP 9(h), the defendant or a person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff, bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, for remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences.

Defending Against a Demand for Judgment for the Plaintiff: The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party defendant. In that event, the third-party defendant must defend under FRCP 12 against the plaintiff's claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff had sued both the third-party defendant and the third-party plaintiff.

FRCP 14 Notes: Authorizes a defending party to bring a third party defendant in the suit.

A defendant may properly bring in a third party defendant when they are or may be liable to the defendant for all or part of the claim against it.

Requires that the claim by the defendant be a claim of derivative liability. If I as defendant have a liability to the plaintiff, then third party defendant has an obligation under a separate legal relationship between us to pay me some or all of what I have had to pay to the plaintiff.

FRCP 14(a)(2): Third party defendant can defend on the claim using any defense under FRCP 12 OR raise defenses in the original case of plaintiff v. defendant. If they release liability between the plaintiff and defendant in the original case then, by definition, the third party defendant cannot be liable. Third party defendant CANNOT be liable if the original defendant is not liable.

FRCP 14(b): A plaintiff can bring in a third party defendant as long as they are using derivative liability and are in a defending position (counterclaim by defendant, crossclaim by another plaintiff, etc.).

If FRCP 14 authorizes the impleader, the third party still has to be subjected to PJ and SMJ in the court where the action is pending.

28 USC 1367(b): DOES NOT disallow claims by defendant's seeking to use supplemental jurisdiction based solely on diversity.

FRCP 4(k)(1)(A): PJ of the federal court is where the party is subject to general jurisdiction.

FRCP 4(k)(1)(B): If the third party defendant can be served within 100 miles of the courthouse where the action is pending then the court will have jurisdiction even if they would not meet the long-arm statute or the 14th amendment or have sufficient minimum contacts.

FRCP 19 Required Joinder of Parties: Persons Required to Be Joined if Feasible: Required Party: A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: In that person's absence, the court cannot accord complete relief among existing parties; or That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: As a practical matter impair or impede the person's ability to protect the interest; or Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Joinder by Court Order: If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

Venue: If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

When Joinder Is Not Feasible: If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.

The factors for the court to consider include: The extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

The extent to which any prejudice could be lessened or avoided by: Protective provisions in the judgment; Shaping the relief; or Other measures

Whether a judgment rendered in the person's absence would be adequate; and

Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Pleading the Reasons for Nonjoinder: When asserting a claim for relief, a party must state: The name, if known, of any person who is required to be joined if feasible but is not joined; and The reasons for not joining that person. Exception for Class Actions: This rule is subject to FRCP 23.

FRCP 19 Notes: MUST be joined, not MAY be joined like FRCP 20.

Rule states that you cannot leave out a party who could be joined in this case if their absence would create any of the 3 problems identified in the Rule.

FRCP 19(1)(A): If we go forward with the lawsuit as structured, in the absence of the party, complete relief cannot be afforded between the parties, then the party MUST BE JOINED IF FEASIBLE. EX: if there are undivided ownership rights in a piece of property then all the owners must be involved in the suit, can't give complete relief to one owner if there is undivided ownership rights by others b. protects P and the system.

FRCP 19(a)(1)(B)(i): If the absentee claims interest in the subject matter in the suit and is so situated that judgment without the party as a practical matter impairs or impedes the person's ability to protect their interest the party MUST BE JOINED IF FEASIBLE.

Protects the outsider to the lawsuit.

FRCP 19(a)(1)(B)(ii): If the absentee claims interest in the subject matter in the suit and is so situated that judgment without the party leaves an existing party subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest then the party MUST BE JOINED IF FEASIBLE. Protects the defendant.

If any one of those 3 problems occur, THEN must determine is joinder is feasible. Whether there is PJ or SMJ?

If joinder IS FEASIBLE, then the court will order the party to be joined.

FRCP 19(b): If joinder is not feasible "indispensable party. If the party is so indispensable that, given their absence because they couldn't be joined under PJ or SMJ (not feasible), should the action be allowed to continue anyway OR should the action be dismissed because they can't be joined? Court must determine, in equity and good conscience.

FRCP 19(b)(1-4): Factors for determining whether a party is indispensable a. extent of prejudice against absentee or existing parties (how bad is the problem identified under FRCP 19(a)?)

Extent to which prejudice can be lessened or avoided by: Protective provisions in the judgment, shaping the relief OR other measures. Whether judgment would be adequate. Whether plaintiff would have adequate remedy if action were dismissed (alternative forum, etc.)

Once a proper FRCP 14 claim is done, FRCP 18 kicks in and you can join additional claims BUT the first claim must meet FRCP 13(g) or FRCP 14 AND MUST STILL MEET SMJ.

FRCP 24 Intervention: Intervention of Right: On timely motion, the court must permit anyone to intervene who: Is given an unconditional right to intervene by a federal statute; or Claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Permissive Intervention: On timely motion, the court may permit anyone to intervene who: Is given a conditional right to intervene by a federal statute; or Has a claim or defense that shares with the main action a common question of law or fact.

By a Government Officer or Agency: On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on: A statute or executive order administered by the officer or agency; or Any regulation, order, requirement, or agreement issued made under the statute or executive order.

Delay or Prejudice: In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

Notice and Pleading Required: A motion to intervene must be served on the parties as provided in Rule.

The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

FRCP 24 Notes: FRCP 24(a): The court MUST allow the party to intervene, there is very little limitation. If the court goes forward without the absent party, they may have an interest harmed by the judgment.

MUST intervene in a timely motion, timeliness is determined by: How long the lawsuit has been going on. If the party knew their interest could be impaired and how long they knew.

Intervening party must show that a party in the suit does not already adequately represent their interest.

FRCP 24(b): The court MAY permit a party to intervene, completely discretionary. Function of efficiency.

If there is an overlap regarding claims and defenses that are already in the lawsuit, it would be efficient to solve them all in one lawsuit.

BUT WILL NOT ALLOW to the detriment of the existing parties: If it would result in undue delay it will hurt plaintiff and won't be allowed. Will not allow if there is anyway it will impair how the suit will go forward by the plaintiff OR defendant.

FRCP 24(c): Motion must state grounds for intervention AND a pleading that sets out the claim or defense for which intervention is sought. If intervening as plaintiff, motion would be accompanied by proposed complaint. If intervening as defendant, motion would be the answer.

FRCP 22 Interpleader: Grounds By a Plaintiff: Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or The plaintiff denies liability in whole or in part to any or all of the claimants

By a Defendant: A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

Relation to Other Rules and Statutes: This rule supplements, and does not limit, the joinder of parties allowed by FRCP 20.

The remedy this rule provides is in addition to, and does not supersede or limit, the remedy provided by 28 USC 1335, 1397, and 2361. An action under those statutes must be conducted under these rules.

FRCP 22 Notes: In the language of interpleader, the pool of money is called the stake. The person in possession of the pool of money is called the stakeholder. The stakeholder is the one who uses interpleader.

STEP ONE: Is interpleader appropriate? Are there multiple adverse claims to the stake? Is there a possibility of double or multiple liabilities? If appropriate then go to step two.

STEP TWO: Determine the stake.

STEP THREE: Determine the stakeholder, the person in possession of the stake. Determine whether the stakeholder themselves have a claim to the stake IF THEY DO HAVE A CLAIM, then they are an interested stakeholder. IF THEY ARE, then they are a claimant as well.

IF THEY ARE NOT, they are a disinterested stakeholder and they are released from the suit and do not have to be involved, they turn the stake over to the court and the court handles the stake.

STEP FOUR: Identify the claimants to the stake. If used in federal court THEN we must determine which form of the device is available, FRCP 22 or Statutory, usually based on SMJ requirements

STEP FIVE: Litigation on the merits, go forward with the litigation and determine who should get the stake.

INTERPLEADER

Issue"Statutory" Interpleader"Rule" Interpleader

Federal SMJMinimal diversity 28 USC 1335, determined between claimant's, at least 1 claimant must be diverse from another claimant and $500 or moreComplete diversity 28 USC 1332, determined between stakeholder and all claimants and in excess of $75K

PJNationwide SOP: as long as you can serve claimant within a judicial district in US they will be subject to PJ where the suit is being broughtOrdinary jurisdiction rules, FRCP 4(k)(1)(A), contacts with claimants required.

VenueJudicial district where any claimant resides.Ordinary venue rules, 28 USC 1391.

InjunctionStatutory authorized injunctions against other suits must show that statutory interpleader is appropriate and injunction will be given.Anti-Injunction Act, prohibited from enjoining state court actions unless you can show injunction is necessary in aiding court's jurisdiction.

Depositing The Stake With CourtRequired, part of establishing 28 USC 1335 SMJ, prerequisite to establishing and hearing interpleader action.No requirement, equitable power, usually used when stakeholder is disinterested.

FRCP 23 Class Actions: Class actions are representative litigations: The people designated as the clients, the class representatives, are going to represent the interests of everyone else in that class. Their decisions will effect how the rest of the class's rights are presented in the class action suit. BEFORE determining FRCP 23(a)(1) and (2) you must identify the class. BEFORE determining FRCP 23(a)(3) and (4) you must identify the class representatives.

FRCP 23(a): Prerequisites that have to be met for a class action to potentially be certified: FRCP 23(a)(1): Numerosity It would not otherwise be practical to join all the parties, not just numbers BUT numbers are important.

FRCP 23(a)(2): Commonality Requires that ALL of the class share common questions of law or fact.

FRCP 23(a)(3): Typicality Looks at the class representatives claims and defenses. Make sure that the representatives are standing in the same shoes as the rest of the class.

FRCP 23(a)(4): Adequacy of Representation Looks at the class representatives AND the attorneys. Make sure attorneys have experience in the subject area and have experience in doing large class action suits.

AFTER SATISFYING ALL FOUR of the FRCP 23(a) prerequisites, then the class must fit in one of the FRCP 23(b) types of class actions: FRCP 23(b)(1)(A): If separate actions would establish incompatible standards of conduct for the opposing party. EX: 2 separate suits against a city for issuing a bond, both win, one for the bond and one against it. This would be an incompatible standard of conduct. By bringing the actions in a class action with 2 different subsets of classes, the judgment for or against the bond would be binding on everyone in the action.

FRCP 23(b)(1)(B): If separate actions, as a practical matter, may impair or impede those not parties and the ability to protect their interests. EX: allows 100,000 injured parties to be represented in a class action suit and the $5 million will be distributed throughout the class, instead of bringing separate suits and only the first 100 plaintiffs getting any money remedies before the company goes bankrupt.

FRCP 23(b)(2): Injunctive or declaratory relief. FRCP 23(b)(3): Common Question Class Actions Predominance: Must have a common question of law or fact of class members that predominates over any questions affecting only individual members AND

Superiority: Class action must be superior to other available methods for fairly and efficiently adjudicating the controversy.

Matters pertinent to these findings include: FRCP 23(b)(3)(A): Class members interests in individually controlling the prosecution or defense of separate actions.

FRCP 23(b)(3)(B): Extent and nature of any litigation concerning the controversy already begun

FRCP 23(b)(3)(C): Having all the members of the class from around the country would be better to use this rule to resolve it all at once.

FRCP 23(b)(3)(D): Manageability, difficulties in managing a class action.

FRCP 23(c)(2)(B): For FRCP 23(b)(3) cases, representatives have an obligation of actual notice to all individuals and those individuals must have the option to opt out of the class action, therefore not binding them to the judgment of the class action.

FRCP 23(c)(2)(B)(i-vii): The notice must clearly and concisely state in plain, easily understood language: The nature of the language The definition of the class certified The class claims, issues, or defenses That a class member may enter an appearance through an attorney if the member so desires That the court will exclude from the class any member who requests exclusion The time and manner for requesting exclusion AND The binding effect of a class judgment on members under FRCP 23(c)(3)

If certification is DENIED: The case usually goes away because the members aren't willing to bring the individual claims because they are so small.

If certification is ACCEPTED: It usually results in a settlement

FRCP 23(f): Allows party to attempt to appeal a decision to certify or not certify a class. It is up to the discretion of the court to allow that appeal Must be filed within 14 days after the order is entered.

Res Judicata/Claim Preclusion U.S. Constitution Article IV Section 1: Full Faith and Credit Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

1738 State and Territorial statutes and judicial proceedings; full faith and credit The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory, or Possession thereto.

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possession by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

Applies when we look at a prior judgment and we say that the judgment precludes a party from bringing a subsequent lawsuit.

Compulsory counterclaim based on preclusion, if you don't use it, you lose it.

When precluding a claim, the entire lawsuit is precluded.

The claim should have been brought in a prior action and wasn't, therefore the claim can no longer be brought in another suit.

Depending on the jurisdiction that renders a judgment, the claim preclusive effect can be different in a subsequent lawsuit. Different jurisdictions are going to apply different tests or different definitions of the prior claim

If the 2nd court is in a different jurisdiction, Section 1738 of the Constitution requires sister states to give full faith and credit to the judgment of the courts of the sister states.

If you had a court available to you where you could have brought both claims but you instead went to a court of limited jurisdiction, then there are some states where they will preclude you because you had an option available to bring both claims but didn't.

Any defenses that should have been brought in the 1st action have to be brought in the 1st action.

Judgments entitled to preclusive effect: Full jury trial Judgment as a matter of law Summary judgment Federal law 12(b)(6) dismissal

Requirements for Claim Preclusion: Same claim in 2nd suit as in the 1st suit (FRCP 13 and 18) Doesn't have to be "identical" Includes claims that SHOULD HAVE been brought in the 1st action What claims SHOULD HAVE been brought as part of the same lawsuit Transactional definition (notice pleading): Determine the underlying transaction that gave rise to the original claim and compare it to the transaction that gave rise to the 2nd suit (time, space, origin, motivation), is it the same core of operative facts?

Same evidence definition (fact pleading): Would the same evidence be used to prove the 2nd claim as would be used to prove the 1st claim? Looks at the facts of each element being brought in the suit.

Also includes claims that COULD HAVE been brought in the 1st action. If you COULD NOT have brought the claim in the 1st action then the claim will not be precluded from being brought in a 2nd suit.

Also includes DEFENSE and COMPULSORY COUNTERCLAIMS and if the 2nd claim would NEGATE THE RIGHTS that the 1st judgment established.

Same parties in 2nd suit as in the 1st suit OR parties in privity with parties to the 1st suit (FRCP 19 and 20): Privity: identical legal rights. The person in the 1st suit has to be so identified with the interest of another that he represents the same legal right as the person in the 2nd suit is trying to present.

Circumstances where privity makes it so we can bind someone to a judgment even though they were not formally joined as a party themselves: Agreement by the parties to be bound by a prior action. Preexisting "substantive legal relationships" Such as preceding and succeeding owners of property. Adequate representation by someone with the same interests who was a party. Such as trustees, guardians, or other fiduciaries. A party "assuming control" over prior litigation. Party who loses an individual suit then suing again, this time as the representative of a class. Special statutory schemes such as bankruptcy and probate proceedings, provided those proceedings comport with due process.

Mutuality

Final judgment "on the merits" Judgment whereby there is nothing left to do but execute that judgment

Collateral Estoppel/Issue Preclusion: Does not bar the litigation of the entire claim, it bars the party from relitigating an issue on which it has already litigated and lost.

The opportunity to have raised an issue is not enough, the issue had to HAVE BEEN LITIGATED.

When issue preclusion is raised with the same parties, 1st issue to address is WHETHER THERE IS CLAIM PRECLUSION.

If a party admits things in 1st lawsuit they are not bound by those admissions in another suit because they were not litigated.

Alternative Bases: If one of the determinations could be taken away and the suit would still end in the same way, then they are alternatives EX: Judge finds both no damages AND contributory negligence (alternative bases) If you cover one finding can you still get the same result? What preclusive effect should be given to the alternative bases? Under First Restatement they would all be given preclusive effect. Under Second Restatement none would be given preclusive effect UNLESS the issue was appealed and affirmed on appeal.

4 Types of Issue Preclusion Mutual Offensive: same parties or parties in privity AND plaintiff trying to estop defendant.

Mutual Defensive: same parties or parties in privity AND defendant trying to estop plaintiff.

Non-Mutual Offensive: can ONLY be used against a party or in privity with a party, can't be used against a stranger AND plaintiff trying to estop defendant.

Non-Mutual Defensive: defendant trying to estop plaintiff. EX: plaintiff sues defendant in 3-car accident. Plaintiff hires lawyer who does a bad job and loses the case. Passenger in the other car didn't want to be part of the lawsuit with that lawyer, so they hire a better one. They should not be stuck with the result of the bad lawyer without having their day in court. Non-mutual because the passenger is a stranger to the 1st suit against the original defendant.

Requirements for Issue Preclusion: Same issue in 2nd suit as in the 1st. Had to have been actually litigated AND Determined

Must have valid final judgment in 1st suit

Determination of the issue was essential to the prior judgment Essential: necessary to determine the prior judgment.

Can you reach the result without the finding? If so, then it is NOT ESSENTIAL.

If Federal court dismisses case on PJ grounds, the PJ has already been litigated and determined and the plaintiff would not be able to file in state court because it would be dismissed on issue preclusion on the PJ issue.

How to determine whether a state court has to dismiss a case on lack of jurisdiction grounds if Federal court dismissed on both PJ and SMJ: Determine whether the court follows the 1st or 2nd Restatement approach: If First Restatement, then all precluded, dismiss case.

If Second Restatement, check to see if there were appeals IF NO APPEALS, no preclusive effect IF THERE WERE APPEALS, were they affirmed? IF YES, then there is preclusive effect

Determination of parties against who issue preclusion can be used. If any of these 4 requirements is not met, there is no issue preclusion.

If ALL 4 are satisfied, then we look to the discretion of the court: Did the party against whom preclusion is being invoked have a Full and Fair Opportunity to litigate? Full and Fair Opportunity to litigate the issue Could party invoking issue preclusion have feasibly joined the 1st suit? Court will look at why the person wasn't in the 1st suit; if there was a problem with the person joining in the 1st suit. Incentive to litigate issue in 1st suit has to be greater than or equal to that of the 2nd suit. Procedural opportunities available in the 2nd suit that were not available in the 1st suit that could really lead to a different result. Prior inconsistent judgments make sure that there are no inconsistencies with the judgment that the party invoking is trying to use.

If the court believes it is fair, then issue preclusion will apply.

Discovery:

Discoverable Material: FRCP 26(b) describes what may be discovered under the federal rules. Unless discovery has been otherwise limited by a protective order of the court, a party may discover any matter that is: Relevant to a claim or defense; Reasonably calculated to lead to discovery of admissible evidence; Not privileged; Not constituting work product (A special showing is required for discovery of work product prepared or acquired in anticipation of litigation or for trial.)

Discovery may include: Information Already In The Discoverers Possession: Even when the discoverer already knows or possesses certain information, he is entitled to discover it from his adversary.

Impeachment Material: Discovery includes material that may impeach an opponents witnesses.

Opinions & Contentions: Discovery is not limited to facts, but may also include opinions held by non-experts and contentions regarding the facts or the application of law to the facts.

Insurance agreements: FRCP 26(a)(1) expressly requires disclosure of insurance agreements available to satisfy any or all of any judgment, even though they remain inadmissible at trial.

Questionable Areas of Discovery: Financial Information: Unless the amount of a partys assets is itself a relevant issue in the case, as it would be in an action to enforce a money judgment or in an action for punitive damages measured by the amount of the assets, discovery of assets other than insurance, and of related information such as tax returns and bank statements, may be beyond the scope of discovery.

Even when assets are relevant and discoverable, privacy concerns may warrant postponing discovery until the discoveree has had an opportunity to contest the claim to which the assets are relevant.

Electronic Information FRCP 26(b)(2) is silent about information stored in electronic form. In fact, the discovery rules generally appear to be document-oriented.

Nevertheless, courts have almost universally interpreted FRCP 34 to allow discovery of electronic information if it is relevant and non-privileged.

Privileged Communications: The attorney-client, doctor-patient, priest-penitent, interspousal privilege and the privilege against self-incrimination are commonly recognized privileges.

In order to prove that a communication is privileged, the party claiming privilege must show that such communication: Was made with an expectation of confidentiality; Is essential to a socially approved relationship or purpose; and

Has not been waived by disclosure of the contents of the communications to persons outside the relationship.

Privileges are narrowly construed in order to minimize their effect on liberal disclosure. The proponent of a privilege has the burden of establishing its existence. [FRCP 26(b)(5)]

Work Product: General Rule: Work product, generally defined as information prepared or obtained in anticipation of litigation or preparation for trial by or for a party or his representative, enjoys a qualified immunity under FRCP 26(b)(3).

The Rule authorizes discovery of work product in the form of documents and tangible things only upon a showing that the party seeking discovery: Has substantial need of the materials in the preparation of his case, and Is unable without due hardship to obtain the equivalent of such materials by other means.

The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v. Taylor, in which SCOTUS recognized a common law qualified immunity of work product from discovery. In Hickman, SCOTUS stated that when the discoverer of work product shows that production is essential to preparation of his case and that denial of discovery would cause hardship because witnesses are no longer available or can be reached only with difficulty, production of relevant and non- privileged facts in an attorneys file should be allowed.

FRCP 26(b)(3): Work Product Privilege/Trial Preparation Certain material is off-limits and the only way to get is if: Theres a substantial need; The information is not otherwise available.

The goal of this rule is: Protection of the individuals privacy and attorneys legal conclusions, thoughts, mental impressions, theories;

Preventing free-riders by discouraging opposing counsel from not doing any work and then relying on the other counsel;

Alternatives could be used such as interrogatories, etc.

Prepared in Anticipation of Litigation or for Trial: Immunity is limited by FRCP 26(b)(3) to materials prepared in anticipation of litigation or for trial. Most courts add that the primary purpose of preparing the documents must have been to assist in such litigation. Thus, documents prepared for: Ordinary business purposes (e.g., a routine accident report),

Public regulatory requirements (e.g., statutorily- required report to police of automobile accidents involving injuries), or

Other non-litigation purposes (e.g., self-evaluation) fall outside the Rule.

Documents and Tangible Things: SCOTUS emphasized in Hickman that although the written witness statements and the attorneys memoranda were not discoverable on a bare demand, the discoverer was free to obtain the facts gleaned by discovery. The qualified immunity for work product does not protect against discovery of facts which may be construed as intangible things contained in the work product, including the identity of fact witnesses or the existence of the protected documents and things. However, federal courts have ruled that the discoveree may not be compelled to reveal facts to the extent that he is essentially recreating the protected document for the discoverer.

Although witness statements qualify as work product, FRCP 26(b)(3) expressly provides that a party or witness may on demand obtain a copy of his own substantially verbatim statement concerning the subject matter of the action.

Partys Representative: As used in FRCP 26(b)(3), representative includes a partys attorney, consultant, surety, indemnitor, insurer, or agent.

Undue Hardship: Hickman demonstrates that the undue hardship requirement may be satisfied when important facts are exclusively in the control of the discoveree such that the party-seeking discovery has no other reasonable access to the information. For example, undue hardship may exist where: A witnesss death, moved beyond the reach of compulsory process, lost his memory, deviated from his prior testimony or refused to cooperate; or

Evidence that has physically disappeared or been altered is reflected in work product, such as photographs of skid marks or conditions at the scene of an accident.

Opinion Work Product FRCP 26(b)(3) provides what appears to be an absolute immunity for opinion work product, defined as: Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Experts: FRCP 26 differentiates between experts expected to testify at trial (testifying experts) and those merely retained or specially employed in anticipation of trial who are not, however, expected to testify (non-testifying experts). FRCP 26(a)(2) requires disclosure of the identity and expected testimony of the testifying experts and FRCP 26(b)(4)(A) permits their depositions.

FRCP 26(b)(4) conditionally protects the non-testifying experts from discovery absent a special showing.

Excluded from the Rules protection is any expert who acquires his information directly as either a participant or observer about the transactions or occurrences underlying the lawsuit. In such circumstances, the expert is in fact an ordinary fact witness. Example: a police officer who responds to the accident scene, a doctor who attends in the emergency room, a mechanic who services the car whose brakes failed.

Mechanics of Discovery: Mandatory Discovery Conference and Discovery Plans: FRCP 26(f) requires parties to a lawsuit to confer as soon as practicable to discuss the case and possibilities for settlement, to arrange for required disclosures, and to develop a discovery plan incorporating these and other agreements for subsequent discovery.

FRCP 26(d) precludes discovery prior to such conference.

Required Disclosures FRCP 26(a) mandates three types of discovery that must be automatically produced regardless of discovery request: Initial disclosures of basic information; Disclosures of expert testimony; and Pretrial disclosures of trial evidence.

A party who without substantial justification fails to disclose material subject to required disclosure is precluded under FRCP 37(c)(1) from introducing the material at trial. Initial Disclosures: Basic information covered by FRCP 26(a)(1) includes: The identity of possible fact witnesses that may be called at trial;

Identification of documents and other tangible items in the possession, custody or control of a party, that the disclosing party may use to support its claim or defenses,

Computation of damages claimed, making available for inspection and copying evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered.

Insurance policies that may be used to satisfy part or all of a judgment.

Excluded from FRCP 26(a)(1) are: Witnesses and documents that will either be used solely for impeachment or will not be used at trial.

FRCP 26(a)(3): Pretrial Disclosures In addition to the required disclosure of expert witness testimony, the parties must exchange lists of trial witnesses and trial exhibits at least 30 days before trial.

Supplementation of Discovery: Under FRCP 26(c) and FRCP 26(e), a party must ensure the continued accuracy of the following types of discovery throughout the lawsuit: Automatic discovery required by FRCP 26(a); Disclosures made by expert witnesses that are to testify at trial; and Responses to an interrogatory, request for production, or request for admission.

If such discovery becomes incomplete or inaccurate, the party or his attorney must provide additional or corrective information to the opponent, if not already known by the opponent. A common sanction for breach of the duty to supplement is exclusion at trial of evidence withheld by the discoveree. This sanction is inappropriate, however, if a continuance and opportunity for mid-trial discovery can enable the discoverer to overcome his surprise and prepare effective cross-examination and rebuttal.

Depositions: Procedure For Taking: To depose a party or non-party witness, FRCP 30 requires: Reasonable written notice to the deponent and all parties to the action of the time and place of the deposition and identity of the deponent. A party must comply with the notice or else seek a protective order because, by the initial service of process on him, he is already under the personal jurisdiction of the court. Thus, no subpoena is required to compel the attendance of a party-deponent but may be used to compel an uncooperative non-party deponent.

If documents to be used in conjunction with the deposition are sought, the deposing party must attach to the deposition notice: A FRCP 34 request for production of documents for a party-deponent

A subpoena duces tecum for a non-party. Under FRCP 30(b)(6), a party may name as a deponent in his notice and subpoena a corporation, agency, partnership or other legal entity and describe the matters on which examination is requested. The entity must then designate one or more officers, directors, managing agents or other persons with relevant knowledge to testify on its behalf.

Use of Depositions at Trial: Under FRCP 32(a) any or all of a deposition may be used at trial, as if the witness were then present and testifying against any party who had notice of the deposition and a reasonable opportunity to obtain counsel or to move for a protective order. FRCP 32(a) permits the use of deposition testimony to impeach or contradict the deponent as a witness, or as an admission of an adverse party or officer, director, managing agent or designated deponent of an adverse party. In addition, FRCP 32(a) permits the use of deposition testimony at trial when the deponent is unavailable because of death, illness, age, imprisonment or is beyond the reach of process. However, FRCP 32 only overcomes the initial hearsay hurdle to the use of a deposition, which must otherwise be admissible under the rules of evidence.

Interrogatories Interrogatories: written questions directed to a party, who must answer them in writing and under oath, or object with particularity. Interrogatories target not just what the discoveree knows, but also what is reasonably obtainable by the discoveree, the collective knowledge of the recipient. A party is charged with knowledge of what his agents know, or what is in records available to him, or even, for purposes of FRCP 33, what others have told him on which he intends to rely in his suit.

FRCP 33(a) limits the number of questions (taking into account discrete subparts of questions) that can be posed to another party to 25, unless otherwise stipulated to by the parties or ordered by the court.

Production and Entry Requests: FRCP 34(a) authorizes the discoverer to request that a party produce and permit: Inspection and copying of documents; Copying, testing or sampling of things; or Entry upon land.

A FRCP 34 request must designate the documents, things or land with reasonable particularity and specify the time, place and manner of production or entry.

A FRCP 34 production request embraces not only that which is in the possession of the discoveree but also documents and property within her custody or control.

Physical and Mental Examinations: When the physical or mental condition of a party (or person in the custody or legal control of a party) is in controversy, a court may on motion and for good cause shown order the party or person to undergo a physical or mental examination under FRCP 35. FRCP 35(b) establishes a rule of reciprocity for the exchange of examination reports. The examinee is entitled to the report of the examination upon request.

In exchange, the examinee must produce any prior reports of examinations of the same condition, and waives any privilege he has regarding the testimony of anyone who has or will examine him concerning that condition.

Requests for Admissions: FRCP 36 provides a mechanism by which a party may request his adversary to admit the truth of any matters within the scope of discovery. An admission obtained under FRCP 36 conclusively establishes such matter and is binding at trial.

Admissions may be withdrawn or amended with leave of court pursuant to FRCP 36(b) if it will subserve the presentation of the merits and the party who requested the admission is unable to show prejudice from the amendment.

If a party on whom a request for admissions is served cannot admit to the truth of the matter asserted therein, the party can alternatively: Deny the truth of a requested admission;

Object on the ground that the request exceeds the permissible scope of discovery;

Seek a protective order for any of the reasons listed in FRCP 26(c);

Admit part and deny the balance;

Qualify his/her admissions and denials as necessary; or

State that after reasonable inquiry the information available to him is insufficient to enable him to admit or deny.

Preventing Abuse of Discovery: Certification Requirements: FRCP 26(g) imposes two different kinds of certification requirements on discovery initiatives. It requires an attorney or unrepresented party to certify to knowledge, information or belief, formed after reasonable inquiry, that a disclosure under FRCP 26(a)(1) or FRCP 26(a)(3) is complete and correct as of the time it is made.

In addition, FRCP 26(g) imposes a certification requirement for discovery requests, responses and objections paralleling that of FRCP 11. By signing such a request or response, the attorney certifies that the discovery request is not predicated on an improper motive such as harassment or delay, and is not disproportionate to the needs of the case.

Protective Orders: A person served with a discovery request may seek a protective order against such request if it may cause annoyance, embarrassment, oppression, or undue burden or expense.

Discovery may be found unduly burdensome based on the location or condition of the discoveree, and may be unduly invasive when it probes matter that, though unprivileged, is confidential.

In order to cure a burdensome discovery request without the court having to wholly deny it, FRCP 26(c) authorizes protective orders that accomplish the following goals: Restrict the time, place, method or scope of discovery; Require that discovery be sealed and only opened by court order; Limit the disclosure of trade secrets and other business information.

Sanctions for Discovery Abuses: Under FRCP 37, no party may move for an order, compelling discovery or for sanctions without certifying that it has tried in good faith to resolve the discovery dispute with other parties without court action. FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel discovery or equivalent discovery order. FRCP 26(g), FRCP 37(c) and FRCP 37(d), however, permit the imposition of sanctions without an intervening discovery order in some circumstances.

The discoverer may move under FRCP 37(a) for an order, compelling discovery either when the discoveree objects to discovery or responds evasively or incompletely. If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the movant attorneys fees and other expenses incurred in making the motion unless it finds that opposition to the motion was substantially justified. If the motion is denied, the discoveree has a similar opportunity for reimbursement and the court may issue a protective order in his favor.

If a party fails to disclose information required to be disclosed by FRCP 26(a), FRCP 37(c) precludes that party from using the information as evidence at trial. Furthermore, FRCP 26(g) requires sanctions against an attorney or party for violation of its certification requirement. Because most violations of the discovery rules can also be construed as violations of the certification requirement, FRCP 26(g) may encourage federal courts to impose discovery sanctions more often without an intervening order compelling discovery.

FRCP 37(b) sets forth a range of sanctions by authorizing the court to: Award discovery expenses against the violator.

Deem established facts that were the object of discovery.

Exclude evidence.

Strike all or part of the pleadings.

Hold the violator of a discovery order (other than one for physical or mental exam)in contempt.

Dismiss the action.

Render judgment by default.

DISCOVERYOrder of Discovery:1. Interrogatories2. Request for production of documents3. Depositions

Timeline of a Case1. Complaint2. 12(b) motions3. Answer4. Discovery

Purposes of Discovery Ascertain/narrow/define the issues in the case Preserve information for trial Find information that will develop/define testimony for trial

Discovery Devices Mandatory Disclosure Rule 26(a) Depositions Rule 30 & 31 Interrogatories Rule 33 Request for Production of Documents/Things Rule 34 Request for Physical or Medical Exam Rule 35 Request for Admission Rule 36 Deposing Witnesses in Another Jurisdiction Rule 45

Discovery Sequence Mandatory Disclosures Interrogatories Request for Production Depositions Admissions

Rule 26(a): Required Disclosures Components Names of experts expected to testify Statement of all opinions the witness will express Data and other information considered by the witness Exhibits to be used by the expert List of all other cases during the previous 4 years where the witness testified Compensation to be paid for study and testimony

Requirements Must be disclosed at least 90 days before trial Rebuttals must be made within 30 days of the other sides disclosure

Major Discovery Tools & Rules Depositions (FRCP 30 & FRCP 31) FRCP 30: Oral Depositions; FRCP 31: Written Depositions Taken/signed under oath Can depose parties or non parties Non parties must be subpoenaed; parties just need notice

Interrogatories (FRCP 33) Written questions answered in writing under oath Can only be sent to parties, not non-parties 30 days to answer Good for background information

Request to Produce (FRCP 34) Asking to produce documents or tangible things Can be used to get information from non-parties or parties Non-parties must be subpoenaed

Medical Exams (FRCP 35) Requires a court order Can be issued for a party, or someone who is in that partys custody/control

Request for Admission (FRCP 36) Can only be sent to parties, not non-parties Can force the other person to admit or deny any discoverable matter If the party doesnt deny within 30 days, the fact is deemed admitted

RULE 26: GENERAL PROVISIONS GOVERNING DISCOVERY

a) Required Disclosures1. Initial disclosuresA. Without awaiting a discovery request, the parties must provide:i. Name, address, phone number for everyone likely to have discoverable information that the party may use to support its claims/defensesii. A copy or description and location of all documents, electronic info and tangible things that the party may use to support its claims/defensesiii. A computation of damages (and must make available all documents used to make the computation)iv. Any insurance agreement

B. Proceedings exempt from initial disclosure:i. Action for review on an administrative recordii. Forfeiture action in rem arising from a federal statuteiii. Petition for habeas corpus or proceeding to challenge criminal convictioniv. Action brought without an attorney by a person in custodyv. Action to enforce/quash an administrative summonsvi. Action by the US to recover benefits paymentsvii. Action by the US to college on a student loanviii. Proceeding ancillary to a proceeding in another courtix. Action to enforce an arbitration award

C. Time for initial disclosures: Party must make disclosures within 14 days after the Rule 26(f) conference, unless a different time is stipulated or if a party objects.

D. Time for initial disclosures for parties joined later: Must make disclosures within 30 days of being served or joined, unless a different time is stipulated.

E. Basis for initial disclosure; unacceptable excuses: Initial disclosures must be based on information reasonably available; not excused because it hasnt fully investigated the case or because the other party has not yet made disclosures.

2. Disclosure of expert testimonyA. A party must disclose the identity of any expert witness it may use at trial.

B. If the expert was specially retained to provide testimony, the disclosure must be accompanied by a written report containing:i. All opinions the witness will express and the basis/reasons for themii. The facts or data considered when forming the opinioniii. Exhibits that will be used to summarize the opinionsiv. Qualifications, including publications from last 10 yearsv. List of other cases in which the witness testified as an expertvi. Compensation for the study/testimony

C. If the witness is not required to provide a report, disclosure must state:i. Subject matter on which the witness will present evidence.ii. Summary of facts and opinions the witness will testify to.

D. Time to disclose expert testimony, unless stipulated:i. At least 90 days before trial dateii. If the evidence is intended solely to contradict other partys evidence, within 30 days of the other partys disclosure.

E. Supplementing the disclosure: Parties must supplement in accordance with 26(e).

3. Pretrial DisclosuresA. Party must provide the following information about the evidence theyll present:i. Name, address and phone number of all witnessesii. Which witnesses will give testimony by deposition, and a deposition transcriptiii. Identification of each document and exhibit; summary of other evidence

B. Time for pretrial disclosures, Objections: Disclosures must be made at least 30 days before trial. Objections must be made within 14 days of disclosure. Objections not made are waived

4. Form of disclosures: Must be in writing, signed and served

b) Discovery Scope and Limits1. Parties may obtain discovery regarding non-privileged matter that is relevant to any partys claim or defense, including the existence and location of documents/things and the identity and location of people who may have relevant information. The court may order discovery of any relevant matter for good cause. Relevant information need not be admissible at trial.

2. Limitations:A. The court can alter these limits under Rule 30 or 36

B. Discovery is not necessary for electronic information that is not reasonably accessible because of undue burden/cost. Burden is on the party to prove undue burden. Court can still order discovery if the requesting party shows good cause

C. The court must limit discovery if...i. It is unreasonably cumulative or duplicative or if it can be obtained from a more convenient/less expensive sourceii. The party seeking it had ample opportunity to obtain the information by discovery in the actioniii. The burden or expense outweighs the likely benefit (considering needs to the case, amount in controversy, parties resources, important of issues, importance of discovery in resolving issues)

3. Trial Prep MaterialsA. Documents and Tangible Things: Parties cant discover documents prepared in anticipation of litigation by the other party or his representative, UNLESS...i. The materials are otherwise discoverable under 26(b)(1)ii. The party has substantial need for the materials and cant get them by other means without undue hardship

B. Protection against disclosure: If the court orders discovery, it must protect against disclosure of mental impressions, conclusions, opinions or legal theories of a partys attorney concerning the litigation

C. A party may obtain the other partys own previous statement about the actioni. A previous statement is either a signed, written statement, ORii. A recording or transcription that recites verbatim an oral statement

4. Trial Prep: ExpertsA. A party can depose any expert whose opinions may be presented at trial; if a report is required, the deposition can only be conducted after the report is provided

B. Drafts of reports or disclosures are protected

C. Communications between parties attorneys and witnesses are protected, UNLESS the communication...i. Relates to the experts compensationii. Identifies facts or data that the attorney provided and the expert considerediii. Identifies assumptions that the attorney provided and the expert relied on

D. A party may not discover facts known or opinions held by an expert who is not expected to be called as a witness, UNLESSi. As provided in Rule 35(b)ii. There are exceptional circumstances making it impracticable to find out the information by other means

E. Payment: Unless injustice would result, parties seeking discovery must:i. Pay the expert a reasonable fee for time spent responding to discoveryii. Pay the other part a fair portion of the expenses they incurred in obtaining the experts opinion

5. Claiming Privilege/Protecting Trial Prep MaterialsA. When a party withholds information by claiming privilege, it must...i. Expressly make the claimii. Describe the nature of the materials not disclosed, in a way that allows the other party to assess the claim of privilege

B. Information Produced: If information already produced is subject to a claim of privilege, the party making the claim can notify the other parties, and after notification the other parties must promptly return or destroy the materials

c) Protective Orders1. Parties from whom discovery is sought can move for a protective order in the court where the action is pending (or in the court where the deposition will be taken); motion must include a certification that the party has tried to resolve the dispute without court action; court can then issue an order...A. Forbidding disclosureB. Specifying terms for the disclosureC. Prescribing a different discovery methodD. Limiting the scope of discovery to certain mattersE. Designating people who may be present while discovery is conductedF. Requiring a deposition to be sealedG. Requiring that a trade secret not be revealedH. Requiring that parties file documents in sealed envelopes

2. If a motion for a protective order is denied, the court may order that discovery be provided

d) Timing and sequence of discovery1. A party may not seek discovery before the parties have conferred, expect in a proceeding exempted from initial disclosure or when authorized by a court order

2. Unless the court orders otherwise...A. Methods of discovery may be used in any sequenceB. Discovery by one party does not require any other party to delay its discovery

e) Supplementing Disclosures and Responses1. A party who has made a disclosure must supplement/correct its response if:A. The party learns that the disclosure is incomplete or incorrect ORB. As ordered by the court

2. Expert witnesses: If an experts report has been disclosed the party must supplement the information in the report and given in the deposition as necessary

f) Conferences/Planning for Discovery1. The parties must confer as soon as practicable, at least 21 days before a scheduling conference is held or a scheduling order is due2. Conference Content: The parties should consider the nature and basis of their claims, the possibility of settlement, necessary disclosures, and a discovery plan. Attorneys are jointly responsible for arranging the conference, attempting to agree on the discovery plan, and submitting a report outlining the plan to the court within 14 days of the conference

3. Discovery Plan: Must state the parties views and proposals on...A. What changes should be made in the timing or requirement for initial disclosuresB. The subjects on which discovery may be needed and when it should be completedC. Issues about disclosure of electronic informationD. Issues about claims of privilege; agreement on a procedure to assert claimsE. Changes to be made to the limitations on discovery, or other limits to imposeF. Other orders the court should use under 26(c) or 16(b)(c)

4. Expedited schedule: A court may...A. Require the parties conference to occur less than 21 days before the scheduling conference is heldB. Require the written report outlining the discovery plan to be filed less than 14 days after the conference, or excuse the parties from writing the report

g) Signing Disclosures and Discovery Requests1. Signature Required/Effect of Signature: Every disclosure and discovery request, response or objection must be signed by at least one attorney and must include the signers address, email and phone number. Signature means...A. The disclosure is complete and correctB. The discovery request/response is...i. Consistent with the Rules and warranted by law/not frivolousii. Not meant to harass, cause unnecessary delay or increase costsiii. Not unreasonable or unduly burdensome/expensive

2. Failure to sign: The court must strike the material unless a signature is provided promptly

3. Sanctions: The court may impose an appropriate sanction for a violation of this rule, including paying expenses and attorneys fees causes by the violation

Admissibility of Discovery Parties may obtain discovery on any non-protected matter Relevant information need not be admissible at trial if the information could reasonably lead to the discovery of admissible information

When discovery is NOT allowed FRCP 26(b)(2)(C) The information could be obtained from a more convenient source The information would be duplicative The party has had ample opportunity to obtain the information The burden or expense outweighs the likely benefit, based on... The amount in controversy The importance of issues at stake in the actions The importance of discovery to the issues

Protective Orders/Preventing Discovery FRCP 26(c) If a party objects to discovery, he can object and not respond or file for a protective order; the other side may then file a motion to compel (FRCP 37) Motion to compel cannot be filed until after the party has attempted to resolve the dispute with the other side Judges hate discovery disputes, so they must be serious to bring to the court

Courts options Prevent discovery Say discovery must be produced at a certain time/place Limit scope of discovery/forbid inquiry into certain matters

Burden is on the resisting party to prove why discovery is improper

Electronic information is discoverable, but there is some protection if the information is mistakenly disclosed or destroyed

Spoliation: The destruction or material alteration of evidence, or the failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigation. Sanctions are at the discretion of the judge and decided on a case-by-case basis Duty to Preserve Evidence: Arises when a party reasonably should know that evidence is relevant to existing litigation OR when a party reasonably should know that evidence may be relevant to anticipated litigation. Adverse Inference Instruction: Jury instructed that it may infer that the evidence was destroyed out of a realization that it was unfavorable to the spoliating party. (Extreme)

Counsels role in preserving discovery Must ensure the client complies with obligations to preserve documents Must inform the client what must be preserved and how to preserve it Must ensure the client identifies and makes available relevant information Counsel has a continuing duty to ensure preservation and production Duty to locate relevant information must talk to client to find out where records exist

When a party reasonably anticipates litigation, it must suspend the destruction of documents... Counsel must oversee compliance with this hold

International Discovery If youre trying to get discovery from parties who are not subject to US jurisdiction, you must operate under the Hague Evidence Convention If documents or witnesses abroad are subject to control of parties within the US, you can follow the Federal Rules of Civil Procedure US courts may order the production of documents or witnesses for use in cases abroad

Courts are generally unsympathetic to adversarial lawyers; dont take too restrictive an approach when disclosing documents... if in doubt, disclose it

Depositions: FRCP 28, FRCP 30, FRCP 31, FRCP 32

Timing: Depositions should not be taken before substantial discovery has been conducted because you need documents to control witnesses/tie down the facts

Purpose: A discovery deposition is devised to find of ALL information the opposing side knows about the case or the other sides case/elicit all the information that opponents have

Deponents: A non-party must be subpoenaed for a deposition under Rule 45

General Limitations You may object to a question, but the witness still has to answer You cant use objections to remind witness about what to say Maximum time = 7 hours long, one day (unless otherwise stipulated) Total number of depositions may not exceed 10 No person may be deposed a second time without permission of the court or the other side

Before whom may a deposition be taken? (FRCP 28) Someone authorized to administer an oath Court reporters, etc.

Deposition by Written Questions (FRCP 31) Lawyer writes down questions and sends them to court reporter presiding at the deposition, who asks the questions and records the witnesses answers

How can depositions be used in court proceedings? (FRCP 32) Depositions may always be used to impeach someones testimony May be used AS testimony if... The witness is unavailable at trial The witness is a private person and the deposition was taken outside the subpoena power of the district court (person cant be forced to come to trial)

Deposition Strategy Pin down answers to everything that may come up at trial Use the deposition to impeach the witness Witness has a right to read, sign and verify transcripts, but often this right is waived by counsel... having a deponent sign the transcript can help impeach them Its best to get the witness in a conversational mode Attorneys must remember to follow up their questions Use the deposition to determine whether discovery is completeImpeachment Attacks the witness credibility by showing: Witness had lied on previous occasions Witness had a different story back then Third party depositions may be used by any party for the purpose of contradicting or impeaching testimony

RULE 30: DEPOSITIONS BY ORAL EXAMINATION

a) When a deposition may be taken1. Without leave: A party may depose any person without leave of court; deponents attendance may be compelled by subpoena2. With leave: A party must obtain leave of court IF:A. The parties have not stipulated to the deposition AND...i. The deposition would result in more than 10 depositions being takenii. The deponent has already been deposed in the caseiii. The party seeks to take the deposition before the time specified in 26(d), unless the party certified that the deponent is expected to leave the countryiv. The deponent is in prison

b) Notice of the deposition; other formal requirements1. Notice: A party who wants to depose a person must give reasonable written notice to every other party; notice must state the time and place of the deposition and deponents name and address; if name not known then a description is required

2. Producing documents: Materials designated for production in a subpoena must be listed in the notice

3. Method of recordingA. The notice must state the method for recording (may be audio, video, or stenographic); party giving notice bears the recording costsB. Any party may designate another method for recording the testimony in addition to the one originally specified; that party bears the expense

4. By remote means: Parties can stipulate that a deposition may be taken by telephone, etc.

5. Officers dutiesA. Officer must begin the deposition with an on-the-record statement including:i. Officers name and business addressii. Date, time and place of depositioniii. Deponents nameiv. Officers administration of the oathv. Identity of all people present

B. Parties appearance and demeanor must not be distorted through recording

C. After the deposition: Officer must state on the record that the deposition is complete

6. Notice or subpoena directed to an organization: A party may name as the deponent a corporation, governmental agency, etc.; the named organization must then designate one or more officers to testify on its behalf

c) Examination and cross-examinations, objections, written questions1. Examination and cross-examination of a deponent proceed as they would at trial

2. Objections must be noted on the record, but the examination proceeds. An attorney may instruct a deponent not to answer only when necessary to preserve a privilege, enforce a limitation ordered by the court, or present a motion under Rule 30(d)(3)

3. A party may serve written questions in a sealed envelope to the party noticing the deposition, who must then deliver them to the officer; officer must ask the deponents those questions and record the responses verbatim

d) Duration, sanctions, motion to terminate or limit1. Duration: A deposition is limited to 1 day of 7 hours. Court must allow additional time if needed to fairly examine the deponent, or if circumstances impede the examination

2. Sanction: The court may impose sanctions on anyone who impedes or delays examination

3. Motion to terminate or limitA. At any time during a deposition, a deponent may move to terminate or limit it on the grounds that it is being conducted in bad faith; deposition may be suspended while waiting for an orderB. If terminated, the deposition may be resumed only by order of the courtC. Award of expenses

e) Review and changes by witnesses1. On request, the deponent must be allowed 30 days after being notified that the transcript is available to...A. Review the transcript or recordingB. Sign a statement listing the changes and the reasons for making them

2. The officer must note in the certificate whether a review was requested, and must attach any changes the deponent makes

f) Certification and delivery; exhibits; copies of the transcript or recording; filing1. Certification and delivery: The officer must certify in writing that the witness was duly sworn and the deposition is accurate. The officer must seal the deposition in an envelope and promptly send it to the attorney who arranged for the recording

2. Documents and tangible things:A. Any party may inspect and copy documents and tangible things produced for inspection during a deposition. If the person who produced them wants to keep the originals, they may...i. Offer copies to be marked, attached to the deposition and used as originals after giving parties an opportunity to compare the copies to the originalii. Give parties the opportunity to inspect and copy originalsB. Any part may move for an order that the originals be attached to the deposition pending final disposition of the case

3. Copies of the transcript or recording: The officer must retain a copy of the deposition transcript, and must furnish a copy to any party or deponent

4. Any party who files the deposition must promptly notify all other parties of the filing

g) Failure to attend: A party who attends a deposition may recover expenses, including attorneys fees, if the noticing party failed to...1. Attend and proceed with the deposition2. Serve a subpoena on a nonparty deponent, who subsequently did not attend

Interrogatories, Records, Admissions

Interrogatories (FRCP 33) Written questions that require a written response under oath Can only be addressed to parties of the case Maximum number = 25, including subparts

Ask questions about... Basic background information Information about damages

Admissibility Interrogatories are admissible as evidence at trial They are not binding, but persuasive Answers are permissible to the extent allowed by the Rules of Evidence

Objections Answering party must either object or answer The objection must be stated and signed by a lawyer If the party objects, the other party must file a motion to compel to get the answer

Strategy Lawyers draft interrogatory questions When answering, try to reveal as little as possible, but still required to provide facts that are reasonably available to you... even if this requires reviewing files, investigating, etc.

Scope FRCP 33(c) Interrogatories may relate to any matter which can be inquired into under Rule 26(b)(1) and the answers may be used to the extent permitted by the Rules of Evidence Opinions/Contention interrogatories are allowed Example: Explain why you think Ds behavior constitutes negligence... Specify each act or omission by D that you contend was reckless...

Option to Produce Business Documents FRCP 33(d) Allows a party, in response to an interrogatory question about the number of document possess/production of certain documents, to give the respondent the option of reviewing the documents himself ONLY IF the burden is substantially the same for each party Producing party must make sure that no records are protected/privileged

RULE 33: INTERROGATORIES

a) In general...1. No more than 25 interrogatories (including subparts) may be served on any other party

2. An interrogatory may relate to any matter within the scope of discovery [FRCP 26(b)]; okay to ask for an opinion or something that requires the application of law to fact; court may order that the interrogatory need not be answered until some later time

b) Answers and objections1. The interrogatories must be answered...A. By the party to whom they are directed, ORB. If the party is a corporation/government agency, by an officer/agent of the org

2. Responding party must serve its answers/objections within 30 days of being served

3. Each interrogatory must be answered separately and in full (unless objected to)

4. Grounds for objecting must be stated with specificity in a timely manner

5. The person giving the answers must sign them; attorney must sign objections

c) Interrogatory answers may be used to the extent allowed by the Rules of Evidence

d) Option to produce business records: If the answer to an interrogatory may be determined by examining business records, and the burden of deriving the answer would be the same for either party, the responding party may:1. Specify the records that must be reviewed specifically enough to allow the other party to locate and identify them as quickly as the responding party could, AND

2. Giving the other party a reasonable opportunity to examine, copy & compile the records

Request for Production of Documents (FRCP 34)

Purpose May request almost any type of document or tangible thing May also request the ability to visit and inspect property

Procedure For a party, must make a simple FRCP 34 request For a non-party, must use a subpoena under FRCP 45(a)(1)(C) Request must be specific enough that the other side wont exclude relevant material Number of requests is not limited

Responding party... Must respond unless they object Has 30 days to respond Must produce documents in the order in which they are ordinarily kept OR the manner in which they are described

FRCP 34: PRODUCING DOCUMENTS AND ESI OR ENTERING LAND FOR INSPECTION

a) A party may serve on any other party a request...1. To produce the following items for inspection/copying:A. Documents and electronic information in any medium, ORB. Tangible things, OR

2. To permit entry onto the other partys land to inspect/photograph/survey the property

b) Procedure:1. Contents of the request:A. Must describe with reasonable particularity each item to be inspectedB. Must specify a reasonable time, place and manner for the inspectionC. May specify the forms in which electronic information is to be produced

2. Responses and objections:A. Must respond within 30 days of being servedB. Must either give permission or offer an objection (with reasons) for each itemC. Any objection to part of a request must specify the part permit the restD. The response may object to the requested form of producing electronic information; the party then must state the form it would prefer E. Procedures for producing documents or electronic information:i. Must produce documents are they are kept in the usual course of business, or much organize and label them to correspond to categories in the requestii. If a request does not specify a form for producing ESI, it must be produced in the form in which it is usually kept, or in a reasonably usable formiii. A party need not produce the same ESI in more than one form

c) A nonparty may be compelled to produce documents and things or to permit inspection (FRCP 45)

Request for Physical or Medical Exams: FRCP 35

Requests can only be made to a party Requires a special application to the court and showing of good cause Must relate to something in controversy Must be relevant and material to the particular case The need for the exam must be greater than the burden Must have a court order

Court may order a party to submit to a physical or mental examination by a licensed examiner

FRCP 35: PHYSICAL AND MENTAL EXAMINATIONS

a) Order for an examination1. Court may order a party whose mental or physical condition (including blood type) is in controversy to submit to a physical or mental examination. (DOES NOT APPLY TO NONPARTIES)

2. Content of the OrderA. May be made only on motion for good cause and on notice to all parties and the person to be examinedB. Must specify the time, place, manner and scope of the exam, and who will perform it

b) Examiners Report1. The party who moved for the examination must, on request, deliver a copy of the examiners report to the opposing party

2. Report must be in writing and detail the examiners findings, diagnosis and test results

3. The party who moved for the examination is entitled to receive reports of all earlier or later examinations regarding the same condition

4. By obtaining the examiners report, the party waives any privilege concerning testimony about all examinations of the same condition

5. If the report is not provided, the court may exclude the examiners testimony at trial

6. All of the above applies even when the parties agree to an examination, unless the agreement states otherwise

Request for Admission: FRCP 36

Basic tool to narrow the dispute Not used to establish liability or important litigating facts Just an admission on a set of facts in advance of trial

If a party fails to answer or object within 30 days, the fact is deemed admitted Admissions are BINDI