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Agenda for 12th Class• Admin

– Handouts– Name plates– Writing groups on web– Welcome to Shakay Amirkhanyan

• prospective student• Experts (continued)• Sanctions

– Phillips– A Civil Action

• Introduction to Summary Judgment

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Next Class• FRCP 56• Yeazell pp. 581-96• Questions to think about / writing assignment

– Yeazell pp. 581ff Qs 1, 2c– Briefly summarize Celotex Be sure to discuss what evidence each side

submitted to the court?  Why was plaintiff’s evidence not clearly sufficient to defeat defendant’s  summary judgment motion?  Why was defendant’s evidence possibly sufficient for its summary judgment to be granted?

– Yeazell pp. 588ff Qs 1c, 5– Briefly summarize Bias. Be sure to discuss what evidence each side

submitted to the court?  Why did the court grant summary judgment to the defendant?

– Yeazell p. 596 Q4– Questions on next page

• Optional Glannon Ch 23• A Civil Action

– Finish by M 2/24. Pay special attention to settlement and fees

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Summary Judgment Questions• In Celotex, what could the plaintiff’s lawyer have done during discovery to

have had a better chance of defeating defendant’s motion for summary judgment?

• In Celotex, what, if anything, could plaintiff’s lawyer do after the Supreme Court issued its opinion in order to win the case for plaintiff?

• In Bias,  is it possible that the plaintiff would have prevailed at trial?  How?  If your answer is “yes,” why wasn’t he able to defeat the summary judgment motion?

• If you were the plaintiff’s lawyer in Bias, what could you have done which might have helped you defeat summary judgment?

Last Class: Experts– Non-testifying experts hired in anticipation of litigation or in order to help

prepare for trial are generally shielded from discovery– 26(b)(4)(D) “Ordinarily, a party may not, by interrogatories or deposition,

discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”

– Exception for “exceptional circumstances”• Where other lawyer can’t now get equivalent information AND could not

reasonably have been expected to have gathered information earlier. Chiquita, Thompson

– Suppose plaintiff has lung cancer which he thinks might have been caused by exposure to asbestos. Plaintiff’s lawyer has a doctor extract 10 lung samples, which she then sends to 10 pathologists. 9 say the lung cancer was caused by smoking, but the 10th says it was caused by asbestos. The lawyer discloses the 10th pathologist as one who will testify at trial, but says nothing about the other 9 to the defendant. Can defendant’s lawyer find out that plaintiff consulted 10 pathologists? Can she find out their identities? Can she depose the other 9? Why is this important? 4

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Sanctions• Rule 11 does not apply to discovery. See 11(d)• FRCP 26(g). Very similar to Rule 11, except applies to written aspects of

discovery– Discovery requests, responses, or objections must be signed by lawyer– Disclosure is complete– requests, responses, or objections are warranted by law or non-frivolous

argument to change the law, not for improper purpose, not unreasonable or unduly burdensome

– Sanctions are mandatory. May include fees to opposing counsel• FRCP 30(d). Depositions

– Court may impose sanction (including lawyer’s fees) if person impedes, delays or frustrates deposition

• FRCP 37(a) motion to compel– If granted, court must award attorneys fees

• FRCP 37(b). Discretionary sanctions for failure to obey court order• Lots of other sanctions provisions

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Questions on Sanctions• Yeazell p. 510 Qs 1-5• 1) In Phillips v Manufacturers Hanover Trust, what rule, if any, did

defendant’s counsel violate? Be sure to consider FRCP 11, 26(g), 30(c),30(d), 37(a)(4), 37(b) and 37(d) and explain why each rule was or was not violated. Note that the Rules have been amended several times since 1994, so the reasoning in the opinion may no longer be valid.

• 2) For each rule that you think the defendant’s lawyer violated, what is the sanction? Are sanctions mandatory or discretionary?

• 3) Did the magistrate judge make the right decision in Phillips v Manufacturers Hanover Trust? If you were a law clerk to Judge Francis what would you have advised him to do?

• 4) What, if anything, should the plaintiff’s lawyer in Phillips v Manufacturers Hanover Trust have done differently?

• 5) If the plaintiff’s lawyer asked the district court judge to review the magistrate judge’s decision, is the district court judge likely to affirm the magistrate judge’s decision

Questions on A Civil Action– Explain how Shlichtmann got information to build his case. What discovery

devices did he use? What methods other than discovery did Schlichtman use to get information?

– Explain what happened on pp. 162-65. Why did Cheeseman and Frederico object when Schlichtmann asked Love whether he was concerned when he found out that the wells were contaminated? Why didn’t they instruct Love not to answer? Why did Schlictmann ask these questions?

– Explain what happened at “the woodshed”? What rules had Schlichtmann violated which led to the woodshed? Why does Shlichtmann say he’s “sorry Judge Skinner wasn’t a party to the agreement“? (pp. 222 & 226) What sanction(s) did the judge impose? Why was the woodshed so important?

– If you were Schlichtman, how would you have handled the settlement negotiation with Facher differently? (pp. 228-31). Why do you think Schlichtman acted as he did?

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Summary Judgment I• Sometimes facts revealed in discovery are so clear that trial is pointless

– Judge renders judgment without trial– Very serious because

• Deprives losing party of jury trial• Deprives losing party of ability to fully present case

• Mechanics– Party that wants summary judgment makes motion

• Memorandum in support of motion includes evidence– documents, excerpts from depositions, affiidavits/declarations…– Affidavit or declaration is statement by friendly witness

• Memorandum argues that materials show no real factual issue• Memorandum argues that law on movant’s side

– Party opposing summary judgment submits memorandum• Points to evidence showing that there is a factual issue that requires

full trial• Argues that law on non-movant’s side

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Summary Judgment II• Legal Standard

– “no genuine dispute as to any material fact and movant entitled to judgment as a matter of law.”

– “movant” = person making SJ motion (usually defendant)– Undisputed facts show that moving party prevails– No reasonable juror could find for non-moving party

• Non-moving party is party opposing motion (usually plaintiff)• Judge is not supposed to determine credibility

– No live witnesses, but affidavits and deposition transcripts– Especially of non-moving party’s witnesses– In theory, non-moving party could prevail by showing the moving party’s

witnesses are not credible (just as could at trial)• But that is rare. Hard to challenge credibility at SJ. Judges usually

believe moving party’s witnesses, unless non-moving party can produce witnesses to contradict them

• Summary judgment forces parties to do thorough discovery– Must depose witnesses etc., so have information to oppose SJ