Civ Pro Main

7/29/2019 Civ Pro Main

1/28

Civil Procedure Outline

I. The Adversarial System

A. Four Lessons

1. Doctrine

a. Formal rules of litigation (FRCP)

2. Strategy

a. Practical considerations (time, money principle)

3. Theory

a. Different frameworks for understanding the civil litigation

system

4. Skills

a. Actual practice (drafting a complaint, answer, negotiation)

B. Theories of Adjudication FRCP 1: Rules shall be construed and

administered to secure thejust, speedy and inexpensive determination of every

action. FRCP 1 does not provide much guidance. Therefore, the three theories

below are applied

1. Fair Fight

a. Judge is passive referee that simply follows and enforces

the rulesb. The only interests are those party to the litigation.

c. Mitchell v. A&K Truck on the premises

2. Justice Between the Parties

a. Judge is active and corrects for disparities between the

parties

b. Only interests are those party to the litigation

c. Conley Black workers complaint lacks sufficiency but is

accepted because need discovery

3. Greater Good

a. Judge is active and considers larger interests of society

b. Takes into account third parties (other interest than just

those before the court)


2/28

c. Bands Refuse Judge called own witnesses and

introduced own evidence

OTHER NOTES:

I. Pleadings and Motions Defined: Rule 3, 7

A. Rule 3. Commencement of Action: begins with filing of complaint

B. Rule 7. Pleadings allowed; forms of motions

1. 7(a): 2 kinds of pleadings allowed: COMPLAINT and ANSWER

a. REPLY (answer to an answer) allowed when answer contains a

COUNTERCLAIM, or by ORDER of the court

II. Initiating the Lawsuit

A. Plaintiffs Claim (Complaint)

1. Process

a. File FRCP 3: Action is started by filing the complaint

with the court

b. Serve Complaint is given to the opposing party or parties

2. Rules for assessing a complaint

a. FRCP 8(a) A pleading which sets forth a claim for relief

shall contain

8(a)(1) A short plain statement of the

grounds upon with the courts jurisdictions depends, unless the

court already has jurisdiction and the claim needs no new grounds

for jurisdiction to support it;

8(a)(2) Short, plain statement of a claim

showing pleader is entitled to relief; and

Flaws to avoid

Missing an element

i. Concerns include

cannot answer

Notice to the court


3/28

Flush out

meritless claims

Negating an element

Establishing an affirmative defense

When flawed Subject

to motion to dismiss

Particularity

Beyond reasonable doubt that plaintiff can

prove no set of facts to establish claim Connely =

Mere possibility

Particular enough that can draw fair

inference

Sutliff = fair inference

8(a)(3) a demand for judgment for the

relief the pleader seeks; relief in the alternative or of several

different types may be demanded

b. Background rules

Allegations taken as true

Allegations considered on their face (no

evidence)Mitchell v. A&K

No legal argument Sutliff

3. Notice Pleading level of detail or specificity

a. FRCP 12(b)(6) Failure to state a claim upon which relief

can be granted; complaint should not be dismissed for failure to state a

claim unless it appears beyond a doubt that P cant prove facts supporting

claim

i. Mere possibility

Complaint should not be dismissed for failure to state a claim

unless it appears beyond a doubt that the plaintiff can prove no set

of facts in support of his claim that would entitle him to relief


4/28

1. Conely v. Gibson

a. Union violated federal act by failing to represent

them fairly in collective bargaining with employer (Black

union members sue for discrimination, defendant moves to

dismiss for failure to state a claim, court holds for plaintiff.)

b. Rule 8(a) does not require a claimant to set out in

detail the facts upon which he bases his claim

ii. Fair inference

Complaint must contain either direct allegations on every material

point necessary to sustain a recovery or allegations from which an

inference fairly may be drawn that evidence of material points will

be introduced at trialSutliff v. Donovan

iii. Specific facts

Not good law - Gillispie: P claims some Goodyear (D) came on her

property, embarrasingly hauled her off, and ridiculed. Ct holds that

b/c complaint neglects to include what happened, when it

happened, who did what, etc., complaint doesnt satisfy pleading

standard (factual insufficiency) and gives D no notice what to

defend against.

b. FRCP 12(e) Request for the P to give a more definite

statement of the allegations in the complaint

i. Board of Harbor Commissioners

Facts: Oil discharged into waterway. Unclear who did it. D moves

for more definite statement in order to frame an appropriate

response pursuant to Rule 7. Court held for P.

Rule: Leans toward the fair inference standard. Information is

specific enough b/c all of the elements are addressed.

(If P gives more definite statement that is still not specific enough

can follow up with motion to dismiss)

c. FRCP 12(f) Motion to strike redundant, immaterial,

impertinent and scandalous matter


5/28

4. Policy considerations for determining whether the complaint

is specific enough (background policy considerations for borderline cases)

a. Sufficient notice to the D

b. Allows investigation

c. Provides early assessment of the merits

d. Prevents a fishing expedition

e. Who has access to the additional info

f. Harm is worthy of the litigation

5. Pleading in the alternative

a. FRCP 8(d)(1) : Each allegation must be simple, concise,

and direct

b. FRCP 8(d)(2): A party may set forth 2 or more statements

of claim or defense alternately or hypothetically

i. If by the nature of the circumstance the would not

know which allegations are right

ii. Lack of knowledge pleading in alternative is OK

iii. If facts should be known pleading in the alternative

not OK

iv. Can only collect on one of the claimsc. McCormick v Kopmann(Car Crash Case)

Facts: McCormick dies in head on collision. Wife sues (1) bar owner

(Huls) for over-serving alcohol and (2) driver (Koppman) for crossing

over the center line, causing the collision with her husband. Koppmann

moves to dismiss b/c of contradicting allegations. Denied.

Rule: Pleading in the alternative is allowed where the P lacks knowledge

about the key facts in good faith

Policy: Look at the models of adjudication

i. Justice between the parties Should not be able to

plead in the alternative if she knows the truth

ii. Fair fight Should be able to use the evidence b/c it

could be used against her


6/28

6. Heightened Pleading Standard

a. FRCP 9(b) In all averments of fraud or mistake, the

circumstances constituting fraud or mistake shall be stated with

particularity. Malice, intent, knowledge and other condition of the mind of

a person may be averred generally

i. Strong inference standard

b. PSLRA(Private Securities Litigation & Reform Act)

State with particularity facts giving rise to a strong inference that D acted

with required state of mind

i. 2nd Circuit Strong Inference Standard (majority

approach)

P must show motive and opportunity to

commit fraud

ii. 9th Circuit Great Detail Standard

P must plead with great detail for

deliberately reckless OR conscious misconduct (allegations

in detail of who, what, when, where, how)

c. Background policies for general particularity and

heightened pleadingi. Giving notice to the D and the court

ii. Sometime giving the court the ability to assess the

merits

iii. Preventing fishing expeditions

iv. Being attentive to who has the factual information

d. Ross v. Robins (Faulty Birth Control Case) 2nd

Circuit

Facts: Ross purchases shares of Robins. Robins did not report safety

and efficiency problems with the Dalkon Shield, but knew about

them. After FDA made a public disclosure of the problem, stock

prices fell. D moves to dismiss under 12(b)(6) for failure to comply

with 9(b). Move to dismiss granted. P appeals.


7/28

Rule: Cases involving the Private Securities & Litigation Reform Act

must meet a heightened pleading standard. . . strong inference

standard.

e. Cash Energy v. Weiner(Environmental Cleanup Case)

NOT GOOD LAW

Facts: Cash Energy engaged in storage and/or transfer of chemical

solvents on a site adjacent to Weiners property. Weiner believes his

land has been contaminated as a result of this activity. D moves to

dismiss under 12(b)(6) for failure to comply with 9(b). Court grants

motion to dismiss. P appeals.

Rule: Court holds cases involving CERCLA to heightened pleading

standard, but this is not the law.

f. Leathermann v.Tarrant County (Drug Bust Case)

GOOD LAW

Facts: Tarrant Co. obtains search warrants. Homeowners claimed

assault. Rule: Rule 9(b) only applies to cases involving fraud, mistake

or PSLRA. Rule 8(a)(2) still stands otherwise. Cash Energy is NOT

the law. Rely on Leatherman.

B. Defendants Response

1. RULE 12 MOTIONS

a. Rule 12(a) Timing to file responsive pleading

i. 12(a)(1)(A) Answer complaint w/in 21 days

ii. If court grants motion to dismiss do not need to answer

Timing under 12(a) Within 21

days

Within 14 days Never

Answer complaint 12(a)(1)(A)

File and serve a 12(b)(6)

motion

12(a)(4)(A) wait for

court to rule

12(b)(6) motion is denied 12(a)(4)(A)

12(b)(6) motion is


8/28

granted X

Denies 12(e) motion for

more definite statement

12(a)(4)(A)

Grants 12(e) motion for

more definite statement

12(a)(4)(B) after P

fixes complaint

b. Rule 12(b)

(b)(1) Court lacks jurisdiction over the subject matter of the suit

(b)(2) Court lacks proper jurisdiction over D

(b)(3) Court is not the proper location for the suit; improper venue

(b)(4) Insufficiency of process

(b)(5) Insufficiency of service of process

(b)(6) Failure to state a claim upon which relief may be granted

i. Motion to dismiss flaws

1. Missing an element

2. Negating an element

3. Establishing an affirmative defense

ii. Use Conely and Sutliffstandards to assess whether

12(b)(6) should be granted

iii. Court is limited to the four corners of the complaint andmust take all of the allegations as true

(b)(7) Failure to join a party

c. Rule 12(c) Motion for judgment on the pleadings (after

the complaint and answer are done)

i. Vehicle for the D to answer

ii. For failure to state a claim

iii. Motion by the P if the admits all of the relevant

allegations

iv. Can be just like motion to dismiss for failure to state a

claim, but is normally after the answer; same analysis

v. Must be brought forward without undue delay

d. Rule 12(e) Motion for a more definite statement


9/28

i. Usually used b/c unintelligible, not for want of detail

ii. If you understand what the P is saying but want more

detail, some courts grant the motion; others dont (e.g. US v. Board

of Harbors)

e. Rule 12(f) Motion to strike

f. Rule 12(g) All then available Rule 12 motions must be

consolidated into one pleading. All defenses not brought are waived

except as under 12(h)

g. Rule 12(h): Waiver or preservation of certain defenses

i. 12(h)(1) Disfavored defenses

Lack of personal jurisdiction 12(b)(2)

Improper venue 12(b)(3)

Insufficiency of process 12(b)(4)

Insufficiency of service of process 12(b)

(5)

ii. 12(h)(2) Favored defenses

Failure to state claim upon which relief

can be granted 12(b)(6)

Failure to join a party 12(b)(7)

iii. 12(h)(3) Most favored defenses

Lack of subject matter jurisdiction 12(b)

(1)

Rule Rule Explanation Defenses Timing

12(b)(1) Lack of subj matter

jurisdiction

Most favored 12(g),

12(h)(3)

Bring at any time

12(b)(6) Failure to state a

claim upon which

relief can be granted

Favored 12(g), 12(h)

(2)

Can be made in any

pleading or by

motion for

judgment on the

pleadings or at trial


10/28

on merits

12(b)(7) Failure to join a party Favored 12(g), 12(h)

(2)

Can be made in any

pleading or by

motion for

judgment on the

pleadings or at trial

on merits

12(b)(2) Lack of personal

jurisdiction

Disfavored 12(g),

12(h)(1)

Will be waived

forever if you did

not bring it with

other Rule 12

motions

12(b)(3) Improper venue Disfavored 12(g),

12(h)(1)

Will be waived

forever if you did

not bring it with

other Rule 12

motions

12(b)(4) Insufficiency or

process

Disfavored 12(g),

12(h)(1)

Will be waived

forever if you did

not bring it with

other Rule 12

motions

12(b)(5) Insufficiency of

service or process

Disfavored 12(g),

12(h)(1)

Will be waived

forever if you did

not bring it with

other Rule 12

motions

2. DEFAULT

a. FRCP 55(a) Default entry by the clerk when the has

failed to respond


11/28

b. FRCP 55(b) Default judgment by

(b)(1) Clerk if the award amount is certain; have to give 3 days notice

(b)(2) Court, P must show damages

c. FRCP 55(c) Setting aside entry of default for good

cause shown; if judgment has been entered, may likewise set aside under

Rule 60(b)

d. FRCP 60(b) relevant grounds for setting aside default

judgment would be mistake, inadvertence, excusable neglect, surprise;

this is more likely to not be set aside because it is that much more in the

process

e. Three factors courts use to evaluate setting aside (Shepard

Claims)

i. Non-defaulting party will not be prejudiced

Witnesses, evidence, SOL

ii. Defaulting party has meritorious defense

iii. No culpable conduct by defaulting party

If no prejudice and has meritorious

defense, then culpable conduct must be willful for default

to the set asidef. Shepard v. Darrah

Facts: Shepard (independent claims adjuster) alleges that Darrah

(insurance broker) failed to pay him for services rendered. After delivery

of the complaint Darrahs attorney misses filing date for answer due to

confusion about extension

Rule: Default judgment will be set aside if P is not prejudiced, D has a

meritorious defense and the conduct was not willful

3. ANSWER

a. Admitting or Denying

i. Admit an allegation as true

ii. Deny


12/28

iii. Lack knowledge or information sufficient to form a

belief

iv. Hybrid- give more particular responses, combo of

above

b. Rules

i. FRCP 8(a) Claim for Relief must state: (1) short and

plain statement for cts jx, (2) short/plain state showing P is

entitled to relief, and (3) demand for relief sought (relief in

alternative or different types of relief)

ii. FRCP 8(b) D shall respond to each averment by

either (1) admit, (2) deny or (3) lack of knowledge or information

sufficient to form a belief

LKISFB is treated as a denial

If it is found that you have sufficient

knowledge or info, then LKISFB is treated as an admission

(David v. Crompton & Knowles)

iii. FRCP 8(d) (1) Must be simple, concise, and direct,

(2) may give 2 or more defenses/claims

alternatively/hypothetically. Pleading sufficient if at least one issuff.

iv. FRCP 10(a) Need Caption

v. FRCP 10(b) Form of pleadings. Each claim or

defense should be in a separate numbered paragraph; one

allegation per paragraph

c. Purpose of the answer

i. Respond to the allegations

ii. Assert defenses

iii. Provide any counter or cross claims

d. David v. Crompton & Knowles

Facts: David was injured by a shredding machine in a factory. says they

dont have sufficient knowledge to respond an allegation, then want to


13/28

move to amend the answer to a denial. Motion to amend denied.

Rule: If you claim lack of knowledge and are found to have knowledge,

could have acquired the knowledge (Should have known) or the info

was within your control (Only one who could have known), then you

have improperly used lack of knowledge answer and your answer will be

deemed admitted instead of denied.

e. Affirmative Defenses (shield)

i. FRCP 8(c) Affirmative Defenses (list is not

exhaustive)

D must include in answer, answer to

amended complaint, or motion to dismiss or lose them

FRCP 12(h)(1)

D must raise the issue and the D must

prove it

SOL is a common affirmative defense

15(a) says you may amend an answer to

insert affirmative defense

f. Counter Claim and Cross Claim (sword)

i. FRCP 13(a) Compulsory Counterclaims must be

brought or lost

Must arise from same T&O weigh

following factors

Logical relationship between the claims

for them to be compulsory (liberal view)

Substantially the same evidence/facts -

If the same evidence would substantially dispose ofthe issues raised by the opposing claims then the

counterclaims are compulsory; if not, then they are

permissive

Substantially same law applies


14/28

ii. FRCP 13(b) Permissive Counterclaims may be

brought but do not have to; different T&O

iii. FRCP 13(g) Cross-Claim against Co-Party may be

brought if same T&O as any of claims or counter-claims

iv. Purpose

Judicial efficiency same jury, same case

load

Consistency Courts could rule

differently on the same case or issue if raised at different

times in different courts

Destroys Ps image

v. Wigglesworth v. Teamsters Union

Facts: During union meetings, Wigglesworth was prevented fromexercising his free speech rights. After the complaint was filed,

Wigglesworth holds a press conference at which he accused the

union of being mafia run and that certain union elections had been

fixed. files counterclaim. files motion to dismiss under 12(b)

(1). Motion to dismiss granted.

Rule: Test for same Transaction and Occurrence:

Logical relationship between the claims for them to be

compulsory (liberal view)

Substantially the same evidence/facts - If the same evidence

would substantially dispose of the issues raised by the opposing

claims, then the counterclaims are compulsory; if not, then they are

permissive

Type of Claim Against Same T&O Different T&O

Counter Opposing Party Compulsory 13(a)

Must be brought

Permissive 13(b)

May be brought

Cross Co-party 13(g)

May be brought

13(g)

Cannot bring


15/28

Substantially same law applies

NOTE: All of the above factors do not need to be met for there to

be same transaction and occurrence

C. Amended Pleadings

1. Process for amending

a. FRCP 15(a)(1) Party allowed to amend once as of right

within

i. 21 days after serving it, or

ii. If responsive pleading is required, 21 days after service

of resp plead or 21 days after 12(b) motion served, or whichevs is

earlier

Otherwise may only amend by:

(1) leave of the court or

(2) stipulation of the parties.

Leave shall be freely given as justice so requires

b. FRCP 15(b) When issues not raised in the pleadings are

tried by express or implied consent of both parties, they shall be treated as

if they are part of the pleadings. Amended pleading allowed, but not

required

c. If a disfavored Rule 12 motion is not brought in the answer,

you can still amend the answer to include this Rule 12 motion so long as it

is in the 20 day period

2. Standard for the court to allow a party to amend

a. Leave to amend will be given freely when justice so

requires

3. Factors the court will take into account in denying leave to

amend:

a. Undue delay

b. Bad faith

c. Prejudice to the opposing party

4. Relation back of an amended pleading


16/28

a. FRCP 15(c) Relation back of amendment

i. Swartz v. Gold Dust Casino

Facts: Swartz falls down stairs at the Gold Dust Casino. She

alleges that the stair were thread bare, worn and slippery. Also, the

stair violates the building code. files and serves a complaint

against Gold Dust and Does I through V for negligence. answers

by denying the allegations. After discovery and interrogatories,

discovered the true identity of Doe I and requests leave to amend

their complaint. files motion for summary judgment. Judge

denies the motion for summary judgment. Motion for leave to

amend is granted. Amended complaint is filed and served upon

John Cavanaugh. Cavanaugh raises 2-year statute of limitations

as an affirmative defense in answer to amended complaint and

moves for judgment on the pleadings.

Rule: Meets requirements for relation back

Changing the party or changing the name

of the party Yes, Doe I becomes Cavanaugh

Same transaction and occurrence Yes,

same day, same woman, same stairs (facts and evidence arethe same); they are both negligence claims (doesnt have to

be the exact same claim)

Timing of the notice Notice (not filing)

within 120 days of the filing of the complaint; ONLY

NOTICE OF THE COMPLAINT IS REQUIRED, NOT

FILING

Form of notice Cavanaugh got the

amended complaint in the motion for leave to amend, also

companies are so overlapped it is reasonable to assume that

Cavanaugh would have known of the action

But for a mistake about identity

Cavanaugh knew but for a mistake of identity that they


17/28

would have been sued

Cavanaugh would argue wasnt a mistake, it was ignorance

ii. David v.Crompton & Knowles

Rule: Meets the requirements for relation back

Change the defendant Yes, change

Crompton to Hunter

Same T&O Yes, same accident, law, etc.

Timing of notice Maybe, Hunter is a

division of Crompton (overlap of corporate entities)

Form of notice yes

But for a mistake Hunter would

recognize that they would be on the hook for the machine;

David thought Crompton was the manufacture. Maybe a

mistake about ownership rights, not who is the

manufacturer

D. Rule 11

1. FRCP 11(a) Failure to sign a pleading, written motion or other

written paper

2. FRCP 11(b) In representations to the court attorney is

certifying that he has made a reasonable inquiry and that to the best of his

knowledge, information and belief (Grounds for Sanctions)

a. No improper purpose

b. Claims, defenses or other legal contentions are supported

by existing law or by a non-frivolous argument for the extension of

existing law

c. Allegations have evidentiary support

d. Denials of factual contentions are warranted on the

evidence or are reasonably based on a lack of information or belief

3. FRCP 11(c) Options for Sanction/types of sanctions

4. FRCP 11(d) Rule 11 sanctions do not apply to discovery

(Rules 26-37)


18/28

5. Rule 11 Sanctions Process 11(b)

a. Basis under 11(b)(1)-(4)

i. 11(b)(1) Improper purpose, including delay

ii. 11(b)(2) No basis in existing law

(two components, only have to meet one)

Subjective must believe had legal

argument

Objective must actually have legal

argument

iii. 11(b)(3) No basis in evidence for the allegation or

assertion

iv. 11(b)(4) No basis in evidence for the denial

v. Creates standards/duty

vi. Notwithstanding your good faith if knowledge or

information was not reasonably researched, subject to sanctions

b. Initiating Process by motion or by court (no safe harbor

when court initiates)

i. Serve motion on party who then has 21 days to correct problem or

motion is filed in courtii. Motion has to describe conduct

iii. Motion has to be separate from any other motion

c. Decision Process

i. Court has to give party chance to respond

ii. Describe conduct explicitly

iii. Describe basis for sanctions

d. Discretion

i. Can violate the basis and not be sanctioned

e. Type of Sanctions

i. Designed to deter not to compensate, because court was using as

cost shifting mechanism

ii. Only strong enough sanction to deter conduct


19/28

iii. Court can refer to state bar, or to go to school, reprimand

iv. A represented party can be sanctioned

Not monetary if basis is 11(b)(2) because client is not

expected to know the law

v. Attorneys fees and costs only available on motion

f. Target

i. Attorney

ii. Firm

iii. Party


20/28

Identify the

action

Basis for

sanction

Initiation Decision

Process

Discretion Types of

Sanctions

Target of

Sanction

Signing 11(a):

Failure to

sign paper

Notify

party, court

N/A Shall. 11(a)

No other

option

Strike N/A

Signing,

filing,

submitting,

or later

advocating

position

with

-improper

purpose (b)

(1)

-no basis in

law (b)(2)

-no basis in

evidence forallegation or

assertion (b)

(3)

-no basis in

evidence for

denial (b)(4)

Sanctioned

if frivolous

either:

-subjectively

(belief) or

-objectively

(no

reasonable

inquiry;

frivolous

legal

argument)

11(b)

Partys

motion:

-serve 21

days before

filing (safe

harbor)

-describeconduct

-only if not

corrected

-not

combine

with other

motion

11(c)(2)

Notice and

opportunity

to respond

11(c)

Order:

-describeconduct

-explain

basis for

sanction

11(c)(3)

May. 11(c)

(4) Can use

discretion

Goal: Deter, not

compensate

11(c)(5)

Options:

-nonmonetary

directive (go toclasses)

-monetary fine to

court

pay other sides

attorneys fees or

costs 11(5)

Restrictions:

-attorneys fees

and costs only if

on motion. 11(c)

(5)

Party, attorney

law firm, or

combination.

11(3)


21/28

6. Zuk

Facts: Zuk, psychologist, had EPPI record therapy sessions for rental. Writes

books that has transcripts from session and gets copyright. Zuk furloughed

(fired). Zuk requests copies of the tapes. EPPI ignores the requests. Requests

them again 1994. Requests are denied.

Rule:

DISCOVERY

III. Discovery

A. Analyze

1. Proper use of device

a. Must be described with reasonable particularity

2. Responsive

a. Did the party ask for it?

3. Relevance Rule 26(b)(1)

a. Reasonably calculated to lead to discovery of admissible

evidence pertaining to claim or defense

i. Merits

ii. Background

iii. Impeach/Corroborate

iv. Clues

If relevant to claim or defense do not need to make

showing

If relevant to subject matter, burden of proof shifts

to party seeking discovery (need court order and good

cause shown)

4. Protected

a. Privacy Rule 26(c)

i. Annoyance, embarrassment

ii. Undue burden or expense Rule 26(b)(2)(C)(iii)


22/28

Other means, source for same information

Already been ample opportunity for

discovery

Rule 26(b)(2)(C)

How much is it in controversy

What are parties resources

Needs of case

How relevant

What are important issues

Are there alternative sources of

information Consider models of adjudication

iii. Trade secrets Rule 26(c)

Economic detriment

Secret not generally known

Injury has to be clearly defined, serious

injury

Competitive disadvantage

Balance between harm of disclosure and

necessity to litigation

b. Protective Order Rule 26(c)

5. Privilege

a. Elements

i. With client (or prospective client)

Upjohn Modified control group test

which stated that only those in corporation who are in a

position to control or even take a substantial part in

decision about any action which the corporation may take

upon advice of attorney


23/28

Modification to protect parties (lower and

mid-level employees) who disclose and in

corporation will need lower level employees to

disclose in order to find out what happened

ii. Legal advice

iii. Legal advisor

iv. Relate to advice

v. In confidence

6. Work Product Rule 26(b)(3)

a. Prepared in anticipation of litigation or for trial

b. By or for another party, or by of for that other partys

representative (including attorney)

Party may obtain discovery of ORDINARY WORK PRODUCT

(but not opinion work product) if:

i. Substantial need

ii. Party cannot get the substantial equivalent without

undue hardship

In ordering discovery of such materials,

courtshallprotect against disclosure of mental impressions,conclusions, opinions or legal theories of attorney or other

representative (OPINION WORK PRODUCT)

Courts generally abide by this and protect

against disclosure of opinion work product

9th Circuit (minority view) Allows

discovery of opinion work product if (1) pivotal

issue and (2) compelling need (not applied to

attorney opinion work product)

Must list in privilege log

B. Discovery Devices

1. Initial Disclosures Rule 26(a)(1)


24/28

a. 26(a)(1)(A) Party must disclose (provide or describe)

what she is going to use to support her claim or defense (do not have to

provide that which is harmful at this stage)

i. Potential witnesses (name, address, telephone)

ii. Documents

iii. Damages

iv. Insurance

2. Depositions Rule 30

a. Testimony under oath that is recorded

b. Reasonable notice

c. Limited to 10 depositions

d. One day, seven hours per depositions

e. Only get to depose person once

f. Third parties can be deposed (special rules apply)

g. Rule 30(b)(6) Describe in reasonable terms the category

of person you want to depose, other side must provide the person that fits

that category

h. Objections to form

i. Compound

ii. Confusing/Unintelligible

iii. Vague or ambiguous

iv. Misleading

v. Asked and answered

vi. Argumentative

vii. Mischaracterized witness testimony/Assumes facts not in evidence

If objections not made at deposition, waive

right for answer not to be admitted into evidence later

Even after objection witness may answer,

objections only serve to make answer inadmissible later

Rule 30(d)(1)

Instruct not to answer


25/28

Privilege

Protective order in place or going to seek

one

Any objection must be state concisely,

speaking objections not permitted

3. Request for production (RFPs) Rule 34

a. Describe a category with reasonable particularity

b. 30 days to respond (written response including objections)

c. Rule 34(b) Produce those documents that are in

producing partys protection, control or custody (as kept or in categories,

but not scrambled)

d. Rule 26(b)(5) Privilege or work product

i. Materials that are attorney-client privilege

ii. Work product in preparation of litigation

Privilege log Must create a log of those

items that are privileged, describe in general terms with

objection

4. Interrogatories (Rogs) Rule 33

a. Limited to 25 in number including subparts

b. 30 days to respond

i. Written answers by attorney and signed off by party

ii. Obligation to answer if reasonably obtainable

Rule 33(d) If have to look through a

large amount of records can just give other party records in

lieu of answering (shift burden to requesting party)

c. Contention interrogatories Identify every fact (or all

evidence) that supports your contention that X

i. Most courts will not allow early on

ii. Used to prove negative (to prove other side has no evidence of X)

5. Exams Rule 35


26/28

a. Parties or those in care, custody or control of party (read

narrowly)

b. Must be in controversy

c. Good cause shown

d. Must have stipulation by parties or court order

6. Request for admission (RFAs) Rule 36

a. Extension of pleadings

C. Limitations on discovery

1. Rule 26(b)(2)(iii) Undue burden

a. Outweighs likely benefits

b. Needs of case

c. Amount in controversy

d. Parties resources

e. Importance of the issue at stake

f. Importance of proposed discovery in resolving the issue

SUMMARY JUDGMENT

IV. Summary Judgment

A. Rule 56(a)

1. Claimant can move 20 days after commencement of action or

after opposing party moves for summary judgment

B. Rule 56(b)

1. Defending party can move for summary judgment at any time

C. Rule 56(c)

1. Motion must be served at least 10 days before hearing (most

courts require at least 21 days)

2. Standard Summary judgment shall be granted if moving party

makes showing that there is no genuine issue as to any material fact

a. What is fact at issue and why is it material?

i. Material if relevant to an element or affirmative defense

b. Is there a genuine issue about it?


27/28

i. Is it plausible that could come out either way?

Adickes v. S.H. Kress & Co.

Key fact Was there police officer in

store?

Material to whether there was a conspiracy

D did not come up with enough evidence

to initiate

D cannot do nothing in moving for SJ,

must make some kind of showing (vague as to what

this requires)

Celotex v. Catrett

Key fact Was P exposed to Ds product?

Material to causation

Rather than showing through affirmative

evidence, D made showing that absence of evidence

on other side (contention interrogatories often used)

Absence of evidence Courts are split on

moving partys burden

Point out there is no evidence (just

state)

Point to evidence in record to show

lack of evidence

D. Rule 56(f)

1. Not enough chance for discovery on issue (premature)

E. Burden of production Whether party has sufficient evidence to go to

trial

F. Burden of persuasion Which party must convince trier of fact

G. Party with burden of proof moves

1. Every reasonable jury wouldconclude that it is more likely than

not that moving party is right


28/28

2. Ex. Every reasonable jury would conclude that it is more likely

than not that Jacques threw the rock

a. Required to make initial showing

b. Only if initial showing is strongly supported does opposing

party have to respond

i. Burden of opposing party is to provide enough

evidence to undermine moving partys evidence sufficiently

such that a reasonable jury could conclude that moving party is

not more likely than not right

H. Party who does not have burden of proof moves

1. No reasonable jury wouldconclude that more likely than not that

party opposing summary judgment is right

2. Ex. No reasonable jury would conclude that it is more likely

than not that Jacques threw the rock

a. Initial showing Logically would make sense not to

require initial showing, but if this were the case could be used as a weapon

too easily

Celotex Ambiguous which of two standard applies

o

Either merely point out that other side has no evidenceo Or must do discovery to show that other side has no evidence

i. Burden of opposing party is to provide enough evidence

that a reasonable jury could conclude that it is more likely than

not right

ii. Note that since party opposing summary judgment will

have burden of persuasion at trial, if moving party has met its

burden, simply attacking the moving partys evidence will not

suffice to survive summary judgment