Civ Pro Outline I

8/10/2019 Civ Pro Outline I

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Pleading

o FRCP 8(a)(1) - statement of subject matter jurisdiction

the complaint must contain a "short and plain statement of the grounds upon which the

court's jurisdictiondepends.

o FRCP 8(a)(2)- statement of a claim (legally and factually sufficient)

a complaint must include only "a short and plain statement of the claim showing that thepleader is entitled to relief"such a statement must simply "give the defendant fair

notice of what the plaintiff's claim is and the grounds upon which it rests"

Ex of pleading negligence - "D drove her car while intoxicated and on the wrongside of the highway, causing it to strike the car in which P was riding."

o FRCP 8(a)(3) - demand for judgment (award)

requires the plaintiff to make her "demand for judgment for the relief the pleader seeks"

o Gillispie v. Goodyear Service Store (extremely vague complaint)

Rule- When a complain alleges defendant is indebted to plaintiff in a certain amount and such

debt is due, but does not allege in what manner or for what cause defendant became indebtedto plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action.

o Dioguardi v. Durning(man representing himself doesn't know English very well.)

Rule - The federal rules of civil procedure only require that a complaint contain a short and

plain statement of the claim showing a right to relief.

o Bell atlantic corp v Twombly 2007 (large telephone co. Anti trust case. Narrowed to anti-trust)

Rule- In order for a complaint to survive dismissal on the pleadings, the complaint mustinclude enough facts to state a claim to relief that isplausibleon it's face. Forced morerestrictive pleading standards

o Garcia v. Hilton Hotels International, Inc.(was slandered as procuring rooms (pimping) in the

hotel for prostitution.)

Rule- A complaint viewed in its most favorable light should not be dismissed if the plaintiff attrial could make out a case entitling him to relief from the allegations of the complaint. Aconditional privilege isn't grounds for dismissal, while an absolute privilege is. When material

allegations are insufficient, a motion for a more definite statement is proper.

Pleading Special Matters

FRCP Rule 9(b) & 9(g) (fraud, mistake, special damages)

o

FRCP 9(b) - fraud and/or mistake

" in all averments of fraud or mistake, the circumstances constituting fraud or mistake

shall be stated with particularity"

o FRCP 9(g) - special damages

"when items of special damages are claimed, they shall be specifically stated.

Special damages are those that do not normally flow from an event.


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o

Denny v. Carey (bank fraud not rigorous only sufficient)

The Rule- the requirements of fed r civ p 9(b) is met when there is sufficient identification ofthe circumstances constituting the alleged fraud for the defendant to prepare an adequateanswer to the allegations

o

Tellabs inc v. makor issues and rights

The Rule- In deciding whether a securities fraud complaint alleges facts sufficient to establisha "strong inference"A plaintiff must show that fraud is a more likely explanation than anyother more innocent explanation.

Pleading damages

o Default case - damages can't exceed those in the complaint b/c that is what the defendant

consented to by defaulting (FRCP 54.C)

o Contested Case - if the defendant contests the amount than the award is up for grabs. (FRCP

54.C)

o

Ziervogel v. Royal packing co.(special damages - The injury victim was hurt when her car andthe owner's truck collided in an intersection. plaintiff blood psi)

The Rule- When items of special damageare claimed, they must be specifically pleaded

o Bail v. Cunninghame Brothers Inc.(Plaintiff, an employee of a subcontractor, was injured

when a scaffold collapsed.)

The Rule- In federal courts, a claimant may be awarded damages in excessof those demandedin his pleadings FRCP. 54

RESPONSES

FRCP 8(b) - provides 3 responsesAdmit allegations

Deny allegationsSay she lacks sufficient information on which to admit or deny (basically a

denial) One can deny in part (must be very specific)

One can deny in generalo

FRCP 8(d) - allegations not denied are admitted.

FRCP 12(a) - motion to answer claim

o

FRCP 12.C - motion for judgment on the pleadings

A party may move to get a judgment on the strength of the pleadings.

o FRCP 12(e) - motion for a more definite statement (must be used before answering)

Permits the D to bring a motion for more definite statement, which address acomplaint that is "so vague or ambiguous that a party cannot reasonably be

required to frame a responsive pleading."


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Conley v. gibson - 12(b)(6) should only be granted when " it appears beyonddoubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief"

o Ingraham v US (govt. malpractice suit seeking lowering of award to P)

Rule - a statutory cap on damages (if claimed as an affirmative defense) IS anaffirmative defense that is waived if not raised in the pleadings

Amendments

FRCP 15o

Both P and D have a right to amend

o 15(a) - P must amend before "responsive pleading" (D's answer). A motion is not

a pleading.

o 15(b) - D can amend within 20 days of serving their answer.o

Whenever a party amends, the opposing party must respond per FRCP 12

Rule 15(a)identifies three types of pretrial amendments:

(1) those allowed once as a matter of courseoften referred to as amendments as ofright;

(2) those made with the written consent of the other parties (permissive); and(3) those permitted by the court. (permissive)

Rule 15(b)- Variance - ruleaddresses the topic of so-called trial amendments. It providesguidance for situations when a party advances at triala claim or defense that was not included

in any pleading.

Used when a party seeks to introduce evidence of a claim or defense that she did not

plead.

Two scenarios can occur when using this rule

Opposing party agrees to allow the variance

The first two sentences apply in this scenarioOpposing party objects the variance

The last two sentences apply in this scenario.

Rule 15.C - relation back (amendments after statute of limitations has run) 15.C.A - relation back is permitted when "permitted by the law that provides the

statute of limitations (will say so in the law itself)

15.C.B- adding a new claim

Relation back is permitted if the amended pleading "arose out of the

conduct, transaction or occurrence set forth or attempted to be set forth inthe original pleading"

15.C.C - adding a new defendant. three requirements. Basicallyone class ofcases- one in which the plaintiffsued the wrong defendant originally, but theright defendant knew about the case and knew that, but for amistake, shewould have been named originally.


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The claim arises out of the same conduct, transaction, or occurrence asthat stated in the original complaint

Within 120 days after filing of the original complaint, the new defendanthas received such notice of the suit that she will not be prejudiced indefending (15.c.3.b)

Within the same period, the new defendant "knew or should have known

that, but for a mistake concerning the identity of the proper party, the actionwould have been brought [against her] (15.c.3.b)

Rule 15(d)authorizes supplemental pleadings by which a party may introduce events thatoccurred after the party's original pleading was filed.

Relation back doctrine - a plaintiff can usually amend her complaint after the statute oflimitations period otherwise would have run on the claim as long as the claim asserted in the

amended pleading arose out of the same conduct, transaction, or occurrenceset forth in theoriginal pleading.

Additional defendant - does not allow additional defendants after the statute oflimitations is up unless the new D is an entity related to the original defendant, plaintiff

has a strong interst in obtaining relief, and D would not suffer prejudice (can sue dietcoke for coke, but not pepsi)

Misnamed defendant - plaintiff should be allowed to fix the error.

Unnamed defendant - not allowed.

Equitable tolling-The principle that lawsuits for certain types of torts are not barred by the

statute of limitationsunless the plaintiff has failed to use due care to discover the harm done.To toll a statute of limitationsis to do something to delay it from taking effect, to

stop the clock from running.

o Beek v. Aquaslide n dive Corp.(slide not his, court let him amend so he wouldn't be liable)

Rule- a motion to amend an answer Shouldbe granted unless theopposing party can show prejudice.

o Moore v. moore case (Parent custody case, evidence implies info, allowed to amend)

o Mother moved to conform her pleadings to the evidence. She (mother) made 3

counterclaims: custody, maintenance, and child support. None of these were in theeither parties pleadings.

o 15.b.2.is the consent implied or expressed conforming to evidence pleading.

o Worthington v. Wilson(john doe case physical abuse police)

o Rule - an amended complaint among certain persons listed as unknown in the

original complaint Does notrelate back to the time of the original complaintsfiling

relation back amendment under Fed. R. Civ. P. 15(c)

Provisions to deter frivolous pleadings

FRCP Rule 11

o FRCP 11 Discretionary -


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At plaintiff's option:joinder of multiple defendants is at the option of theplaintiff.

o Aggregation where on P meets the amount

Multiple plaintiffs are permitted to aggregatetheir claims to meet the amount incontroversy requirement, if at least one plaintiff meets the amount.

o Tanbro fabrics corp v. beaunit mills inc

o Rule -

Even though there are separate relationships, contract or duties existingbetween parties in a multiple action, modernly, a plaintiff; to consolidate his

claims, need only show; 1. prima fasciae that one of the defendants caused the

injury; 2. the defendant's alternative liability arose from a common transaction;and 3. that there exist questions of law and fact common to all parties

o Ryder v. jefferson hotel co. (husband and wife sleeping inmotel room owner kicks them

out)

o Rule -

Where two or more persons suffer a tortious act arising out of the same

occurrence or transaction, each person's cause of action must be severed andtried separately, if the torts are of a personal nature.

o m.k. v. tenet (cia withheld information on certain plaintiffs harms etc.)

o Rule -

an alleged pattern of obstruction of counseljustifiesjoinder of plaintiff's

under federal rule 20(a)

o The Ellis Canning Company, Co v. International Harvester Company, Co (mechanic

set tractor on fire) FRCP 17(3)

o RULE- an insured who has been fully paid for his loss is not the real party in

interest and, hence, cannot maintain an action to recover the amount of such loss

for the use and benefit of the insurer

Compulsory Joinder

If there is a possibility of multiple lawsuits without the partythen the court will usually rulethat the party is indispensible.

Two categories both must be considered. LOOK AT BIG PICTURE DONT GET

CAUGHT IN "N" OR "I"

FRCP 19(a) Necessary parties

less vital group consists of parties who (1) must be joined if this can bedone; but (2) in whose absence because of jurisdictional problems the action will

nonetheless be permitted to go forward.A party is necessary if the party is not indispensible and either of the two

following tests are met Incomplete relief

In the persons absence, complete relief cannot be accorded among

those already parties OR


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Impaired interests

The absentee has an interest relating to the action, and trying the

case without the absentee will either impair the absentee's

interest or leave on of the people already parties subject to

multiple or inconsistent obligations.

FRCP 19(b) indispensible partiesThe vital group consists of parties who are so vital that if their joiner is

impossible for jurisdictional reasons, the whole action must be dropped. Factors:

When the court decides whether a party is indispensable, the

factors are

The extent of prejudice to the absentee, or to those

already parties

The possibility of framing the judgment so as to

mitigate such prejudice

The adequacy of a remedy that can be granted in theparty's absence

Whether the plaintiff will have an adequate remedy if

the action is dismissed.

Situations in which compulsory joinder issues commonly arise:

Joint obligors: joint promisors under a contract should be joined whenever

possibleTortfeasors: whenever possible a D should join all parties potentially liable,

although they are not considered necessary

Joint obliges: where two are jointly owed a duty under a contract, courts usuallyhold they are indispensable, and have dismissed if not joined

Co-owners of propertyShareholders: in a derivative suit by a shareholder, the corporation is usually

looked at as an indispensable part.

Bank of California nat. ass'n v superior court (estate was split up between many

people)

Rule -

Necessary parties are those who are so interested in the controversy thatthey should be normally joined in order to enable the court to do complete

justice, but whose interests are separable so they are not indispensable parties,

that is, parties without whom the court cannot proceed.

Provident tradesmen's bank and trust co. v. Patterson (multiple car crash estateto be split)

Rule -

In the absence of a party who cannot feasibly be joined, a court shouldnot dismiss the action if, in "equity and good conscience," it could proceed

without the party.


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Modern Rules-parties may be joined in one action if:a right to relief is asserted by or against them jointly, severally, or in the

alternative;

in the alternative:if a plaintiff is in doubt as to which of several D. isliable, a claim can be brought in the alternative to determine who is liable.

separately or jointly:each plaintiff is not required have an interest in

every cause of action, they can each seek sep. relief either separately orjointly.

the right to relief arises out of the same transaction;there is at least one question of law or fact common to all parties sought to be

joined.

o Modern Rules- persons are to be joined if feasible; Rule 19provides that any person with

interest in the subject matter shall be joined if:in his absence complete relief cannot be accorded those already parties;

his interest is such that to proceed without him would be substantial prejudice asa practical matter (impair his ability to protect his interest in later proceedings, or expose

the parties already before the court to the risk of double liability.) If the person to bejoined cannot be made a party, the court must determine in good faith whether the actionmust be dismissed.*

*if an absentee is seen as potentially indispensable, his non joinder orjoinder can be raised at any time, even at trial. Lack of or delay in this nonjoinder can be seen as grounds to dismiss (Provident Bank v. Trust Co.)

Counter Claim

o FRCP 13 authorizes a defending party in a suit to assert claims back against a party who has

claimed against him.

o 13(a) compulsory counterclaim

If the defending party's counterclaim arises from "TO", he must assert it or lose

it.

Any defending party, not just original defendant, can assert counterclaimsagainst a party who has claimed against him.

o 13(b) permissive counterclaim

One may assert counterclaims completely unrelated to the original claim. Wouldinvolve different events from the main claim.

Any defending party, not just original defendant, can assert counterclaims

against a party who has claimed against him.

o 13(g) cross-claim

a claim asserted by one party against a co-party (someone on the same side of the"V").

Must arise out of the same "TO"


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o LASA PER L'INDUSTRIA DEL MARMO SOCIETA PER AZIONI v. Alaxander

(MARBLWE CASE)

o RULE -

cross-claims, counterclaims, and third party complaints arising out ofthe same transaction or occurrence as the subject matter of the original complaint

MAYbe joined with the original complaint

o FRCP 18(a) combining claims - a party seeking relief from an opposing party may join with

his original claim any additional claims he has against that opposing party.

o Unlike 20(a), 18(a) requires NO "TO"

o This applies not only to the original plaintiff, but also to any party seeking relief against

another party, whether on acounterclaim, cross claim, or 3rd party claim.

o Four part testto determine whether claims arise out of the same transaction or occurrence for

the purpose of characterizing a counterclaim ascompulsory or permissive.

Are the issues of fact and law raised by the claim and counterclaim largely thesame?

Would res judicata bar a subsequent suit on defendant's claim absent thecompulsory counterclaim rule?

Will substantially the same evidence support or refute plaintiff's claim as well as

defendants counterclaim?Is there any logical relation between the claim and the counterclaim?

o Harris v Avery (stolen horse. Slander and false imprisonment)

Rule - A plaintiff may unite causes of action where they have arisen from thesame transactions connected with the same subject matter.

o M.K. v. Tenet (CIA case)

Rule - federal rule 18 permits joinder of all claims a party has against anopposing party

o US v. Heyward-Robinson co. (construction federal joinder, compulsory claims)

Rule- When a counterclaim is asserted on a contract in federal court, a claimbased on another contract can be joined, if there is a logical relationship between

the claims

Impleader must be if me, then them! and not NOT me, but them!

Only Based on indemnification

Impleading can only work against someone not a party. It brings in an entirely new party.

FRCP 14(a) - givesDEFENDANT limited right to bring into the suit new parties against whom shehas claims related to the main action. The original defendant becomes the 3rd party plainti ff .

FRCP 14(b) -plaintiff may implead when a counterclaim is filed against them. The Plaintiff may

implead a third person who is liable to him for any judgment on the counterclaim.


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o The impleaded party may be liable to the D for "all or part" of the plaintiff's claim against the

D.

the third party may plead any defensesagainst the pl. claims for relief, even ifsame as def. (4th and 5th sentences)

the court may grant a sep. trial on any sep. issues if needed to prevent prejudice

o The impleader claim is treated like an original suitfor pleading

The 3rd partyplaintiff must comply with pleading requirements (rule 8-11).The 3rd partyplaintiff must respond under rule 123rd partydefendant may also file counterclaims against 3rd party plaintiffand

may implead other parties

The plaintiff AND 3rd partydefendant can assert claims against each other ifthey arise out of the same "TO" (6th and 7th sentences)

o right to indemnity (cash causal connection) (A contractto compensate or reimburse a

person for possible losses of a particular type;)

impleader rules are confined to those situations in which the defending party has a right

to indemnity, in whole or in part, against the impleaded third party.EXAM TIP:most courts do not allow a plaintiff to implead a def. insurance

company, it is only the def. right to implead his own insurer.

No right to indemnification under state law

If the appropriate state doesn't recognize indemnity the FRCP doesn'tcreate that right.

Jeub v b/g foods, inc. (served bad ham at one of their restaurants, sued umbrella

corp.)

Rule - In a federal action, impleader is permitted of a party who is or may

be liable for indemnification to a party-defendant so long as the applicable

state substantive lawregarding indemnification is satisfied.

o Policy

Favoring impleaderThe efficiency of hearing the related claims togetherAvoidance of repeated suits or inconsistent judgments

Disfavoring impleader (courts may allow a separate trial)Delay in seeking it

Complication of the issues in the main action

Potential prejudice to the plaintiff from impleading a sympathetic 3rd party.

Too, Inc. v. Kohl's Department Sotres, Inc. (stealing clothing designs, mulitple parties)

o

Rule -Leave to entertain a proposed third-party claim should be granted, when after

considering the delay by the movant, the complication of trial, and the merits of the proposed

third-party complaint, the court concludes that the benefits of consolidation outweigh theprejudice to the plaintiff and third-party defendants.

Class Actions


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o such actions are allowed where considerations or necessity or convenience justify an action on

behalf of the group rather than multiple actions by or against the class members individually.

(on behalf of all members of a class)

o Fed Rule 23-provides that members of a class can sue or be sued with binding effect on the

class as a whole. (most states have adopted rule 23)

Fed. R. Civ. P. 23(a)states four threshold requirements applicable to all class actions: (1)numerosity, a class so large that joinder of all members is impracticable; (2) commonality, questionsof law or fact common to the class; (3) typicality named parties' claims or defenses are typical of theclass; and (4) adequacy of representation, representatives will fairly and adequately protect theinterests of the class.

Pre-reqs of Class Action suits:WORK ON THIS COME

NEXT OUTLINE SESSION 23A

Federal Claimo

In a class action only ONE plaintiffneed to have an injury that's over 75K.

23(A)(4)Fairly and adequately protect the class.Court will look at representative of class and the attorney to see if they can adequatly and

fairly protect the class.

Numerous parties-the class must be so numerous that joinder of all members individually isimpractical. (usually needs to be around 40 or 50 but based on courts discretion

Common question- the action must involve questions of law or fact common to the class

(commonality, rule 23(a)

Representatives claims typical (typicality)-the claims or defenses of the persons maintainingthe action on behalf of the class must be typical of those of the class generally (23(a)) because therepresentative acts on behalf of all claimants, the court needs to be assured that he or she will havethe same objectives as the members of the class and sufficient motivation to protect their interests

Adequacy of representation-the persons representing the claims of the class must be able toprotect the class interests, all members of the class (23(a)) need to make sure that there is no conflictof interest between representative and class

Numerous parties.- litigation is to be conducted by the persons whose rights are to involved asnamed parties: 1) no fixed minimum

Must look at the size of each members claim (the smaller the members claim, themore likely the class action to be allowed because they wouldn't contest it on their own)

The practical likelihood that individual suits will be brought (the lower thelikelihood, the more likely that class actions will be allowed)

The public importance of the right being enforced (the greater the publicimportant, the more likely the class action to be allowed)

The geographic location of the class members (the more difficult the location and

distance for class members to intervene, the more likely that a class action will beallowed)

Exam tip- if the question involves a small numbers of plaintiffs, and you must determine whetherthe court would allow a class action, a good rule of thumbis that the less likely it is that individuals


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would bring their own suits or intervene, because of small damages or distance, the more likely it isthat the court will allow a class action.

No fixed maximum- 1) class must be manageable 2) notice requirement, the larger the class themore difficult to notify all members, but if possible may be allowed.

Three categories of class action law suits

23(B)(1)(limited fund)- applies to situations similar to the circumstancesrequiring thejoinder of necessary parties under Rule 19

Test- a class action is allowedif individual actions by or against members of

the class would create a risk of either: (a) inconsistent decisions forcing anopponent of the class to observe incompatible standards of conduct(23(b)(1)(A); or (b) the impairment of the interests of the members of the class

who are not actually parties to the individual actions (23(b)(1)(B)).

EX of (B): if litigants are allowed to proceed individually, there is a riskthat those who sure first will deplete the fund and leave northing for the

latecomers.23(B)(2) - civil rights class action

A class action is allowed if "the party opposing the class has acted or refused to

act on grounds generally applicable to the class, thereby making appropriate

final injunctive relief ordeclaratory relief with respect to the class as a whole"If the suit Is for an injunction or declaration that would affect all class

members this is the right category.

The defendant's conduct need only be 'generally applicable' to the class;

there is no requirement that the conduct be damaging or offensive to everyclass member.

3.

23(B)(3) - most common type. Members claim they have been injured in the same way by

defendant. Two requirements

1.

Common questions: the court must find that the "questions of law or fact

commonto members of the classpredominateover any questions affecting only

individual members.2.

Superior methods:the court must also find that "a class action is superior to

other available methods"For deciding the controversy. In deciding 'superiority'the court will consider four factors:

a.

The interest of class members in individually controlling their separate

actions

b.

The presence of any suits that have already been commenced involving

class members (if there are too many it hurts the class action)

c.

The desirability of concentrating the litigation of claims in a particularforum

d.

Any difficulties likely to be encountered in the management of a class

action.

o Castano v. American Tobacco Co


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Rule -

Class actions may be certified under FRCP 23(b)(3) only if the

requirements of predominance and superiorityare met.

o Hansberry v. Lee (race covenant can't sell land to blacks not everyone was under that

covenant)

Rule -

There must be adequate representation of the members of a classaction or the judgment is not binding on the parties not adequatelyrepresented.

o Phillips Petroleum Co. v. Shutts (class action from peeps in all 50 states.)

Rule-

a state MAY exercise jurisdiction over a class action plaintiff evenif the plaintiff's contacts with the state would not confer jurisdiction over a

defendant

o Amchem Prods. v. Windsor (asbestos settlement class action)

Rule-

class certification MUST meet the requirement of FRCP 23, except

manageableness, even if certification is for settlement purposes only.

o Ortiz v. Fibreboard Corp (asbestos class action)

Rule -if class action is a 23(b)(1) claim, then the due process requirement

is heightened because there is no notice requirement.

Discovery

o privileged communication.N. A communication that does not have to be revealed during

discovery because it occurred in a special situation, such as information revealed to a doctor

by a patient or from one spouse to another.

o

FRCP 26(b)(1) sets the SCOPE of discovery

o FRCP 26(b)(2) limits discovery

Mandatory discovery

o Required Initial disclosure FRCP 26(a)(1)

All witnesses with discoverable information FRCP 26(a)(1)(A): first, each party must disclose the name, address, and phone number of

each individual likely to have discoverable information that the party

plans to use in the case

Documents FRCP 26(a)(1)(A):: Second, a party must furnish a copy, or else a descriptionby category and

location, of all documents and tangible things in that party's possession,

that the party plans to use in its case. Damages FRCP 26(a)(1)(d):

Computation of each category of damages claimed by disclosing party

Insurance:


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Copy of any insurance agreement.

o Required disclosures concerning expert witnesses

FRCP 26(a)(2): requires each party to disclose to each other party the identity of

anyone who may be used at trial to present expert testimony.

Depositions

o After the beginning of an action, any party may take the oral testimonyof any person

thought to have information within the scope of discovery. This is known as oral

deposition.

o Deponent must respondas to only herpresent knowledge or recollection. Much

different than interrogatories where they have to do some research with available info.

o Important random rules

FRCP 30(b)(1) - notice is required to be given to all parties with relevant info of

who when where the person is being deposed.

FRCP 30(a)(2)(B) - a person can be deposed only once unless court orders more

o Oral depositions

Usable against non-party Not only parties, but any non-party with relevant information, may be

deposed

Subpoena If a non-party / partyis to be deposed, then the discovering party can only

force the deponent to attend by issuing a subpoena. This subpoena must

require the deposition to be held no ore than100 milesfrom the placewhere the deponent resides, is employed, or regularly transacts business in

person

frcp 45(3)(a)(ii) If a partyis to be deposed, a subpoena is not used. Instead, non-

compliance with the notice can be followed up by a motion to compel

discoveryor to imposesanctionsunder frcp 37

If a nonpartythen you have to get a subpoena first before sanctions. If a plaintiff is summoned for a deposition they must go wherever the

defendant demands.

Limited to 10 Each side is limited to a total of ten depositions, unless the adversary

agrees to, or the court issues an order allowing more. Frcp 30(a)(2)(a).


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Method of recording The party ordering the deposition can arrange to have it recorded by

stenography (court reporter), by audio tape recorder, or by video

recorder. Frcp 30(b)(2)

Request to produce (FRCP 34)

The person seeking discovery will often also want documents held by thedeponent. If the deponent is a party, the discovering party may attach a

FRCP rule 34 request to produce to the notice of the party. But if the

deponent is a non-party the discovering party must use a subpoena ducestecum.

FRCP 30(b)(6) corp. assoc. notice.

An attorney may noticethe deposition of a corp. or assoc. requiring

the latter to produce the person or persons having knowledge of thesubject matter upon which the deposition is to be taken.

Depositions upon written questions

Any party may take the oral responses to written questions, from anyperson(party or nonparty) thought to have discoverable information. Frcp

31. this is called a "deposition on written questions" Distant non party witnesses

Depositions on written questions are mainly used for deposing

distant nonparty witnesses. Such witnesses cannot be served

with interrogatories (since these are limited to parties), and cantbe compelled to travel more than 100 miles from their home or

business.

Discovery prior to commencing a lawsuit-In re Ford (cops shot her father sheis looking to do a discovery process before file is claimed )

Rule -FRCP 27 (Depositions to Perpetuate Testimony) does not permit a

pre-complaint deposition without a showing that the deposition is necessaryfor perpetuating the witness's testimony (dying, senile etc).

Relevance discoveryKelly v. Nationwide Mut. Ins. Co (insurance company waslooking for specific information that could only be found with discovery)

Rule -

Interrogatories are proper that are relevant to an issue in the action,

seek unprivileged information and information that would also be

admissible as evidence, but do not seek discovery, the manner whereby theopponent's case is to be established, evidence that relates exclusively to his

case, nor what his witnesses will testify.

Privileged information-Marrese v. American Academy of OrthopaedicSurgeons (P wanted all the info of all applicants for the Dr. group)

Rule -

A motion to limit discovery under rule 26 should not be granted

where the party seeking discovery would incur hardship without thematerial sought, and the party against whom discovery is sought would


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suffer hardship if forced to produce the material sought, if the competing

interest can be served with minimal damage to either.

Protective order -FRCP 26.C -Seattle Times Co. v. Rhinehart, (newspaperwanted al the members and their contributions to print)

Rule -

A protective order in a discovery matter ordering a newspaper notto publish discovered information does not violate the first amendment

Mandatory discoveryCummings v. GMC (car co. had video evidence it didn't

give out in discovery request)

Rule - Federal rule 26, as amended in 2000, does not require disclosure of

relevant evidence that a party does not intend to useat trial.

Polycast technology corp. v. uniroyal inc. (co. didn't want their auditor to bedeposed)

Rule - A non-party witness should be ordered to be deposed if his

testimony is relevant and not duplicative of other witnesses' testimony.

Interrogatories to the parties

An interrogatory is set of written questions to be answered in writing within

30 days by the person to whom they are addressed. Interrogatories may beaddressed only to a party.

FRCP 33(a) Each party is limited to 25 interrogatory questions directed to any other

party, unless the parties stipulate otherwise or the court orders otherwise.Available information frcp 33(a)

A party served with interrogatories is obliged to respond by furnishing suchinformation as is available to the party. The party served therefore is

obliged to respond to the interrogatories not only by providing the

information it has, but also the information within its control or otherwiseobtainable by it.

FRCP 33(d) Business option: if the burden of finding the answer to the interrogatory

would be substantially the same for both parties, party B (instead of finding

the answer herself) can simply give party A access to the business records

so she can find the answer.

o Interrogatories-In re Auction Houses Antitrust Litig. (co. didn't think they had info

and an old employee with a golden paruchute did)

Rule - An international company should be compelled to answer interrogatories,

despite its claims that the requested information is outside its control, if thecompany still has plausible avenues for acquiring the requested information and


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if other typical factors favoring compelling discovery from an international

litigant are present.

o Interrogatories-In re Convergent Technologies Sec. Litigation (judge went through

list of interagatory and said what could and couldn't be asked)

Rule - The pretrial discovery process should be self executing and haveminimum judicial intervention.

Physical and Mental examinations

FRCP 35 (always requires a court order / party only)

o When the mental or physical condition of a party is in controversy, the court may order the

party to submit to aphysical or mental examinationby a suitably licensed or certifiedexaminer.

Motion and good cause Unlike all other forms of discovery, rule 35 operates only by court order. The

discovering party must make a motionupon notice to the party to be examined,and must show good causewhy the examination is needed (must be beyondrelevancy which is already established in FRCP rule 26.

Good cause balancing test= weighing the pain, danger, or intrusiveness ofthe examination against the need for, or usefulness of, the information to be

gained.

Controversy The physical or mental condition of the party must be in controversy. It is

not enough that the condition would be somehow relevant. A good cause for

the examination is needed.

3.

Reports from examiner are discoverable The actual medical reportproduced through a rule 35 examination is

discoverable(in contrast to the usual non discoverability of expert reports. FRCP 35(b)(1)Who may receive: a person examined (typically the

opposing party) may request, from the party causing the exam to be made, a

copy of the examiners written report.

FRCP (35(b)(2) Other examinations: once the party asks for and receivesthis report, then the other party is entitled to reports of any otherexaminations made at the request of the examinee for the same condition.

o Schlagenhauf v. Holder (important) (bus rear ended a trailer tractor everyone sued

everybody)

Rule -

a.

FRCP 35,the rule provides for physical and mental examinations ofparties, is applicable to defendants as well as plaintiffs

b. Under FRCP 35, although the person to be examined under the

rule must be a party to the action, he need not be an opposing

party vis a vis the movant.

c. Under FRCP 35, a person who moves for a mental or physical

examination of a party who has not asserted his mental or

physical condition either in support of or in defense of a claim,


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must affirmatively show the condition sought to be examined Is

really in controversy and that good cause exists for the particular

examination requested.

Requests for admission(admit or deny discoverable matter)

FRCP 36o

One party may serve upon another partya written request for the admission, for the

purposes of the pending action only, of the truth of any discoverable matters.

Coverage: the statements whose genuiness may be requested include statements

or opinions of fact, the application of law to the fact, and the genuine of any

documents Expenses for failure to admit: if a party fails to admit the truth of any matter

requested for admission under rule 36(a), and the party making the request

proves the truth of the matter at trial, the court may then require the party who

refused to admit to pay reasonable expenses sustained by the movant in provingthe matter (rule 37.C)

Affect at trial:if a party makes an admission under rule 36, the matter is

normally conclusively established at trial.

o Failing to respond: if a responding party fails to deny a request to admit, the matter is

deemed admitted.

Use of discovery results at trial

Request to produce

o

The admissibility of documents and reports that were obtained through a rule 334request to produce is determined without regard to the fact that these items wereobtained though discovery. These documents will thus be admissible unless their

contents constitute, prejudicial, hearsay, or other inadmissible material

Depositions :the admissibility of depositions is determined through a two-art test. Both

parts must be satisfied.

o Test 1

First, determine whether the deposition statement sought to be introduced wouldbe admissible if the deponent were giving live testimony. If not, the statement

is automatically inadmissible. (ex. Hearsay)

Test 2

Second, apply the four categories test. Since the use of a deposition statementrather than live testimony is itself a form of hearsay, the deposition statement

must fall within one of the four following categories, which are in effect

exceptions to the hearsay rule:

FRCP 32(a)(2) - Adverse party : the deposition of an adverse party, or

of a director or officer of an adverse corporateparty, may be admitted for

any purpose at all.


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FRCP 32(a)(1) - impeachment: the deposition of any witness, party ornon-party, may be used to impeach the witness' credibility.

Adverse witness' deposition for substantive purposes: a party may usea deposition of an adverse witness for substantivepurposes, if it conflicts

with that witness' trial testimony. (P says "light was green", D says "light

was red")FRCP 32(a)(4) - other circumstances" the deposition of any person(party or non party) can be used for any purpose if one of the following

conditions, all relating to the witness' unavailability exists; (1) the

deponent is dead; (2) the deponent is located 100 or more milesfrom thetrial; (3) the deponent is too illto testify; (4) the deponent is notobtainable by subpoenaor (5) there are exceptional circumstances that

make it desirable to dispense with the deponent's live testimony.

FRCP 32(a)(6) Partial offering: if only part of a deposition is offered intoevidence by one party, an adverseparty may introduce any other parts of the

deposition which in fairness ought to be considered with the party introduced.

(ex. One side reads only part of an answer, the other side may read the rest of theanswer)

Interrogatories: the interrogatory answer of a party can be used by an adverse

party for any purpose.

Not binding: the statements made in interrogatories, like statements made in

depositions, are not bindingupon the maker - he may contradict them in court.

Admissions: admissions obtained under the rule 36 conclusively establish the

matter admitted.

Physical and mental examinations: the results of physical and mental examinationsmade under rule 35 are almost always admissible at trial.

Battle v. Memorial Hosp (dr. testiomony not allowed, and Dr. was out of state.boy was hurt by hospital, mother sued everyone, hospital granted summary judgment)

Rule -

1.

A trial judge should admit a video deposition as evidence at trial if thewitness is unavailable and the parties objecting to the video all had the

same motive for questioning the witness during the deposition that they

have for questioning him at trial

2.

A trial court is well within its discretion to prohibit live testimony, in favorof testimony by video deposition, if the witness is unavailable and the

offering party's own conduct caused the other side to incur the expense of

the witnesses testimony by video deposition.

Trial preparation immunity *will be on test*


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o Definition- Certain immunity from discovery is given to the material prepared by

counsel for trail purposes, and to the opinions of experts that counsel has consulted

in trial preparation. This immunity is often referred to as work product immunityo

Govt. agencies - The work-product doctrine does applyin tax summons and other

administrative law proceedings.

o

Waived - If A told B the privileged information, and B is nota party to the case(friend, relative), then the immunity is waived.

o Qualified immunity: qualified immunity is given to documents preparedin

anticipation of litigation or for trial, by a party or that party's representative.

Representative defined: a party's representative include his attorney,consultant, insurance company, and anybody working for any of these people

(including client).

FRCP 26(b)(3) Hardship: the privilege is qualified rather than absolute. This

means that the other side might be able to get discovery of the materials, by only

by showing substantial need of the materials in preparation of the case and aninability to obtain the equivalent materials without undue hardship.

o Absolute immunity (Rule 26(b)(3)(b)): in addition to the qualified work product

immunity discussed above, there is also absolute immunity. Rule 26(b)(3)(b)provides that even where a party has substantial need for materials (in other words, the

showing for qualified immunity has been made), the court shall protect against

disclosure of the mental impression, conclusions, opinions, or legal theoriesof anattorney or other representative of a party concerning the litigation.

Attorney client privilege

ex. Oral materials per Upjohn case

o Hickman v. Taylor * big case*(tug boat wreck, survivors interviewed, P wanted all the

info provided by D's attorney)

Rule -

Material obtained by counsel in preparation for litigation is thework product of the lawyer, and while such material is not protected by the

attorney-client privilege, it is not discoverableon mere demand without a

showing of necessity or justification. FRCP 26(b)(3) is the rule created by the case (w/ exception of personal

thoughts not written down).

o Upjohn Co. v. United State (co. was bribing foreign officials for business. Co. started

in-hose interview w/transcripts, IRS wanted all that info)

Rule-

The attorney-client privilege extends to communications between a

corporations' attorneys and nonmanagerial corporate employeesFRCP 26(b)(3) applies to, and especially protects, notes of oral

statements by witnesses, and great need must be shown for their

disclosure.


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Discovery concerning experts

o Experts to be called at trial: where on side expects to call an expert at trial, the

other side get extensive discovery Identity: first, a party must automatically (without request) give

the other side a list identifying each expert who will be called attrial

Report: second, a party who intends to call an expert at trial must

have the expert prepare and sign a report containing, among

other things (1) the expert's opinions, and the basis for them

(2)the data considered by the expert (3) any exhibits to be used by

the expert at trial (4)the experts qualifications (5) her

compensation and (6) the names of all other cases in which she

testified as an expert in the preceding 4 years.

Deposition: the expert who will be called at trial must also be made

available for depositionby the other side. See FRCP 26(a)(2)(A),

26(a)(2)(b), and 26(b)(4)1. The protection afforded by Fed. R. Civ. P. 26(b)(3) (work

product) is subject to Fed. R. Civ. P. 26(b)(4), which

generally authorizes discovery of testifying expert witnesses.

Specifically, Fed. R. Civ. P. 26(b)(4) authorizes the

depositions of any person who has been identified as experts

whose opinions may be presented at trial.

o FRCP 26(b)(4)(B) Expert retained by counsel, but not to be called at trial:

where an expert have been retained by a party, but will not be called at trial,

discovery concerning that expert (her identity, knowledge and opinion may be

discovered only upon a showing of exceptional circumstances making itimpractical for the party seeking discovery to obtain the information by other

means.

3.Unretained experts not to be called at trial: where an expert is consultedby a

party, but not retained, and not to be called at trial, there is virtually no way the

other side can discover the identity or opinions of that expert.

4.Participants experts: a participant expert -- one who actually took part in the

transactions or occurrences that are part of the subject matter of the law suit -- is

treated like an ordinary witness. (ex. An arresting cop or pathologist --autopsy

guy) a. Expert is a party: similarly, a party who is herself an expert (ex. A

doctor who is a defendant in a malpractice suit) is treated like anordinary witness for discovery purposes, not like an expert.

5.FRCP 26((e)(2) Duty to amend information: For an expert whose reportmust bedisclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both toinformation included in the report and to information given during the expert's

deposition.


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FRCP 54(b) Partial summary judgment: summary judgment may be grantedwith respect to certain claims in a lawsuit even when it is not granted with respect to

all claims. This is called partial summary judgment.

a.

Example: Court may grant P partial summary judgment on liability, butwill take the case to trial for the issue of damages.

o

Lundeen v. Cordner (discovery information that the insurance money does go to thedecedents new family)

Rule - Where no genuine issue as to any material fact remains, the court maygrant summary judgment if the information presented would entitle one of the

parties to a directed verdict.